Federal Register Vol. 82, No.216,

The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank Act) amended the Truth in Lending Act (TILA) to add special appraisal requirements for “higher-risk mortgages.” 1 In January 2013, the Agencies issued a joint final rule implementing these requirements and adopted the term “higher-priced mortgage loan” (HPML) instead of “higher-risk mortgage” (the January 2013 Final Rule).2 In July 2013, the Agencies proposed additional exemptions from the January 2013 Final Rule (the 2013 Supplemental Proposed Rule).3 In December 2013, the Agencies issued a supplemental final rule with additional exemptions from the January 2013 Final Rule (the December 2013 Supplemental Final Rule).4 Among other exemptions, the Agencies adopted an exemption from the new HPML appraisal rules for transactions of $25,000 or less, to be adjusted annually for inflation.

The OCC's, the Board's, and the Bureau's versions of the January 2013 Final Rule and December 2013 Supplemental Final Rule and corresponding official interpretations are substantively identical. The FDIC, NCUA, and FHFA adopted the Bureau's version of the regulations under the January 2013 Final Rule and December 2013 Supplemental Final Rule.5

The OCC's, Board's, and Bureau's regulations,6 and their accompanying interpretations,7 provide that the exemption threshold for smaller loans will be adjusted effective January 1 of each year based on any annual percentage increase in the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W) that was in effect on the preceding June 1. Any increase in the threshold amount will be rounded to the nearest $100 increment. For example, if the annual percentage increase in the CPI-W would result in a $950 increase in the threshold amount, the threshold amount will be increased by $1,000. However, if the annual percentage increase in the CPI-W would result in a $949 increase in the threshold amount, the threshold amount will be increased by $900. If there is no annual percentage increase in the CPI-W, the OCC, the Board, and the Bureau will not adjust the threshold amounts from the prior year.8

I. Background

The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank Act) increased the threshold in the Consumer Leasing Act (CLA) for exempt consumer leases, and the threshold in the Truth in Lending Act (TILA) for exempt consumer credit transactions,1 from $25,000 to $50,000, effective July 21, 2011.2 In addition, the Dodd-Frank Act requires that, on and after December 31, 2011, these thresholds be adjusted annually for inflation by the annual percentage increase in the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W), as published by the Bureau of Labor Statistics. In April 2011, the Board issued a final rule amending Regulation M (which implements the CLA) consistent with these provisions of the Dodd-Frank Act, along with a similar final rule amending Regulation Z (which implements TILA) (collectively, the Board Final Threshold Rules).3

Title X of the Dodd-Frank Act transferred rulemaking authority for a number of consumer financial protection laws from the Board to the Bureau, effective July 21, 2011. In connection with this transfer of rulemaking authority, the Bureau issued its own Regulation M implementing the CLA, 12 CFR 1013, substantially duplicating the Board's Regulation M.4 Although the Bureau has the authority to issue rules to implement the CLA for most entities, the Board retains authority to issue rules under the CLA for certain motor vehicle dealers covered by section 1029(a) of the Dodd-Frank Act, and the Board's Regulation M continues to apply to those entities.5

The Board's and the Bureau's regulations,6 and their accompanying commentaries, provide that the exemption threshold will be adjusted annually effective January 1 of each year based on any annual percentage increase in the CPI-W that was in effect on the preceding June 1. They further provide that any increase in the threshold amount will be rounded to the nearest $100 increment. For example, if the annual percentage increase in the CPI-W would result in a $950 increase in the threshold amount, the threshold amount will be increased by $1,000. However, if the annual percentage increase in the CPI-W would result in a $949 increase in the threshold amount, the threshold amount will be increased by $900.7 Since 2011, the Board and the Bureau have adjusted the Regulation M exemption threshold annually, in accordance with these rules.

On November 30, 2016, the Board and the Bureau published a final rule in the Federal Register to memorialize the calculation method used by the agencies each year to adjust the exemption threshold to ensure that the values for the exemption threshold keep pace with the CPI-W as contemplated by section 1100E(b) of the Dodd-Frank Act (Regulation M Adjustment Calculation Rule).8 The Regulation M Adjustment Calculation Rule memorialized the policy that if there is no annual percentage increase in the CPI-W, the Board and Bureau will not adjust the exemption threshold from the prior year. The Regulation M Adjustment Calculation Rule also provided that in years following a year in which the exemption threshold was not adjusted because there was a decrease in the CPI-W from the previous year, the threshold is calculated by applying the annual percentage change in the CPI-W to the dollar amount that would have resulted, after rounding, if the decreases and any subsequent increases in the CPI-W had been taken into account. If the resulting amount calculated, after rounding, is greater than the current threshold, then the threshold effective January 1 the following year will increase accordingly; if the resulting amount calculated, after rounding, is equal to or less than the current threshold, then the threshold effective January 1 the following year will not change, but future increases will be calculated based on the amount that would have resulted, after rounding.

Effective January 1, 2018, the exemption threshold amount is increased from $54,600 to $55,800. This is based on the CPI-W in effect on June 1, 2017, which was reported on May 12, 2017. The Bureau of Labor Statistics publishes consumer-based indices monthly, but does not report a CPI change on June 1; adjustments are reported in the middle of the prior month. The CPI-W is a subset of the CPI-U index (based on all urban consumers) and represents approximately 28 percent of the U.S. population. The CPI-W reported on May 12, 2017 reflects a 2.1 percent increase in the CPI-W from April 2016 to April 2017. Accordingly, the 2.1 percent increase in the CPI-W from April 2016 to April 2017 results in an exemption threshold amount of $55,800. The Board and the Bureau are revising the commentaries to their respective regulations to add new comment 2(e)-11.ix to state that, from January 1, 2018 through December 31, 2018, the threshold amount is $55,800. These revisions are effective January 1, 2018.

Under the Administrative Procedure Act, notice and opportunity for public comment are not required if the Board and the Bureau find that notice and public comment are impracticable, unnecessary, or contrary to the public interest.9 The amendments in this rule are technical and apply the method previously set forth in the Board Final Threshold Rules and the Regulation M Adjustment Calculation Rule. For these reasons, the Board and the Bureau have determined that publishing a notice of proposed rulemaking and providing opportunity for public comment are unnecessary. Therefore, the amendments are adopted in final form.

The Regulatory Flexibility Act (RFA) does not apply to a rulemaking where a general notice of proposed rulemaking is not required.10 As noted previously, the agencies have determined that it is unnecessary to publish a general notice of proposed rulemaking for this joint final rule. Accordingly, the RFA's requirements relating to an initial and final regulatory flexibility analysis do not apply.

In accordance with the Paperwork Reduction Act of 1995,11 the agencies reviewed this final rule. No collections of information pursuant to the Paperwork Reduction Act are contained in the final rule.

For the reasons set forth in the preamble, the Board amends Regulation M, 12 CFR part 213, as set forth below:

For the reasons set forth in the preamble, the Bureau amends Regulation M, 12 CFR part 1013, as set forth below:

The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank Act) increased the threshold in the Truth in Lending Act (TILA) for exempt consumer credit transactions,1 and the threshold in the Consumer Leasing Act (CLA) for exempt consumer leases, from $25,000 to $50,000, effective July 21, 2011.2 In addition, the Dodd-Frank Act requires that, on and after December 31, 2011, these thresholds be adjusted annually for inflation by the annual percentage increase in the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W), as published by the Bureau of Labor Statistics. In April 2011, the Board issued a final rule amending Regulation Z (which implements TILA) consistent with these provisions of the Dodd-Frank Act, along with a similar final rule amending Regulation M (which implements the CLA) (collectively, the Board Final Threshold Rules).3

Title X of the Dodd-Frank Act transferred rulemaking authority for a number of consumer financial protection laws from the Board to the Bureau, effective July 21, 2011. In connection with this transfer of rulemaking authority, the Bureau issued its own Regulation Z implementing TILA, 12 CFR part 1026, substantially duplicating the Board's Regulation Z.4 Although the Bureau has the authority to issue rules to implement TILA for most entities, the Board retains authority to issue rules under TILA for certain motor vehicle dealers covered by section 1029(a) of the Dodd-Frank Act, and the Board's Regulation Z continues to apply to those entities.5

The Board's and the Bureau's regulations,6 and their accompanying commentaries, provide that the exemption threshold will be adjusted annually effective January 1 of each year based on any annual percentage increase in the CPI-W that was in effect on the preceding June 1. They further provide that any increase in the threshold amount will be rounded to the nearest $100 increment. For example, if the annual percentage increase in the CPI-W would result in a $950 increase in the threshold amount, the threshold amount will be increased by $1,000. However, if the annual percentage increase in the CPI-W would result in a $949 increase in the threshold amount, the threshold amount will be increased by $900.7 Since 2011, the Board and the Bureau have adjusted the Regulation Z exemption threshold annually, in accordance with these rules.

On November 30, 2016, the Board and the Bureau published a final rule in the Federal Register to memorialize the calculation method used by the agencies each year to adjust the exemption threshold to ensure that the values for the exemption threshold keep pace with the CPI-W as contemplated by section 1100E(b) of the Dodd-Frank Act (Regulation Z Adjustment Calculation Rule).8 The Regulation Z Adjustment Calculation Rule memorialized the policy that if there is no annual percentage increase in the CPI-W, the Board and Bureau will not adjust the exemption threshold from the prior year. The Regulation Z Adjustment Calculation Rule also provided that in years following a year in which the exemption threshold was not adjusted because there was a decrease in the CPI-W from the previous year, the threshold is calculated by applying the annual percentage change in the CPI-W to the dollar amount that would have resulted, after rounding, if the decreases and any subsequent increases in the CPI-W had been taken into account. If the resulting amount calculated, after rounding, is greater than the current threshold, then the threshold effective January 1 the following year will increase accordingly; if the resulting amount calculated, after rounding, is equal to or less than the current threshold, then the threshold effective January 1 the following year will not change, but future increases will be calculated based on the amount that would have resulted, after rounding.

Effective January 1, 2018, the exemption threshold amount is increased from $54,600 to $55,800. This is based on the CPI-W in effect on June 1, 2017, which was reported on May 12, 2017. The Bureau of Labor Statistics publishes consumer-based indices monthly, but does not report a CPI change on June 1; adjustments are reported in the middle of the prior month. The CPI-W is a subset of the CPI-U index (based on all urban consumers) and represents approximately 28 percent of the U.S. population. The CPI-W reported on May 12, 2017 reflects a 2.1 percent increase in the CPI-W from April 2016 to April 2017. Accordingly, the 2.1 percent increase in the CPI-W from April 2016 to April 2017 results in an exemption threshold amount of $55,800. The Board and the Bureau are revising the commentaries to their respective regulations to add new comment 3(b)-3.ix to state that, from January 1, 2018 through December 31, 2018, the threshold amount is $55,800. These revisions are effective January 1, 2018.

Under the Administrative Procedure Act, notice and opportunity for public comment are not required if the Board and the Bureau find that notice and public comment are impracticable, unnecessary, or contrary to the public interest.9 The amendments in this rule are technical and apply the method previously set forth in the Board Final Threshold Rules and the Regulation Z Adjustment Calculation Rule. For these reasons, the Board and the Bureau have determined that publishing a notice of proposed rulemaking and providing opportunity for public comment are unnecessary. Therefore, the amendments are adopted in final form.

The Regulatory Flexibility Act (RFA) does not apply to a rulemaking where a general notice of proposed rulemaking is not required.10 As noted previously, the agencies have determined that it is unnecessary to publish a general notice of proposed rulemaking for this joint final rule. Accordingly, the RFA's requirements relating to an initial and final regulatory flexibility analysis do not apply.

In accordance with the Paperwork Reduction Act of 1995,11 the agencies reviewed this final rule. No collections of information pursuant to the Paperwork Reduction Act are contained in the final rule.

For the reasons set forth in the preamble, the Board amends Regulation Z, 12 CFR part 226, as set forth below:

For the reasons set forth in the preamble, the Bureau amends Regulation Z, 12 CFR part 1026, as set forth below:

On October 12, 2017, we issued Emergency AD 2017-21-51, (“AD 2017-21-51”), which was immediately effective to owners and operators of EA GP7200 series turbofan engines. AD 2017-21-51 required visual inspections of the GP7200 series engine fan hubs for damage. AD 2017-21-51 resulted from an uncontained engine failure that occurred on an EA GP7270 turbofan engine. We issued AD 2017-21-51 to prevent an uncontained release of the fan hub, damage to the engine, and damage to the airplane.

Since we issued AD 2017-21-51, we determined a need to clarify the compliance requirements. We are issuing this AD to correct the unsafe condition on these products.

We reviewed EA Alert Service Bulletin (ASB) EAGP7-A72-383, Revision No. 1, dated October 12, 2017. The ASB describes procedures for visual inspections of all fan hubs for damage. 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 issuing 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 AD requires visual inspections of all fan hubs for damage.

We consider this AD interim action. An investigation to determine the cause of the failure is on-going and we may consider additional rulemaking if final action is identified.

An unsafe condition exists that requires the immediate adoption of this AD without providing an opportunity for public comments prior to adoption. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because no U.S. operators are affected. Therefore, we find good cause that notice and opportunity for prior public comment are impracticable. In addition, for the reason stated above, we find that good cause exists for making this amendment effective in less than 30 days.

This AD is a final rule that involves requirements affecting flight safety, and we did not provide you with notice and an opportunity to provide your comments before it becomes effective. However, we invite you to send any written data, views, or arguments about this final rule. Send your comments to an address listed under the ADDRESSES section. Include the docket number FAA-2017-0988 and product identifier 2017-NE-37-AD at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this final rule. We will consider all comments received by the closing date and may amend this final rule 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 final rule.

We estimate that this AD affects no engines installed on airplanes of U.S. registry.

We estimate the following costs to comply with this 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.

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

For the reasons discussed above, I certify that this AD:

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

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

(3) Will not affect intrastate aviation in Alaska, to the extent that it justifies making a regulatory distinction, 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 amends part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:

This amendment to part 95 of the Federal Aviation Regulations (14 CFR part 95) amends, suspends, or revokes IFR altitudes governing the operation of all aircraft in flight over a specified route or any portion of that route, as well as the changeover points (COPs) for Federal airways, jet routes, or direct routes as prescribed in part 95.

The specified IFR altitudes, when used in conjunction with the prescribed changeover points for those routes, ensure navigation aid coverage that is adequate for safe flight operations and free of frequency interference. The reasons and circumstances that create the need for this amendment involve matters of flight safety and operational efficiency in the National Airspace System, are related to published aeronautical charts that are essential to the user, and provide for the safe and efficient use of the navigable airspace. In addition, those various reasons or circumstances require making this amendment effective before the next scheduled charting and publication date of the flight information to assure its timely availability to the user. The effective date of this amendment reflects those considerations. In view of the close and immediate relationship between these regulatory changes and safety in air commerce, I find that notice and public procedure before adopting this amendment are impracticable and contrary to the public interest and that good cause exists for making the amendment effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, pursuant to the authority delegated to me by the Administrator, part 95 of the Federal Aviation Regulations (14 CFR part 95) is amended as follows effective at 0901 UTC, December 7, 2017.

On June 16, 2017, President Trump announced changes to U.S. policy toward Cuba that are intended to enhance compliance with United States law; hold the Cuban regime accountable for oppression and human rights abuses; further the national security and foreign policy interests of the United States and the interests of the Cuban people; and lay the groundwork for empowering the Cuban people to develop greater economic and political liberty. The President's policy is stated in the National Security Presidential Memorandum on Strengthening the Policy of the United States Toward Cuba (“Cuba NSPM”), dated June 16, 2017. The Cuba NSPM also directs the Secretary of Commerce, as well as the Secretaries of State and the Treasury, to take certain actions to implement the President's Cuba policy.

The Department of Commerce's Bureau of Industry and Security (“BIS”) is issuing this final rule to implement portions of the Cuba NSPM. The Department of the Treasury's Office of Foreign Assets Control (“OFAC”) and the Department of State are simultaneously publishing related actions in the Federal Register.

In accordance with the statutory embargo of Cuba, license applications for the export or reexport to Cuba of items subject to the Export Administration Regulations (“EAR”) currently are subject to a general policy of denial unless the transactions are eligible for another review policy stated in § 746.2(b). License applications for certain export or reexport transactions are reviewed on a case-by-case basis or under a general policy of approval, depending upon the types of items, end uses, and end users involved, as described in the EAR.

On January 27, 2016, BIS created a case-by-case licensing policy in paragraph (b)(3)(i) of § 746.2 of the EAR for applications to export or reexport items to meet the needs of the Cuban people, including exports and reexports of such items to state-owned enterprises, agencies, and other organizations of the Cuban government that provide goods and services for the use and benefit of the Cuban people (81 FR 4580). Note 2 to paragraph (b)(3)(i) explains that BIS generally will deny applications to export or reexport items for use by state-owned enterprises, agencies, and other organizations that primarily generate revenue for the state, including those engaged in tourism and those engaged in the extraction or production of minerals or other raw materials. Note 2 to paragraph (b)(3)(i) also explains that BIS generally will deny applications for the export or reexport of items destined to the Cuban military, police, intelligence, or security services.

Pursuant to section 3(a) of the Cuba NSPM, this rule amends note 2 to paragraph (b)(3)(i) of § 746.2 of the EAR to clarify that BIS also generally will deny applications for the export or reexport of items for use by certain entities or subentities the State Department identifies on its List of Restricted Entities and Subentities associated with Cuba (“Cuba Restricted List”), unless such transactions are determined to be consistent with the Cuba NSPM. Section 3(a)(i) of the Cuba NSPM directs the Secretary of State to publish a list of entities and subentities that it has determined (1) are under the control of, or act for or on behalf of, the Cuban military, intelligence, or security services or personnel and (2) with which direct financial transactions would disproportionately benefit such services or personnel at the expense of the Cuban people or private enterprise in Cuba (Cuba Restricted List). Today the Department of State is publishing that list in the Federal Register and posting it on its Web site at https://www.state.gov/e/eb/tfs/spi/cuba/cubarestrictedlist/index.htm.

Section 3(a)(ii) of the Cuba NSPM states that regulatory changes made pursuant to section 3(a) shall prohibit direct financial transactions with entities or subentities identified by the Department of State's Cuba Restricted List unless the transactions are determined by the Secretary of Commerce or the Secretary of the Treasury, in coordination with the Secretary of State, to be consistent with the policy in section 2 and the criteria specified in section 3(a)(iii)(A)-(I) of the Cuba NSPM. Consequently, license applications submitted to BIS that involve one or more parties on the Department of State's Cuba Restricted List generally will be denied unless the transactions are determined by BIS, in coordination with the Department of State, to be consistent with the aforementioned sections of the Cuba NSPM.

License exceptions authorize certain exports and reexports pursuant to specified terms and conditions. Only the license exceptions specified in § 746.2(a)(1) of the EAR are available for exports and reexports to Cuba. License Exceptions Gift Parcels and Humanitarian Donations (“GFT”), Consumer Communications Devices (“CCD”), and Support for the Cuban People (“SCP”) (§§ 740.12, 740.19, and 740.21 of the EAR, respectively) specify certain eligible and ineligible Cuban transaction parties. On October 17, 2016, BIS revised its list of ineligible Cuban government officials in §§ 740.12(a)(2)(v)(A), 740.19(c)(2)(i), and 740.21(d)(4)(ii) of the EAR to correspond to amendments OFAC made to its definition of prohibited officials of the Government of Cuba in § 515.337 of the Cuban Assets Control Regulations (“CACR”) (31 CFR part 515) (81 FR 71365).

In accordance with section 3(d) of the Cuba NSPM, today OFAC is amending its definition of prohibited officials of the Government of Cuba to include certain additional individuals. This rule amends the list of ineligible Cuban government officials in §§ 740.12(a)(2)(v)(A), 740.19(c)(2)(i), and 740.21(d)(4)(ii) of the EAR to conform with OFAC's amendment.

On January 16, 2015, BIS created License Exception Support for the Cuban People (SCP) in § 740.21 of the EAR to authorize the export and reexport of certain items to Cuba that are intended to improve the living conditions of the Cuban people; support independent economic activity and strengthen civil society in Cuba; and improve the free flow of information to, from, and among the Cuban people (80 FR 2286). On September 21, 2015, March 16, 2016, and October 17, 2016, BIS amended License Exception SCP to authorize additional categories of exports and reexports intended to further benefit the Cuban people (80 FR 56898, 81 FR 13972, and 81 FR 71365, respectively).

Consistent with section 2(d) of the Cuba NSPM, this rule revises § 740.21(b) to further support free enterprise in Cuba. Prior to this rule, the text in § 740.21(b)(1)-(3) identified certain types of items, such as tools and equipment, that were eligible for export or reexport to Cuba for (1) use by the private sector to construct or renovate privately-owned buildings, (2) private sector agricultural activities, or (3) use by private sector entrepreneurs. This rule simplifies and expands § 740.21(b) by creating a single provision authorizing the export and reexport to Cuba of items, without specifying types, for use by the Cuban private sector for private sector economic activities. To be eligible for this provision, the items may not be used to primarily generate revenue for the state or used to contribute to the operation of the state, including through the construction or renovation of state-owned buildings. Additionally, eligible items are limited to those that are designated as EAR99 or controlled only for anti-terrorism reasons on the Commerce Control List (“CCL”). Of note, medicines, medical devices, and agricultural commodities are not eligible for any provision of License Exception SCP due to limitations in the Cuban Democracy Act of 1992, as amended (22 U.S.C. 6001-6010) and the Trade Sanctions Reform and Export Enhancement Act of 2000, as amended (22 U.S.C. 7201-7211).

Although the Export Administration Act of 1979 expired on August 20, 2001, the President, through Executive Order 13222 of August 17, 2001, 3 CFR, 2001 Comp., p. 783 (2002), as amended by Executive Order 13637 of March 8, 2013, 78 FR 16129 (March 13, 2013) and as extended by the Notice of August 15, 2017, 82 FR 39005 (August 16, 2017), has continued the Export Administration Regulations in effect under the International Emergency Economic Powers Act. BIS continues to carry out the provisions of the Export Administration Act of 1979, as appropriate and to the extent permitted by law, pursuant to Executive Order 13222, as amended by Executive Order 13637.

1. Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has been designated a “significant regulatory action,” although not economically significant, under section 3(f) of Executive Order 12866. Accordingly, the rule has been reviewed by the Office of Management and Budget (OMB). This rule is not subject to the requirements of E.O. 13771 (82 FR 9339, February 3, 2017) because it is issued with respect to a foreign affairs function of the United States.

2. Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), unless that collection of information displays a currently valid OMB control number. This rule involves a collection of information approved under OMB control number 0694-0088—Simplified Network Application Processing+ System (SNAP+) and the Multipurpose Export License Application, which carries an annual estimated burden of 31,833 hours. BIS believes that this rule will have no significant impact on that burden. To the extent that it has any impact, BIS believes that this rule will reduce the paperwork burden to the public because it will make some transactions that currently require a license from BIS eligible for a license exception. In those instances, exporters and reexporters will be relieved of the burden of applying for a license. Although this rule makes certain additional Cuban government officials ineligible for specified license exceptions, BIS believes that this change will result in the submission of very few, if any, additional license applications.

Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing the burden, to Jasmeet K. Seehra, Office of Management and Budget, by email at [email protected] or by fax to (202) 395-7285.

3. This rule does not contain policies with Federalism implications as that term is defined under Executive Order 13132.

4. The provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking and the opportunity for public participation, and a delay in effective date, are inapplicable because this regulation involves a military or foreign affairs function of the United States (see 5 U.S.C. 553(a)(1)). This rule implements portions of the President Trump's policy toward Cuba, as directed by the National Security Presidential Memorandum on Strengthening the Policy of the United States Toward Cuba, dated June 16, 2017. Delay in implementing this rule to obtain public comment would undermine the foreign policy objectives that the rule is intended to implement. Further, no other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule under 5 U.S.C. 553, or by any other law, the requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) are not applicable.

For the reasons set forth in the preamble, 15 CFR Chapter VII, Subchapter C is amended as follows:

OSHA is publishing this final rule to further extend by one year the employer duty to ensure the competency of crane operators involved in construction work. Previously this duty was scheduled to terminate on November 10, 2017, but now continues until November 10, 2018. OSHA also is further delaying the deadline for crane operator certification for one year from November 10, 2017, to November 10, 2018. As explained in more detail in the following Regulatory Background section, the extension and delay are necessary to provide sufficient time for OSHA to complete a related rulemaking to address issues with its existing Cranes and Derricks in Construction standard (29 CFR part 1926, subpart CC, referred to as “the crane standard” hereafter) (75 FR 47905).

In establishing the effective date of this action, the Agency finds good cause pursuant to 5 U.S.C. 553(d)(3) of the Administrative Procedure Act that this rule be made effective on November 9, 2017, rather than delaying the effective date for 30 days after publication. The basis for this finding is that it is unnecessary to delay this effective date to provide an additional period of time for employers to comply with a new requirement because OSHA is extending the status quo. This final rule establishes no new burdens on the regulated community; rather, it further delays implementation of the crane operator certification requirements in the crane standard and further extends the employer duty in the crane standard to ensure the competency of crane operators, a duty that employers have been required to comply with since publication of the crane standard in 2010.

OSHA also concludes that delaying the effective date of this extension rulemaking beyond November 9, 2017, would be contrary to the public interest and would significantly disrupt the construction industry. If the extension does not go into effect on November 9, 2017, the crane operator certification requirements in the 2010 crane standard would go into effect and the employer duty in the crane standard to ensure crane operator competency would end. As the Agency notes below in Section II.A (Extension of operator certification deadline), there is evidence in the record that many crane operators in the construction industry do not have the certification required by the crane standard and would be out of compliance with the standard. This would not be offset through the employer duty to ensure crane operator competency because that duty would no longer exist. Therefore, OSHA concludes that it is in the public interest to avoid such disruption by having this extension go into effect by November 9, 2017. Finally, OSHA notes that by delaying the operator certification deadline, OSHA is temporarily relieving the regulated community of a compliance duty, which under 5 U.S.C. 553(d)(1) is a separate basis for allowing a rule to become effective in less than 30 days.

By delaying the deadline for employers to ensure that crane operators are certified until November 10, 2018, and by extending the employer duty to ensure that crane operators are competent until that same date, this rule will avoid disrupting the construction industry and allow OSHA time to complete a related crane standard rulemaking that will address these and other issues.

In this preamble, OSHA cites to documents in Docket No. OSHA-2007-0066, the docket for this rulemaking. To simplify these document cites, they start with “ID” followed by the last four digits of their full docket identification number. For example, if a document's full docket identification number is ID-OSHA-2007-0066-1234, the cite used in this preamble would be ID-1234. The docket is available at http://www.regulations.gov, the Federal eRulemaking Portal.

This final rule is not economically significant. OSHA is revising 29 CFR 1926.1427(k) (competency assessment and training) to delay the deadline for compliance with the operator-certification requirement in the crane standard for one year, and to extend the existing employer duty to ensure crane operator competency for the same period. OSHA's final economic analysis shows that delaying the date for operator certification and extending the employer's assessment of crane operator competency, rather than following the current crane standard, will result in a net cost savings for the affected industries. Delaying the compliance date for operator certification results in estimated cost savings that exceed the estimated new costs for employers to continue to assess crane operators to ensure their competent operation of the equipment in accordance with § 1926.1427(k). The detailed final economic analysis is in the “Agency Determinations” section of this preamble.

On August 9, 2010, OSHA published the final crane standard. OSHA developed the standard through a negotiated rulemaking process. The Agency established a Federal advisory committee, the Cranes and Derricks Negotiated Rulemaking Advisory Committee (C-DAC), to develop a draft proposed rule. C-DAC met in 2003 and 2004 and developed a draft proposed rule (which included the provisions concerning crane operator certification at issue in this rulemaking) that it provided to OSHA.

The Agency initiated a Small Business Advocacy Review Panel in 2006 and published the proposed rule for cranes in construction on October 9, 2008 (73 FR 59713). It closely followed C-DAC's draft proposal (73 FR 59718). OSHA received public comment on the proposal, and conducted a public hearing. Among many other provisions, OSHA's 2010 final rule incorporated, with minor changes, the four-option certification scheme that C-DAC had recommended and the Agency had proposed. Accordingly, in § 1926.1427, OSHA requires employers to ensure that their crane operators complete at least one of the following:

Option 1. Certification by an independent testing organization accredited by a nationally recognized accrediting organization;

Option 2. Qualification by an employer's independently audited program;

Option 3. Qualification by the U.S. military; or

Option 4. Compliance with qualifying State or local licensing requirements (mandatory when applicable).

The third-party certification option in § 1926.1427(b)—Option 1—is the only certification option that is “portable,” meaning any employer who employs an operator may rely on that operator's certification as evidence of compliance with the crane standard's operator certification requirement. This certification option also is the only one available to all employers; it is the option OSHA, and the parties that participated in the rulemaking, believed would be the one most widely used. In this regard, OSHA is not aware of an audited employer qualification program among construction industry employers (Option 2), and the crane standard limits the U.S. military crane operator certification programs (Option 3) to Federal employees of the Department of Defense or the armed services. While State and local governments certify some crane operators (Option 4), the vast majority of operators who become certified do so through Option 1—by third-party testing organizations accredited by a nationally recognized accrediting organization.

Under Option 1, an independent testing organization tests crane operators to determine if they warrant certification. Before a testing organization can issue operator certifications, § 1926.1427(b)(1) of the crane standard provides that a nationally recognized accrediting organization must accredit the testing organizations. To accredit a testing organization, the accrediting agency must determine that the testing organization meets industry-recognized criteria for written testing materials, practical examinations, test administration, grading, facilities and equipment, and personnel. The testing organization must administer written and practical tests that:

• Assess the operator's knowledge and skills regarding subjects specified in the crane standard;

• provide different levels of certification based on equipment capacity and type;

• have procedures to retest applicants who fail; and

• have testing procedures for recertification.

Section 1926.1427(b)(2) of the crane standard also specifies that, for the purposes of compliance with the crane standard, an operator is deemed qualified to operate a particular piece of equipment only if the operator is certified for that type and capacity of equipment or for higher-capacity equipment of that type. It further provides that, if no testing organization offers certification examinations for a particular equipment type and/or capacity, the operator is deemed qualified to operate that equipment if the operator is certified for the type/capacity of equipment that is most similar to that equipment, and for which a certification examination is available.

The crane standard published in 2010 replaced provisions in 29 CFR part 1926, subpart N—Cranes, Derricks, Hoists, Elevators, and Conveyors, of the construction safety standards. OSHA delayed the deadline for the operator certification requirement for four years, until November 10, 2014 (see § 1926.1427(k)(1)). During this four-year “phase-in” period, the crane standard imposed an employer duty to ensure that crane operators could safely operate equipment (see § 1926.1727(k), Phase-in). Thus, pursuant to § 1926.1427(k)(2)(i), OSHA required employers to “ensure that operators of equipment covered by this standard are competent to operate the equipment safely.” Under § 1926.1427(k)(2)(ii), employers must train and evaluate the operator when the operator “assigned to operate machinery does not have the required knowledge or ability to operate the equipment safely.”

After OSHA issued the crane standard, it continued to receive feedback from members of the regulated community and conducted stakeholder meetings on April 2 and 3, 2013, to give interested members of the public the opportunity to express their views. Participants included construction contractors, labor unions, crane manufacturers, crane rental companies, accredited testing organizations, one of the accrediting bodies, insurance companies, crane operator trainers, and military employers. Detailed notes of participants' comments are available at ID-0539. Various parties informed OSHA that, in their opinion, the operator certification option would not adequately ensure that crane operators could operate their equipment safely at a construction site. They said that a certified operator would need additional training, experience, and evaluation, beyond the training and evaluation required to obtain certification, to ensure that he or she could operate a crane safely.

OSHA also received information that two (of a total of four) accredited testing organizations have been issuing certifications only by “type” of crane, rather than offering different certifications by “type and capacity” of crane, as the crane standard requires. The two organizations later confirmed this (ID-0521, p. 109 and 246). As a result, those certifications do not meet the standard's requirements and operators who obtained certifications only from those organizations could not, under OSHA's crane standard, operate cranes on construction sites after November 10, 2014. Some stakeholders in the crane industry requested that OSHA remove the capacity requirement.

Most of the participants in the stakeholder meetings expressed the opinion that an operator's certification by an accredited testing organization did not mean that the operator was fully competent or experienced to operate a crane safely on a construction work site. The participants likened operator certification to a new driver's license, or a learner's permit, to drive a car. Most participants said that the operator's employer should retain the responsibility to ensure that the operator was qualified for the particular crane work assigned. Some participants wanted certification to be, or viewed to be, sufficient to operate a crane safely. Stakeholders noted that operator certification was beneficial in establishing a minimum threshold of operator knowledge and familiarity with cranes.

On February 10, 2014, OSHA published a proposal to delay the deadline for operator certification by three additional years to November 10, 2017, and to extend the existing employer duty to ensure crane operator competency for the same period (79 FR 7611). OSHA conducted a public hearing on May 19, 2014. Representatives of the construction industry reiterated that requiring the certification of all operators and supplanting the employer duty would not ensure the competency of crane operators to safely operate cranes to do construction work. A representative of one of the testing organizations that certifies by capacity (and who had previously opposed removing the capacity requirement) conceded that OSHA should undergo a rulemaking to consider removing capacity from certification requirements.

On September 26, 2014, OSHA published a final rule that delayed the operator certification deadline and extended the existing employer duty for three years to November 10, 2017, to provide time for OSHA to consider what regulatory approach it should take (79 FR 57785).

With the additional three-year extension in place, OSHA began work on a rulemaking to address the issues raised by stakeholders. On March 31 and April 1, 2015, the Agency consulted with the Advisory Committee on Construction Safety and Health (ACCSH) to solicit feedback from industry stakeholders on the draft regulatory text for a revised operator certification standard.1 Prior to the meeting, OSHA made available the draft regulatory text,2 an overview of the draft regulatory text,3 and a summary of the site visits with stakeholders.4 OSHA received many comments and suggestions for revising the regulatory text at the ACCSH meeting. Since that meeting, the Agency has worked to re-draft the regulatory text and preamble for the proposed rule. To ensure the Agency has enough time to propose and finalize the rulemaking, OSHA proposed this one-year extension of the certification requirement compliance date (82 FR 41184 (Aug. 30, 2017)). As with the previous extensions, OSHA also proposed an extension of the existing employer assessment duty for the same time period (Id.). OSHA requested public comment on these proposals.

Commenters in their written remarks on the proposal to delay the operator certification deadline and extend the existing employer duty to November 10, 2018 focused on three issues arising from the Agency's proposed changes: (1) Whether to delay the date for crane operators to be certified; (2) whether to extend the employer duty to ensure crane operators are competent and safe; and (3) the length of time of an extension. This section examines these issues—in the order above—by first summarizing the comments and then explaining the Agency's decisions and determinations based on the record as a whole.

The majority of commenters supported the Agency's proposed extension of the deadline for crane operators to be certified (ID-0545, 0561, 0563, 0566, 0572-575, 0578-582, 0584-585, 0588-597, 0599-614, 0617-618, 0621, 0624-627, 0632-640, 0642-643, 0645-647, 0651, 0653, 0656-660, 0662-664, 0666-667). Most agreed that an extension was necessary to give OSHA time to address the issues regarding crane operation raised after publication of the crane standard: Whether to remove capacity from the crane standard's certification requirements and the preservation of the employer's role in assessing operators for safe crane operation (ID-0561, 0563, 0578, 0597, 0604, 0618, 0632, 0636, 0640, 0646-647, 0650-651, 0656, 0658, 0667). The National Commission for the Certification of Crane Operators (NCCCO) supports this rule “only in response to OSHA's stated need to address these two issues.” (ID-0632). In support of the extension, The International Union of Operating Engineers (IUOE) stated that they along with “contractors, insurers, trade associations, and third-party certification bodies agree on the problems OSHA has identified . . . that OSHA's `deemed qualified' language eliminates the employer's duty . . .” and “that certification by `capacity' should be eliminated from the regulatory requirements.” (ID-0651). They conclude that “[t]here is widespread agreement in the industry regarding the necessity to postpone implementation of these two elements of the rule in order to correct them.” (Id.).

Some commenters asked OSHA to delay the compliance date of the certification requirements in order to alleviate confusion that exists in the industry regarding the crane operator certification requirements. (ID-0604, 0606, 0642, 0647, 0650-651). In support of the extension, the IUOE asked OSHA to “move quickly to eliminate the cloud of uncertainty that has hung over this key safety measure for over a decade.” (ID-0651). Edison Electrical Institute hopes that “OSHA works to clarify and formulate the necessary requirements for operator certification and qualification under the final rule” as “[t]here are still many questions that require answers on the certification process and granting this extension will enable OSHA to continue its work with impacted parties to ensure compliance is met and clarity is achieved.” (ID-0642). Imperial Crane Services, Inc., and the Chicago Crane Owners Association support the extension “so that crane operator's proficiency/qualification can be further clarified in the existing cranes and derrick standard.” (ID-0604).

Commenters were also very concerned that without an extension of the operator certification requirements and the employer's duty, there would be significant disruption to the construction industry. (ID-0561, 0580, 0605, 0611, 0618, 0626-627, 0636, 0640, 0643, 0646, 0650). In the 2014 extension, OSHA noted that the record indicated that roughly two-thirds of certified operators were certified by one of the organizations that does not offer certification by capacity. Thus, some of the commenters observed that with a majority of certified operators possessing a certification by crane type only, many employers of crane operators would be in violation of operating a crane under OSHA requirements and barred from operating a crane without the possibility of being cited by OSHA. The Texas Crane Owners Association asserts that without an extension, “the obligations under [the crane standard] will undoubtedly disrupt the construction industry by creating a large number of crane operators without compliant certification.” (ID-0646). The Associated General Contractors of America agrees that failure to delay the compliance date “could potentially result in significant disruptions in the construction industry with the number of crane operators in possession of certifications that would be deemed noncompliant if the November 10, 2017, effective date remains in place.” (ID-0640). Similarly, The Associated Builders and Contractors, Inc., (ABC) commented that “many in the construction industry believe that without an extension the industry will face a future crane operator shortage. For the industry to continue to perform work without disruption, it is important an extension is granted.” (ID-0650). “[W]ithout the proposed extension there will be a significant disruption to the industry come November 10, 2017,” commented North America's Building Trades Unions, continuing that “many operators will no longer be able to operate certain cranes because their current certifications are not by crane capacity as currently called for in the rule.” (ID-0618).

Commenters opposed to the extension of the certification deadline expressed concern that it would lead to unsafe worksites. (ID-0557, 0562/0665 (duplicate comments), 0571, 0577, 0620, 0629, 0644, 0649, 0652). Jack Pitt of Murray State University commented that if OSHA delayed the compliance date, “then safety would not be a priority,” continuing that it was his opinion that requiring certification immediately “would eliminate quite a number of fatalities and injuries. . . .” (ID-0665 and 0562). Chas Scott of Murray State University commented that “[t]he longer the rule is delayed, the more fatalities that are likely to occur.” (ID-0557).5

In making their arguments about the impact of the certification deadline extension on safety, several of these comments equated crane operator training and crane operator certification. (ID-0571, 0577, 0620, 0629, 0644, 0649, 0652). OSHA had previously addressed the same issue in its 2014 extension, pointing out that for the requirements for crane operator training at 29 CFR 1926.1427(f), like the other provisions from the crane standard except certification, are currently in effect and would not be impacted by any extension (see 79 FR 57788). Employers currently have, and will continue to have, a responsibility to ensure crane operators they employ are trained according to that standard.

Other comments in opposition of the extension stated that employers have had enough time to make sure that their operators are certified, meeting the certification requirements of the 2010 final rule. (ID-0542, 0551, 0556, 0558, 0568, 0583, 0587, 0615-616, 0622-623, 0630-631, 0652, 0661). An anonymous commenter stated that “[s]afety conscious construction employers know or should have known of this new operator certification requirement and have been given a substantial amount of time to comply,” (ID-0551). Another commenter noted that employers of crane operators “have had seven years to get the new certification.” (ID-0661).

Based on the record as a whole, OSHA finds the arguments in favor of delaying the operator certification deadline to be more persuasive. OSHA shares the commenters' concerns about a potential disruption to the industry that might occur if the majority of certified operators currently hold a form of certification that would not comply with OSHA's standard. The impact on the industry would be particularly unwarranted in light of OSHA's public disclosure to ACCSH during the committee's meeting on March 31 and April 1, 2015, that the Agency intends to propose removing the capacity component of certification, which is the sole reason that most of these operator certifications would not comply with OSHA's standard. OSHA also acknowledges the commenters' point that while there has been time for more operators to become certified, many employers may have delayed in requiring their employees to be certified while they waited for OSHA to clarify the criteria for the certification so that they could avoid spending funds on a certification that would not meet OSHA's standard. To the extent that the Agency's actions have contributed to this uncertainty, OSHA agrees that it would not be fair to penalize employers by enforcing the certification requirement before completing the separate rulemaking to change that criteria. The additional one-year extension will provide the Agency with the time it needs to address those concerns.

The commenters who specifically addressed the extension of the existing employer assessment duty were unanimous in supporting the extension to ensure that employers retained responsibility for ensuring that their operators are competent to operate cranes. All of the comments opposed to the one-year extension focused entirely on certification and did not mention the employer duty.

The North America's Building Trades Union commented that “without the proposed extension there would not be an employer duty to ensure operators can safely operate equipment, which not only puts the operator at risk of fatality or injury, but also puts all construction workers around the equipment at risk as well as the general public on certain construction projects.” (ID-0618). The IUOE argues that even if certification is required, “[c]ertification alone . . . is simply insufficient in the absence of subsequent employer qualification to ensure that a crane operator is qualified to safely operate the crane to which he or she is assigned.” (ID-0651).

While OSHA is not prepared to make a determination whether certification alone is insufficient as the IUOE claims, OSHA agrees that in order to ensure safe and competent crane operations during the one-year extension, the employer duty must also be extended. Without an extension of the employer duty, the standard would have no requirement to ensure that crane operators know how to operate the crane safely during the operator certification extension. Therefore it is important that the Agency extend the employer duty while it engages in subsequent rulemaking.

Having determined that it is appropriate to delay the certification deadline and extend the employer duty to ensure operator competence, the remaining issue is the length of the extension. In the NPRM, OSHA proposed delaying the operator certification deadline and extending the existing employer duty for one year, until November 10, 2018. OSHA requested comment on the duration of the extension.

The majority of comments support OSHA's proposed extension of the deadline for crane operator certification and the employer duty for one year. (ID-0545, 0561, 0563, 0566, 0572-575, 0578, 0580-582, 0585, 0588-600, 0602-605, 0607-614, 0617-618, 0621, 0624-627, 0632-640, 0642-643, 0645-647, 0651, 0653, 0656-660, 0662-6664, 0666-667). Some of these comments recommend that OSHA move as quickly as possible to address these rules. (ID-0605, 0618, 0632, 0651, 0656). NCCCO agrees with the Agency's proposed extension and “urges OSHA to act with all speed to ultimately issue its Final Rule well within the extension on this vitally important safety issue. . . .” (ID-0632). Jonathan Branton of Murray State University commented that “this issue does not need to be pushed back any further than one year” and it is “OSHA's responsibility to not allow this to be further extended.” (ID-0605). The IUOE asked the Agency to “[p]lease do everything in your power to ensure that OSHA completes the process by November 2018.” (ID-0651).

Additionally, OSHA received comments recommending an extension of three years and an indefinite extension until OSHA addresses the certification issues raised by stakeholders after publication of the 2010 final cranes and derricks standard.

The National Propane Gas Association (NPGA) recommended delaying the deadline for the certification requirement and extending the employer duty “at least three years”, arguing that “if three years was not an adequate amount of time” to address certification issues raised by stakeholders, “it is not reasonable to presume one year is sufficient.” (ID-0648). The NPGA continues that “[w]e are concerned that the short delay is indicative of the agency's intent to conduct an expedited process . . . . an accelerated rulemaking would be antithetical to the purpose and spirit of public engagement in the regulatory process.” (ID-0648). The National Association of Home Builders recommends that OSHA delay the deadline for the certification requirements and extend the employer duty another three years or indefinitely, arguing that “OSHA needs to ensure the certification procedures will actually improve safety” and not allowing enough time to address certification issues “only hurts the workers and the regulated community with continually changing deadlines and requirements.” (ID-0598). ABC also recommended that both the deadline for the certification requirement be delayed and the employer duty be extended indefinitely as recommended by ACCSH in 2014, arguing that a one year delay “will not provide a sufficient amount of time for OSHA to complete a further rulemaking. . . . Limiting the amount of time the agency has to complete the rulemaking could lead to rushed and unclear regulations.” (ID-0650).

While OSHA appreciates the concern of some stakeholders that a one-year extension is an insufficient amount of time to address the issues raised by the industry after publication of the crane standard, OSHA is not persuaded an extension longer than one year is necessary. OSHA had not even decided whether to pursue rulemaking when it finalized the three-year extension in 2014. The Agency needed time to determine what regulatory approach would be appropriate for addressing the concerns raised by stakeholders after publication of the crane standard. (79 FR 7613). OSHA took time to make site visits and spoke to over 40 industry representatives about crane operator certification and operator competency. Using this information, OSHA drafted regulatory text that it presented to a special meeting of ACCSH on March 31, and April 1, 2015, where several stakeholders had the opportunity to provide feedback to the Agency.6 OSHA has taken the information from that meeting and worked to develop a proposed rule addressing stakeholders' concerns. OSHA has nearly completed that proposed rule and intends to publish it for public comment shortly.

OSHA is in a different point of the process than it was three years ago and is confident that it will be able to complete the rulemaking within the year extension without curtailing the opportunity for stakeholders and the general public to participate fully in the rulemaking process.

The Agency rejects the calls for an indefinite extension for the same reasons that it rejected them in 2014. Failing to specify a compliance deadline for operator certification is likely to result in greater, not less, confusion. In addition, if OSHA does not designate a fixed period after which the certification requirements would automatically take effect, the Agency may face additional legal challenges to reinstating them. Moreover, OSHA has already dedicated a significant amount of time and resources to implementing the existing standard, including conducting an extensive negotiated rulemaking process before requiring that employers ensure their crane operators are certified. The Agency therefore finds it prudent and efficient to maintain the status quo for one more year while it considers additional rulemaking.

The Agency must balance the rationale for an additional extension against the concerns raised by the other commenters who point out that any unnecessary delay in the operator certification requirement could prevent the Agency from obtaining the full safety benefit of the cranes standard. For example, if OSHA delayed the operator certification requirement for another three years but completed its rulemaking within nine months, then delaying the certification deadline would be clearly excessive and needlessly delay safety benefits. OSHA believes that given the progress it has made developing a rule addressing stakeholders' concerns regarding operator certification, a one-year extension of both the deadline for the certification requirement and the employer duty is appropriate.

Therefore, OSHA has decided to delay the operator certification deadline for one year, until November 10, 2018, and to extend the employer duty to ensure that crane operators are competent to operate a crane safely for the same one-year period, as it proposed. The Agency received no comment on the text of its proposed revision to § 1926.1427(k), and the final rule adopts the provision as proposed.

OSHA received comments to this rulemaking that, in part or in whole, asked the agency to consider alternatives and revisions to the certification requirements from the 2010 final rule. (ID-0544, 0546, 0548, 0549, 0555, 0564, 0567, 0598, 0606, 0639, 0646, 0648, 0651, 0655, 0658, 0660, 0663, 0667). These comments, although related to operator certification and the employer duty, are outside the scope of this rulemaking and the narrowly tailored issue OSHA proposed: Whether the deadline for the operator certification requirements should be delayed and whether the employer duty to ensure safe and competent crane operation should be extended by one year.

When it issued the final cranes rule in 2010, OSHA prepared a final economic analysis (2010 FEA) as required by the Occupational Safety and Health Act of 1970 (OSH Act; 29 U.S.C. 651 et seq.) and Executive Orders 12866 (58 FR 51735) (Sept. 30, 1993) and 13563 (76 FR 3821 (Jan. 21, 2011)). OSHA also published a Final Regulatory Flexibility Analysis as required by the Regulatory Flexibility Act (5 U.S.C. 601-612). On September 26, 2014, the Agency included a separate FEA (2014 FEA) when it published a final rule delaying until November 10, 2017, the deadline for all crane operators to become certified, and extending the employer duty to ensure operator competency for the same period (79 FR 57785). The preliminary economic analysis for this crane rule extension (2017 PEA) was based on these documents along with further analysis and is the basis for this final economic analysis (FEA). There were no comments submitted to the record in response to the 2017 PEA that included data that could alter OSHA's analysis; therefore, this FEA is substantially the same as the 2017 PEA.

Because OSHA estimates this rule will have a cost savings for employers of $4.4 million using a discount rate of 3 percent for the one year of the extension, this final rule is not economically significant within the meaning of Executive Order 12866, or a major rule under the Unfunded Mandates Reform Act or Section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801 et seq.).

This FEA focuses solely on costs, and not on any changes in safety and benefits resulting from delaying the certification deadline and extending the employer duties under § 1926.1427(k)(2). As OSHA noted in its proposal, the Agency previously provided its assessment of the benefits of the cranes standard in the 2010 FEA. OSHA did not receive any comment on this approach or any request for additional analysis of benefits. As noted elsewhere in this preamble, the primary rationale for this final rule is to maintain the status quo—including preservation of the employer duty to ensure that crane operators are competent—while providing OSHA additional time to conduct rulemaking on the crane operator requirements in response to stakeholder concerns.

Extending the employer's requirement to ensure an operator's competency during this period means taking the same approach of the previous extension: Continuing measures in existence since OSHA published the crane standard in 2010. As OSHA stated in the preamble to the 2010 final rule, the interim measures in paragraph (k) “are not significantly different from requirements that were effective under subpart N of this part at former § 1926.550, § 1926.20(b)(4) (`the employer shall permit only those employees qualified by training or experience to operate equipment and machinery'), and § 1926.21(b)(2) (`the employer shall instruct each employee in the recognition and avoidance of unsafe conditions . . .')” (75 FR 48027).

Delaying the operator certification requirement defers a regulatory requirement and produces cost savings for employers. There will, however, be continuing employer costs for extending the requirement to assess operators under existing § 1926.1427(k)(2); if OSHA does not extend these requirements, they will expire in November 2017 and employers would not have these costs after 2017. With the extension, these continuing employer costs will be offset by a reduction in expenses that employers would otherwise have been required to incur to ensure that their operators are certified before the existing November 2017 deadline.

In the following analysis, OSHA examines costs and savings to determine the net economic effect of the rule. By comparing the additional assessment costs to the certification cost savings across two scenarios—scenario 1 in which there is no extension of the 2017 deadline, and scenario 2 in which there is an extension until 2018—OSHA estimates that the extension will produce a net savings for employers of $4.4 million per year using a discount rate of 3 percent ($5.2 million per year using an interest rate of 7 percent).7

This document and additional information concerning OFAC are available from OFAC's Web site (www.treasury.gov/ofac).

The Department of the Treasury issued the Cuban Assets Control Regulations, 31 CFR part 515 (the “Regulations”), on July 8, 1963, under the Trading With the Enemy Act (50 U.S.C. 4301-41). OFAC has amended the Regulations on numerous occasions. Today, OFAC, the Department of Commerce's Bureau of Industry and Security, and the Department of State are taking coordinated actions to implement the NSPM, “Strengthening the Policy of the United States Toward Cuba,” signed by the President on June 16, 2017.

OFAC is making amendments to the Regulations with respect to financial transactions, travel and related transactions, educational activities, support for the Cuban people, and certain other activities, as set forth below.

Restrictions on direct financial transactions with certain entities and subentities. In accordance with section 3(a)(i) of the NSPM, the State Department is publishing a list of entities and subentities that are under the control of, or act for or on behalf of, the Cuban military, intelligence, or security service or personnel, and with which direct financial transactions would disproportionately benefit the Cuban military, intelligence, or security services or personnel at the expense of the Cuban people or private enterprise in Cuba—the State Department's List of Restricted Entities and Subentities Associated with Cuba (“Cuba Restricted List”). In accordance with section 3(a)(ii) of the NSPM, OFAC is adding new § 515.209 to restrict direct financial transactions with entities and subentities listed on the Cuba Restricted List. OFAC is making conforming edits to § 515.421 to clarify that transactions ordinarily incident to licensed transactions do not include direct financial transactions with such entities and subentities if the terms of the applicable general or specific license expressly exclude such direct financial transactions.

In order to implement this prohibition, OFAC is adding corresponding language in the following general licenses: §§ 515.530, 515.534, 515.545, 515.560, 515.561, 515.564, 515.565, 515.566, 515.567, 515.572, 515.573, 515.574, 515.576, 515.577, 515.578, 515.581, 515.584, and 515.590. OFAC has not incorporated this prohibition into certain general licenses in accordance with the exceptions detailed in section 3(a)(iii) of the NSPM.

Educational travel. In accordance with section 3(b) of the NSPM, OFAC is revising the categories of educational travel currently set forth in § 515.565(a)(1)-(6) to authorize travel that was permitted by regulation in effect on January 27, 2011.

In addition, OFAC is adding the requirement set forth in the NSPM that certain categories of educational travel authorized by § 515.565(a), which were not permitted by regulation in effect on January 27, 2011, take place under the auspices of an organization that is a person subject to U.S. jurisdiction. This requirement is incorporated in § 515.565(a)(2). The same provision also now will require that all travelers must be accompanied by a person subject to U.S. jurisdiction who is an employee, paid consultant, agent, or other representative of the sponsoring organization, except in cases where the traveler is an employee, paid consultant, agent, or other representative traveling individually (not as part of a group), if the individual obtains a letter from the sponsoring organization. Such a letter must state that: (1) The individual is traveling to Cuba as an employee, paid consultant, agent, or other representative (including specifying the responsibilities of the individual that make him or her a representative) of the sponsoring organization; (2) the individual is acting for or on behalf of, or otherwise representing, the sponsoring organization; and (3) the individual's travel to Cuba is related to his or her role at the sponsoring organization.

In addition, OFAC is adding a “grandfathering” provision in § 515.565(d) to authorize certain travel that previously was authorized where the traveler has already completed at least one travel-related transaction (such as purchasing a flight or reserving accommodation) prior to November 9, 2017.

People-to-people educational travel. In accordance with section 3(b)(ii) of the NSPM, OFAC is amending § 515.565(b) to require that people-to-people educational travel be conducted under the auspices of an organization that is subject to U.S. jurisdiction and that sponsors such exchanges to promote people-to-people contact, and that such travelers be accompanied by a person subject to U.S. jurisdiction who is an employee, paid consultant, agent, or other representative of the sponsoring organization. Travel-related transactions authorized pursuant to this section must be for the purpose of engaging, while in Cuba, in a full-time schedule of activities that enhance contact with the Cuban people, support civil society in Cuba, or promote the Cuban people's independence from Cuban authorities; and result in meaningful interactions with individuals in Cuba. In addition, OFAC is adding a “grandfathering” provision in § 515.565(e) to authorize certain people-to-people travel that previously was authorized where the traveler has already completed at least one travel-related transaction (such as purchasing a flight or reserving accommodation) prior to June 16, 2017.

Support for the Cuban people. In accordance with section 3(b)(ii) of the NSPM, OFAC is amending § 515.574 to require that each traveler engage in a full-time schedule of activities that result in meaningful interaction with individuals in Cuba and that enhance contact with the Cuban people, support civil society in Cuba, or promote the Cuban people's independence from Cuban authorities.

Definition of prohibited officials of the Government of Cuba. In accordance with section 3(d) of the NSPM, OFAC is amending the definition of the term prohibited officials of the Government of Cuba in § 515.337 to include certain additional individuals. The revised definition corresponds to that which was in place prior to October 17, 2016.

Because the amendments of the Regulations involve a foreign affairs function, Executive Order 12866 and the provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, opportunity for public participation, and delay in effective date, as well as the provisions of Executive Order 13771, are inapplicable. Because no notice of proposed rulemaking is required for this rule, the Regulatory Flexibility Act (5 U.S.C. 601-612) does not apply.

The collections of information related to the Regulations are contained in 31 CFR part 501 (the “Reporting, Procedures and Penalties Regulations”) and § 515.572 of this part. Pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), those collections of information are covered by the Office of Management and Budget under control numbers 1505-0164, 1505-0167, and 1505-0168. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid control number.

For the reasons set forth in the preamble, the Department of the Treasury's Office of Foreign Assets Control amends 31 CFR part 515 as set forth below:

The owner of the bridge, the New Jersey Department of Transportation, requested a temporary deviation in order to complete rehabilitation of the adjacent Pulaski Skyway Bridge. The Route 1 & 9 Bridge across the Hackensack River, mile 1.8, at Jersey City, New Jersey is a vertical lift bridge with a vertical clearance of 35 feet at mean high water and 40 feet at mean low water in the closed position. The existing drawbridge operating regulations are listed at 33 CFR 117.5.

On September 9, 2016, the Coast Guard published a temporary final rule entitled, “Drawbridge Operation Regulation; Route 1 & 9 (Lincoln Highway) Bridge, Hackensack River, Jersey City, NJ,” under docket number USCG-2016-0173, in the Federal Register (81 FR 62366). Under the temporary final rule, from October 11, 2016 to September 30, 2017, the bridge was authorized not to open to vessel traffic between 6 a.m. and 10 a.m. and between 2 p.m. and 6 p.m., and tide dependent deep draft vessels could provide twelve hours advance notice for a bridge opening during rush hours.

Due to unanticipated project delays, the New Jersey Department of Transportation has requested to continue to restrict the bridge opening of the Route 1 & 9 Bridge allowing for completion of adjacent Pulaski Skyway bridge rehabilitation.

This temporary deviation will allow the Route 1 & 9 Bridge to open on signal from November 13, 2017 to April 1, 2017, except that the draw will not open to vessel traffic between 6 a.m. and 10 a.m. and between 2 p.m. and 6 p.m., Monday through Friday, except holidays. Tide dependent deep draft vessels may request bridge openings during the rush hour closure periods, provided that at least a twelve hour advance notice is given by calling the number posted at the bridge. The waterway is transited by recreational vessels and commercial vessels. Coordination with waterway users has indicated no objections to the proposed closure of the draw. Vessels able to pass through the bridge in the closed position may do so at anytime. The bridge will be able to open for emergencies. There is no alternate route for vessels to pass. The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so vessel operators may arrange their transits to minimize any impact caused by the temporary deviation.

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

The owner of the bridge, the Westchester County Department of Public Works and Transportation, requested a temporary deviation in order to facilitate bridge rehabilitation including placement of the concrete deck for the counterweight spans, installation of concrete on the movable spans, installation of sidewalk deck panels, control/mechanical equipment wiring and testing, and bridge testing.

The South Fulton Avenue Bridge across the Hutchinson River, mile 2.9, at Mount Vernon, New York is a bascule bridge with a vertical clearance of 6 feet at mean high water and 13 feet at mean low water in the closed position. The existing drawbridge operating regulations are listed at 33 CFR 117.793(c).

This temporary deviation will allow the South Fulton Avenue Bridge to remain in the closed position from 12:01 a.m. on November 13, 2017 to 11:59 p.m. on November 22, 2017. The waterway is transited by recreational vessels and commercial vessels. There is only one facility upstream of this bridge. Coordination with waterway user has indicated no objection to the proposed closure of the draw. Vessels that can pass under the bridge without an opening may do so at all times. The bridge will not be able to open for emergencies. There is no alternate route for vessels to pass.

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

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

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule due to the short time period between when Sector Delaware Bay received complete details of this project, October 30, 2017, and the date when these safety zones needed to go into effect. It is impracticable and contrary to the public interest to publish an NPRM to provide a notice and opportunity for comment period because the safety zones must be established by November 6, 2017, to ensure safety of life on navigable waters in the vicinity of dredging operations, pipe laying operations, diving operations as well as construction operations and to protect mariners from hazards associated with the same.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register. Delaying the effective date of this rule would be impracticable and contrary to the public interest because immediate action is needed to mitigate the hazards presented to safety of life on the Atlantic Ocean off the coast of Rehoboth Beach and in Breakwater Harbor by the presence of dredge, diving and construction equipment.

The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The Captain of the Port (COTP) Delaware Bay has determined that potential hazards associated with dredging, diving, pipe laying, and construction operations starting November 6, 2017 will be a safety concern for vessels attempting to transit the Atlantic Ocean offshore of Rehoboth Beach and Breakwater Harbor. This rule is needed to protect personnel, vessels, and the marine environment on the navigable waters within the safety zones while dredging, diving, pipe laying, and construction operations are being conducted.

This rule establishes two safety zones from November 6, 2017, through February 28, 2018, unless cancelled earlier by the COTP, to facilitate dredging, diving, pipe laying, and construction operations. Dredging operations will commence on November 6, 2017. The derrick barge HAAKON will begin dredging at approximate coordinates 38°43′43.79″ N., 75°3′32.60″ W. and move to the east. Simultaneously, at another location, pipeline fusing operations will begin and pipeline will be connected into two sections of approximately 1,900 feet in length each and one section approximately 1,800 feet in length. Pipeline fusing operations are expected to take approximately 25 days. At the completion of pipeline fusing operations, all the sections of pipeline will be pulled into Breakwater Harbor to approximately 38°47′53.00″ N., 75°6′13.85″ W. The two 1,900 foot sections of pipeline will be fused together and tested for continuity for at least 48 hours. When the pipeline proves to be continuous, it will be taken to the location of dredging operations where it will be inserted into a hole which has been horizontally drilled back to the Rehoboth Beach water treatment facility. The 1,800 foot section will then be laid in the trench and connected to the 3,800 foot section. A diffuser of approximately 127 feet will then be connected to the end of the pipe. Upon completion of connections and testing, a portion of the sediment removed during the dredging operations will be placed back over the pipeline and diffuser along with marine matting to ensure stability.

Safety zone one includes all navigable waters within 150 yards of the derrick barge HAAKON and associated dredging, diving, and construction equipment operating in the Atlantic Ocean offshore of Rehoboth Beach, DE, at approximate location 38°43′43.79″ N., 75°3′32.60″ W.

Safety zone two includes all navigable waters within 150 yards of the platform barge MANSON 76 and all associated equipment, to include pipeline, operating in Breakwater Harbor at approximate location 38°47′53.00″ N., 75°6′13.85″ W.

Vessels requesting to enter either safety zone must receive permission from the COTP on VHF-FM channel 16. Vessels may also contact the HAAKON or MANSON 76 in the event of an emergency on VHF-FM channel 68 or 13.

This rule was developed after considering numerous statutes and Executive orders related to rulemaking. Below is a summary of analyses based on a number of these statutes and Executive orders, and First Amendment rights of protestors.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.

This regulatory action determination is based on the size, location, and duration of the safety zones. Although this regulation will restrict access to regulated areas, the effect of this rule will not be significant because the locations allow for transit around the areas included in the safety zones as well as a reduction in vessel traffic in the areas due to seasonal variations in the quantity of vessel traffic in these locations.

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

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

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

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

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

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

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

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

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves safety zones that encompass all navigable waters within 150 yards of dredging, diving, construction operations and associated equipment. It is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES.

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

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

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because of a submerged vessel was located in Port of Ponce Turning Basin and immediate action is needed to respond to potential safety hazards associated with emergency salvage operations. It is impracticable to publish an NPRM because a safety zone must be established by November 5, 2017.

We are issuing this rule, and under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making it effective less than 30 days after publication in the Federal Register for the same reasons discussed above. Delaying the effective date of this rule would be impracticable because immediate action is needed to respond to potential safety hazards associated with salvage operations in Port of Ponce Turning Basin.

The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The Captain of the Port San Juan (COTP) has determined that potential hazards associated with emergency salvage operations starting on November 5, 2017 through November 12, 2017, will be a safety concern for anyone within a 100-yard radius of the salvage vessel and associated machinery with the operation. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone while the obstructions are removed.

This rule establishes a safety zone from 7 a.m. until 7 p.m. on November 5, 2017 through November 12, 2017. The safety zone will cover all navigable waters within 100 yards of vessels and associated machinery being used by personnel to clear the obstructions in Port of Ponce Turning Basin. The duration of the zone is intended to protect personnel, vessels, and the marine environment in these navigable waters while the operation is ongoing. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.

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

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.

This regulatory action determination is based on the size, location, and duration of the safety zone. The majority of vessel traffic will be able to safely transit around the safety zone, which will impact only a portion of the Turning Basin in Ponce, PR for a short period time. Under certain conditions, moreover, vessels may still transit through the safety zone when permitted by the COTP or a designated representative.

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

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

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

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

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

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

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

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

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone that will prohibit entry within 100 yards of vessels and associated machinery being used by personnel to remove an obstruction in the Port of Ponce. It is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES.

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

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

Background

The U.S. Fish and Wildlife Service published the Non-subsistence Take of Wildlife, and Public Participation and Closure Procedures, on National Wildlife Refuges in Alaska (non-subsistence take of wildlife rule) on August 5, 2016 (81 FR 52248). The rule became effective on September 6, 2016. On February 16, 2017, the United States House of Representatives passed a resolution of disapproval [H.J. Res. 69] of the non-subsistence take of wildlife rule under the Congressional Review Act (CRA), 5 U.S.C. 801 et seq. The Senate then passed a resolution of disapproval [S.J. Res. 18] on March 21, 2017 (Cong. Rec. p. S1884). President Trump then signed the resolution into law as Public Law 115-20 on April 3, 2017. Therefore, under the terms of the CRA, the U.S. Fish and Wildlife Service non-subsistence take of wildlife rule shall be “treated as though such rule had never taken effect.” 5 U.S.C. 801(f).

However, because the CRA does not include direction regarding the removal, by the Office of the Federal Register or otherwise, of the voided language from the Code of Federal Regulations (CFR), the U.S. Fish and Wildlife Service must publish this document to effect the removal of the voided text. This document will enable the Office of the Federal Register to effectuate congressional intent to remove the voided text of the non-subsistence take of wildlife rule as if it had never taken effect, and restore the previous language and prior state of the CFR.

This action is not an exercise of the Department's rulemaking authority under the Administrative Procedure Act, because the Department is not “formulating, amending, or repealing a rule” under 5 U.S.C. 551(5). Rather, the Department is effectuating changes to the CFR to reflect what congressional action has already accomplished—namely, the nullification of any changes purported to have been made to the CFR by the non-subsistence take of wildlife rule and the reversion to the regulatory text in effect immediately prior to September 6, 2016, the effective date of the non-subsistence take of wildlife rule. Accordingly, the Department is not soliciting comments on this action. Moreover, this action is not a final agency action subject to judicial review.

This final rule is considered an E.O. 13771 deregulatory action. We estimate the cost savings of this rule to be negligible. The average trip-related expenditures for big game hunting ($139 per day) yields approximately $5.9 million annually in big game hunting-related expenditures on national wildlife refuges (NWRs) in Alaska. Since only a small fraction of big game hunters would likely have chosen to not hunt on NWRs because of the original rule, the impact is minimal. The effect to the local communities is far less than $5.9 million annually because few hunters use the prohibited methods and those hunters that do would have likely chosen a substitute site.

For the reasons set forth in the preamble, and under the authority of the Congressional Review Act (5 U.S.C. 801 et seq.) and Public Law 115-20 (April 3, 2017), the Service amends title 50, chapter I, subchapter C, of the Code of Federal Regulations as follows:

This final rule implements Amendment 48 to the Crab FMP and regulatory amendments to the CR Program. NMFS published a notice of availability for Amendment 48 to the Crab FMP in the Federal Register on August 3, 2017 (82 FR 36111). Comment on Amendment 48 was invited through October 2, 2017. The Secretary of Commerce approved Amendment 48 on October 31, 2017, after accounting for information from the public, and determining that Amendment 48 is consistent with the Crab FMP, the Magnuson-Stevens Act, and other applicable law. NMFS published the proposed rule to implement Amendment 48 on August 22, 2017 (82 FR 39743). The comment period on the proposed rule ended on September 21, 2017. NMFS received 1 comment on the proposed rule. A summary of the comment and NMFS' responses is provided in the Comments and Responses section of this preamble.

This final rule modifies regulations at 50 CFR 679.2, 679.7, 680.2, and 680.42 that specify how NMFS determines holding and use of limited access privileges (LAPs) for the purposes of monitoring excessive share limits for CDQ groups under the AFA Program and the CR Program. The following section of the preamble provides a brief description of the AFA, CR, and CDQ Programs, and the elements of these programs that apply to Amendment 48 and this final rule. For a more detailed description, please see the preamble of the proposed rule (82 FR 39743; August 22, 2017) and Sections 2.6 through 2.8 of the RIR (see ADDRESSES).

Section 303A(c)(5)(D) of the Magnuson-Stevens Act requires NMFS to establish excessive share limits to prevent excessive consolidation of harvesting and processing LAPs in order to maintain an appropriate distribution of economic and social benefits for fishery participants and communities (16 U.S.C. 1853a(c)(5)(D)). Because determination of excessive shares must consider the specific circumstances of each fishery, the North Pacific Fishery Management Council (Council) and NMFS have implemented different excessive share limits in the LAP programs in Alaska's fisheries, including the AFA and CR Programs.

NMFS implemented use caps for the AFA Program in 2002 (67 FR 79692; December 30, 2002) and holding and use caps for the CR Program in 2005 (70 FR 10174; March 2, 2005). Regulations at 50 CFR 679.2, 679.7, 680.2, and 680.42 prohibit a person from using more than the harvesting and processing limits established in the AFA Program and from holding and using more than a specific portion of the LAPs allocated under the CR Program. Under 50 CFR 679.2, “person” includes individuals, corporations, partnerships, associations, and other non-individual entities. NMFS determines a person's holding and use of a LAP in the AFA Program and CR Program by summing (1) the amount directly held and used by that person, and (2) the amount held and used by that person indirectly through an ownership interest in or control of another entity that also holds and uses the LAPs. Ownership attribution refers to the method NMFS uses to assess the relationships between different entities that participate in LAP programs.

NMFS uses two ownership attribution methods to determine the holding and use of LAPs. These two methods for attributing holding and use of a LAP are commonly known as the “individual and collective rule” and the “10-percent rule.” Under the individual and collective rule, NMFS attributes holding and use of LAPs by one person proportionally to their ownership in or control of another entity that holds and uses LAPs. For example, if Company A has a 15 percent ownership of Company B that holds LAPs, Company A would be attributed 15 percent of Company B's holding and use of the LAPs. In contrast, under the 10-percent rule, a person is attributed 100 percent of an entity's LAPs if that person owns or otherwise controls 10 percent or more of that entity. Thus, if Company A owns or controls 10 percent or more of Company B, then 100 percent of Company B's holdings and use of LAPs are attributed to Company A. When a person owns or controls 10 percent or more of another entity, the individual and collective rule is less restrictive than the 10-percent rule because a person is only attributed holding and use of LAPs in proportion to how much that person owns or controls of other entities, rather than attributing 100 percent of the other entity's LAP holdings once the 10-percent ownership or control threshold is met. Under a holding and use cap, the individual and collective rule would allow a person to hold and use more LAPs than if the person was evaluated using the 10-percent rule.

Section 210(e)(1) of the AFA restricts an individual, corporation, or other entity to harvesting no more than 17.5 percent of the pollock available to be harvested in the directed pollock fishery. Section 210(e)(2) of the AFA directed the Council to recommend for Secretarial approval conservation and management measures to prevent any particular individual or entity from processing an excessive share of pollock available in the directed pollock fishery. The Council and NMFS set this limit at 30 percent of the sum of the directed fishing allowances for pollock (67 FR 79692, 79698; December 30, 2002). Every year, these limits are published in the annual harvest specifications (see 81 FR 14773; March 18, 2016 (final 2016-2017 harvest specifications); see also 81 FR 52367; August 8, 2016).

Section 210(e)(3) of the AFA also specified that any entity in which 10 percent or more of the interest is owned or controlled by another individual or entity shall be considered to be the same entity as the other individual or entity for purposes of monitoring the harvesting and processing use caps. This section of the AFA directed NMFS to use the 10-percent rule to determine the use of AFA Program harvesting and processing privileges.

The CR Program was implemented on April 1, 2005 (70 FR 10174; March 2, 2005). The CR Program established a LAP program for nine crab fisheries in the Bering Sea and Aleutian Islands (BSAI) and assigned quota share (QS) to persons based on their historic participation in one or more of those nine BSAI crab fisheries during a specific period. Each year, a person who holds QS may receive an exclusive harvest privilege called individual fishing quota (IFQ). NMFS also issued processor quota share (PQS) under the CR Program. Each year, PQS yields an exclusive privilege to process a portion of the IFQ in each of the nine BSAI crab fisheries, called individual processor quota (IPQ). The CR Program includes limits on the amount of QS and PQS that a person can hold and the amount of IFQ and IPQ that a person can use (see Section 2.7 of the RIR for more information).

For processing privileges, the CR Program limits a person to holding no more than 30 percent of the PQS initially issued in the fishery, and to using no more than the amount of IPQ resulting from 30 percent of the PQS initially issued in a given fishery, with a limited exemption for persons receiving more than 30 percent of the initially-issued PQS (50 CFR 680.42(b)). 50 CFR 680.42(b)(3) specifies that NMFS uses the 10-percent rule to monitor holding and use caps for PQS and IPQ for all CR Program participants as recommended by the Council and addressed in the preamble to the proposed rule for the CR Program (69 FR 63200, 63219, and 63226; October 29, 2004).

The CDQ Program was established by the Council and NMFS in 1992, and authorization for the Program was incorporated into the Magnuson-Stevens Act in 1996. The purpose of the CDQ Program is (1) to provide eligible western Alaska villages with the opportunity to participate and invest in fisheries in the BSAI, (2) to support economic development in western Alaska, (3) to alleviate poverty and provide economic and social benefits for residents of western Alaska, and (4) to achieve sustainable and diversified local economies in western Alaska (16 U.S.C. 1855(i)(1)(A)) (see Section 2.8 of the RIR).

CDQ groups participate in LAP programs, including the AFA and the CR Programs, by purchasing harvesting and processing privileges and through ownership of vessels and processors that participate in these fisheries. The Magnuson-Stevens Act was amended by the Coast Guard and Maritime Transportation Act of 2006 (Pub. L. 109-241; the Coast Guard Act) to specify the method that NMFS must use for monitoring excessive share limits as they apply to CDQ groups—the proportional or “individual and collective” rule.

NMFS implemented in practice the method specified in the 2006 amendment to the Magnuson-Stevens Act for CDQ groups to monitor excessive share limits in the AFA Program and the CR Program; however, the Crab FMP and the regulations for the AFA Program and the CR Program were not revised to be consistent with the 2006 amendment to the Magnuson-Stevens Act.

This section of the preamble provides a brief description of this final rule. For a more detailed description of the rationale for this final rule, see the preamble of the proposed rule (82 FR 39743; August 22, 2017). This final rule revises the AFA Program to specify that NMFS uses the individual and collective rule for CDQ groups to attribute harvesting and processing privileges of AFA pollock proportionally to the CDQ groups' ownership or control of vessels and processors active in those fisheries. For example, if a CDQ group owns 15 percent of an entity that uses AFA harvesting and processing privileges, the CDQ group will be attributed 15 percent of the harvesting or processing privileges of that company for purposes of monitoring excessive harvesting and processing use caps under the AFA.

This final rule also implements Amendment 48 to the Crab FMP and revises the CR Program to specify that NMFS uses the individual and collective rule for CDQ groups to attribute holding and use of PQS and IPQ based on the CDQ groups' proportional ownership or control of entities that hold and use PQS and IPQ. For example, if a CDQ group owns 15 percent of a company that holds or uses PQS or IPQ, the CDQ group will be attributed 15 percent of the holding or use of that PQS or IPQ.

NMFS has used the individual and collective rule for CDQ group ownership attribution for the AFA Program and the CR Program since enactment of the Coast Guard Act; however, the regulations and the Crab FMP for the PQS and IPQ holding and use caps have not been updated to reflect this change. This final rule updates the regulations, and Amendment 48 amends the Crab FMP, to be consistent with the Magnuson-Stevens Act and NMFS' current method of ownership attribution for CDQ groups. This final rule and Amendment 48 to the Crab FMP benefit CDQ groups and the public by clarifying the method NMFS uses to attribute holding and use of harvesting and processing privileges by CDQ groups for purposes of monitoring holding and use caps for the AFA and CR Programs.

This final rule does not alter the regulations for the QS and IFQ holding and use caps under the CR Program because current CR Program regulations specify that NMFS uses the individual and collective rule for all program participants, including CDQ groups, to attribute any participants' holding and use of QS and IFQ based on their proportional ownership or control of entities that hold and use QS and IFQ.

This final rule revises 50 CFR 679.2, 679.7(k)(6) and (7), 680.2, and 680.42(b) to specify that NMFS uses the individual and collective rule for CDQ groups for purposes of ownership attribution in the AFA Program and the CR Program. In this final rule, NMFS clarifies the amendatory text from the proposed rule to specify that only the introductory text to the definition of Affiliation for the purpose of defining AFA and the Rockfish Program is revised to specify that CDQ groups are not subject to the 10-percent rule for purposes of affiliation. This final rule does not modify the remainder of the definition that describes the specific components of the 10-percent rule for the AFA Program and the Rockfish Program. NMFS did not make any changes to the regulatory text from the proposed rule to the final rule.

Comment 1: The commenter states that NMFS should consider rolling over unused quota or total allowable catches (TACs) to the next year to provide additional flexibility for harvesters. The commenter suggests that NMFS should prevent too many fish from being harvested, especially small fish and breeding females.

Response: This comment addresses management issues that are beyond the scope of Amendment 48 and this regulatory action. This final rule does not change the process of allocating quota or establishing TACs under the AFA Program or the CR Program, nor will this final rule change specific management measures that govern the harvest of pollock and crab in the BSAI, such as fishing location, timing, effort, or authorized gear types. This final rule revises regulations describing the method NMFS uses to determine the amount of limited access privileges held and used by CDQ groups for the purposes of monitoring the excessive share limits under the AFA Program and the CR Program.

The Administrator, Alaska Region, NMFS, has determined that Amendment 48 to the Crab FMP and this final rule are necessary for the conservation and management of the AFA, CR, and CDQ Program fisheries and are consistent with the Magnuson-Stevens Act and other applicable laws.

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

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule and is not repeated here. No comments were received regarding this certification. As a result, a regulatory flexibility analysis was not required, and none was prepared, pursuant to 5 U.S.C. 605.

For the reasons set out in the preamble, NMFS amends 50 CFR part 679 and part 680 as follows: