Federal Register Vol. 82, No.248,

Federal Register Volume 82, Issue 248 (December 28, 2017)

Page Range61443-61671
FR Document

82_FR_248
Current View
Page and SubjectPDF
82 FR 61658 - Buy America Waiver NotificationPDF
82 FR 61540 - In the Matter of: Saeid Yahya Charkhian, Villa 5, Street 1, Arabian Ranches, Dubai, United Arab Emirates, and Caspian Industrial Machinery Supply LLC, No. 2509 Churchill Executive Tower, Business Bay, Dubai, United Arab Emirates, Attention: Saeid Yahya Charkhian; Respondents; Order Relating to Saeid Yahya Charkhian and Caspian Industrial Machinery Supply LLCPDF
82 FR 61542 - Availability of Final Evaluation Findings of State Coastal Programs and National Estuarine Research ReservesPDF
82 FR 61543 - Evaluation of National Estuarine Research ReservePDF
82 FR 61543 - Marine Protected Areas Federal Advisory Committee; Public MeetingPDF
82 FR 61591 - Notice of Lodging of Proposed Modification of Consent Decree Under the Clean Air ActPDF
82 FR 61592 - Notice of Lodging of Proposed Consent Decree Under the Clean Air ActPDF
82 FR 61650 - Presidential Declaration of a Major Disaster for Public Assistance Only for the State of New MexicoPDF
82 FR 61591 - Notice of Lodging of Proposed Consent Decree Under the Clean Air ActPDF
82 FR 61570 - Notice of Agreement FiledPDF
82 FR 61563 - Notice of Commission Staff AttendancePDF
82 FR 61559 - Douglas Leen; Notice of Intent To File License Application, Filing of Pre-Application Document, and Approving Use of the Traditional Licensing ProcessPDF
82 FR 61560 - Alpine Pacific Utilities Hydro, LLC; Notice of Application Accepted for Filing With the Commission, Soliciting Motions To Intervene and Protests, Ready for Environmental Analysis, Intent To Waive Scoping, Soliciting Comments, Terms and Conditions, Recommendations, and PrescriptionsPDF
82 FR 61557 - Notice of Application Accepted for Filing, Soliciting Comments, Protests and Motions To Intervene; Pacific Gas and Electric CompanyPDF
82 FR 61562 - Laurito, James P.; Notice of FilingPDF
82 FR 61565 - Southwest Power Pool, Inc.; Notice of Institution of Section 206 Proceeding and Refund Effective DatePDF
82 FR 61562 - Notice of Institution of Section 206 Proceeding and Refund Effective Date; PJM Interconnection, LLCPDF
82 FR 61558 - Notice of Institution of Section 206 Proceeding and Refund Effective Date; New York Independent System Operator, Inc.PDF
82 FR 61558 - Dominion Energy Questar Pipeline, LLC; Notice of Request Under Blanket AuthorizationPDF
82 FR 61560 - Notice of Request Under Blanket Authorization; Columbia Gas Transmission, LLCPDF
82 FR 61562 - Combined Notice of FilingsPDF
82 FR 61563 - Combined Notice of Filings #1PDF
82 FR 61499 - Cyber Security Incident Reporting Reliability StandardsPDF
82 FR 61637 - Self-Regulatory Organizations; Cboe Exchange, Inc.; Order Approving a Proposed Rule Change To Amend Rule 6.56 To Include Procedures for Multi-Leg PositionsPDF
82 FR 61599 - Self-Regulatory Organizations; Nasdaq ISE, LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend the Schedule of Fees To Clarify the Market Maker Plus ProgramPDF
82 FR 61638 - Self-Regulatory Organizations; Miami International Securities Exchange LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend MIAX Options Rule 612, Aggregate Risk Manager (ARM) and Rule 518, Complex OrdersPDF
82 FR 61622 - Self-Regulatory Organizations; MIAX PEARL, LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend MIAX PEARL Rule 510 To Extend the Penny Pilot ProgramPDF
82 FR 61625 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing of Amendment No. 1, and Order Granting Approval on an Accelerated Basis of a Proposed Rule Change, as Modified by Amendments No. 1 and No. 3, to List and Trade of Shares of the Breakwave Dry Bulk Shipping ETF Under NYSE Arca Rule 8.200-E, Commentary .02PDF
82 FR 61647 - Self-Regulatory Organizations; Cboe BZX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change to Rule 21.5, Minimum Increments, To Extend the Penny Pilot ProgramPDF
82 FR 61596 - Self-Regulatory Organizations; Bats BZX Exchange, Inc.; Order Instituting Proceedings To Determine Whether To Approve or Disapprove a Proposed Rule Change, as Modified by Amendment No. 2 Thereto, To List and Trade Shares of the iShares Inflation Hedged Corporate Bond ETF, a Series of the iShares U.S. ETF Trust, Under Rule 14.11(i), Managed Fund SharesPDF
82 FR 61651 - 60-Day Notice of Proposed Information Collection: Foreign Diplomatic Services Applications (FDSA)PDF
82 FR 61587 - Softwood Lumber Products From Canada; DeterminationsPDF
82 FR 61505 - Qualified Financial Contracts Recordkeeping Related to Orderly Liquidation AuthorityPDF
82 FR 61573 - Healthcare Infection Control Practices Advisory Committee (HICPAC)PDF
82 FR 61573 - Office for State, Tribal, Local and Territorial Support (OSTLTS), Tribal Advisory Committee (TAC) Meeting and 18th Biannual Tribal Consultation SessionPDF
82 FR 61572 - Board of Scientific Counselors, National Center for Injury Prevention and Control, (BSC, NCIPC)PDF
82 FR 61573 - Advisory Committee on Immunization Practices (ACIP); Notice of Charter AmendmentPDF
82 FR 61566 - Agency Information Collection Activities: Proposed Collection Renewals; Comment Request (3064-0022 & -0027)PDF
82 FR 61567 - Agency Information Collection Activities: Proposed Collection Renewal; Comment Request (OMB No. 3064-0084)PDF
82 FR 61570 - Notice to All Interested Parties of Intent To Terminate the Receivership of 10344, Citizens Bank of Effingham, Springfield, GeorgiaPDF
82 FR 61569 - Update to Notice of Financial Institutions for Which the Federal Deposit Insurance Corporation has Been Appointed Either Receiver, Liquidator, or ManagerPDF
82 FR 61570 - Agency Information Collection Activities; Submission for OMB Review; Comment RequestPDF
82 FR 61448 - Addition of the Wind River Indian Reservation to the List of Courts of Indian OffensesPDF
82 FR 61450 - Court of Indian Offenses Serving the Wind River Indian ReservationPDF
82 FR 61584 - Notice of Filing of Plats of Survey; ColoradoPDF
82 FR 61533 - Kootenai National Forest, Lincoln County, Montana Montanore ProjectPDF
82 FR 61584 - Draft Environmental Impact Statement/Environmental Impact Report for the Yolo Bypass Salmonid Habitat Restoration and Fish Passage Project, Yolo, Sutter, and Solano Counties, CaliforniaPDF
82 FR 61487 - Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Reef Fish Fishery of the Gulf of Mexico; Amendment 44PDF
82 FR 61581 - Request for Nominations of Members To Serve on the Bureau of Indian Education Advisory Board for Exceptional ChildrenPDF
82 FR 61581 - Advisory Board for Exceptional ChildrenPDF
82 FR 61577 - Hunting and Shooting Sports Conservation Council Establishment; Request for NominationsPDF
82 FR 61579 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Solicitation of Nominations for the Advisory Board for Exceptional ChildrenPDF
82 FR 61658 - Agency Information Collection Activities: Requests for Comments; Clearance of Renewed Approval of Information Collection: Certification: Air Carriers and Commercial OperatorsPDF
82 FR 61580 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Certificate of Degree of Indian or Alaska Native BloodPDF
82 FR 61582 - Notice Regarding Upper Klamath Basin Comprehensive AgreementPDF
82 FR 61657 - Agency Information Collection Activities: Requests for Comments; Clearance of Approval of New Information Collection: Generic Clearance for Customer InteractionsPDF
82 FR 61485 - Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Reef Fish Fishery of the Gulf of Mexico; Modifications to Greater Amberjack Allowable Harvest and Rebuilding PlanPDF
82 FR 61489 - Atlantic Highly Migratory Species; Individual Bluefin Quota Program; Accountability for Bluefin Tuna CatchPDF
82 FR 61578 - Notice of Public Meeting for the Advisory Committee on Water InformationPDF
82 FR 61575 - Fostering Medical Innovation: Case for Quality Voluntary Medical Device Manufacturing and Product Quality Pilot ProgramPDF
82 FR 61446 - Medical Devices; Obstetrical and Gynecological Devices; Classification of the Pressure Wedge for the Reduction of Cesarean DeliveryPDF
82 FR 61592 - Advisory Committee on Reactor Safeguards (ACRS) Meeting of the ACRS Subcommittee on NuScale; Notice of MeetingPDF
82 FR 61668 - Proposed Collection; Comment Request for Regulation ProjectPDF
82 FR 61660 - Petition for Waiver of CompliancePDF
82 FR 61595 - Product Change-Priority Mail and First-Class Package Service Negotiated Service AgreementPDF
82 FR 61594 - Product Change-Priority Mail and First-Class Package Service Negotiated Service AgreementPDF
82 FR 61659 - Agency Information Collection Activities: Request for Comments for a New Information CollectionPDF
82 FR 61533 - Designation for the Essex, Illinois; Savage, Minnesota; Alabama; and Washington AreasPDF
82 FR 61662 - Notice of OFAC Sanctions Actions; Sanctions Actions Pursuant to Executive Order 13581PDF
82 FR 61665 - Notice of OFAC Sanctions ActionsPDF
82 FR 61662 - Notice of OFAC Sanctions ActionsPDF
82 FR 61544 - Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to a Pile Driving Activities for Waterfront Repairs at the U.S. Coast Guard Station Monterey, Monterey, CaliforniaPDF
82 FR 61557 - Application to Export Electric Energy; Fisterra Generación, S. de R.L. de C.V.PDF
82 FR 61571 - Submission for OMB Review; Standard Form 28, Affidavit of Individual SuretyPDF
82 FR 61450 - Iraq Stabilization and Insurgency Sanctions RegulationsPDF
82 FR 61535 - Submission for OMB Review; Comment RequestPDF
82 FR 61652 - Notice of Determinations; Culturally Significant Objects Imported for Exhibition Determinations: “Rembrandt and the Inspiration of India” ExhibitionPDF
82 FR 61652 - Notice of Determinations: Culturally Significant Objects Imported for Exhibition Determinations: “Mirroring China's Past: Emperors, Scholars, and Their Bronzes” ExhibitionPDF
82 FR 61651 - Notice of Determinations; Culturally Significant Objects Imported for Exhibition Determinations: “Thomas Cole's Journey: Atlantic Crossings” ExhibitionPDF
82 FR 61650 - Notice of Determinations: Culturally Significant Objects Imported for Exhibition Determinations: “A Queen's Treasure at Versailles: Marie-Antoinette's Japanese Lacquer” ExhibitionPDF
82 FR 61652 - Notice of Determinations: Culturally Significant Objects Imported for Exhibition Determinations: “Towards Impressionism: Landscape Painting from Corot to Monet” ExhibitionPDF
82 FR 61577 - Council on Graduate Medical EducationPDF
82 FR 61593 - Submission for Review: CSRS/FERS Documentation in Support of Disability Retirement Application, Standard Form 3112PDF
82 FR 61534 - Submission for OMB Review; Comment RequestPDF
82 FR 61653 - Notice of Railroad-Shipper Transportation Advisory Council VacanciesPDF
82 FR 61589 - Commerce in Explosives; 2017 Annual List of Explosive MaterialsPDF
82 FR 61653 - Revisions to Arbitration ProceduresPDF
82 FR 61452 - Drawbridge Operation Regulation; Passaic River, Newark, NJPDF
82 FR 61661 - Notice and Request for CommentsPDF
82 FR 61536 - In the Matter of: Joseph Esequiel-Gonzalez, Inmate Number: 04655-479, FCI Bastrop Federal Correctional Institution, P.O. Box 1010, Bastrop, TX 78602; Order Denying Export PrivilegesPDF
82 FR 61537 - In the Matter of: Hunter Perry, 173 Red Hawk Drive, Vine Grove, KY 40175; Order Denying Export PrivilegesPDF
82 FR 61539 - In the Matter of: Papa Faal, 6308 Decatur Avenue North, Brooklyn Park, MN 55428; Order Denying Export PrivilegesPDF
82 FR 61538 - In the Matter of: Gerardo Trevino-Moncivais, Inmate Number: 13375-479, D. Ray James Correctional Institution, P.O. Box 2000, Folkston, GA 31537; Order Denying Export PrivilegesPDF
82 FR 61613 - Self-Regulatory Organizations; Cboe BZX Exchange, Inc.; Notice of Designation of a Longer Period for Commission Action on a Proposed Rule Change To List and Trade Shares of the Innovator S&P 500 15% Shield Strategy ETF Series, Innovator S&P 500 −5% to −35% Shield Strategy ETF Series, Innovator S&P 500 Enhance and 10% Shield Strategy ETF Series, and Innovator S&P 500 Ultra Strategy ETF Series Under Rule 14.11(i)PDF
82 FR 61624 - Self-Regulatory Organizations; Fixed Income Clearing Corporation; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Eliminate the Development Fees From the Mortgage-Backed Securities Division Clearing RulesPDF
82 FR 61641 - Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Rules Relating to Investment Company Units, Index-Linked Securities and Managed Trust SecuritiesPDF
82 FR 61611 - Self-Regulatory Organizations; Cboe EDGX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change to Rule 21.5, Minimum Increments, To Extend the Penny Pilot ProgramPDF
82 FR 61608 - Self-Regulatory Organizations; Cboe BZX Exchange, Inc.; Notice of Filing of a Proposed Rule Change To List and Trade Shares of the LHA Market State® Tactical U.S. Equity ETF, a Series of the ETF Series Solutions, Under Rule 14.11(i), Managed Fund SharesPDF
82 FR 61617 - Self-Regulatory Organizations; The Depository Trust Company; National Securities Clearing Corporation; Fixed Income Clearing Corporation; Notice of Filing of Amendment No. 4, Notice of Filing Amendment No. 5, Notice of Filing Amendment No. 6, and Order Granting Accelerated Approval of Proposed Rule Changes, as Modified by Amendment Nos. 1, 3 and 6, To Adopt the Clearing Agency Liquidity Risk Management FrameworkPDF
82 FR 61635 - Self-Regulatory Organizations; C2 Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change to Rule 6.4, Minimum Increments for Bids and Offers, To Extend the Penny Pilot ProgramPDF
82 FR 61615 - Self-Regulatory Organizations; Cboe Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change to Rule 6.42, Minimum Increments for Bids and Offers, To Extend the Penny Pilot ProgramPDF
82 FR 61614 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Withdrawal of a Proposed Rule Change, as Modified by Amendment No. 1, To Adopt NYSE Arca Rule 8.900-E To Permit Listing and Trading of Managed Portfolio Shares and To List and Trade Shares of the Royce Pennsylvania ETF, Royce Premier ETF, and Royce Total Return ETF Under Proposed NYSE Arca Rule 8.900-EPDF
82 FR 61601 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing of Proposed Rule Change To List and Trade Shares of the Perth Mint Physical Gold ETF Trust Under NYSE Arca Rule 8.201-EPDF
82 FR 61669 - Cost of Living Adjustments Effective December 1, 2017PDF
82 FR 61670 - Cost-of-Living Adjustments Effective December 1, 2017PDF
82 FR 61613 - Self-Regulatory Organizations; MIAX PEARL, LLC; Order Declaring Effective a Minor Rule Violation PlanPDF
82 FR 61649 - Self-Regulatory Organizations; Miami International Securities Exchange, LLC; Order Declaring Effective a Minor Rule Violation PlanPDF
82 FR 61595 - Product Change-Priority Mail Express and Priority Mail Negotiated Service AgreementPDF
82 FR 61596 - Product Change-First-Class Package Service Negotiated Service AgreementPDF
82 FR 61594 - Product Change-First-Class Package Service Negotiated Service AgreementPDF
82 FR 61596 - Product Change-Priority Mail Express, Priority Mail, & First-Class Package Service Negotiated Service AgreementPDF
82 FR 61595 - Product Change-Priority Mail Negotiated Service AgreementPDF
82 FR 61594 - Product Change-Priority Mail Negotiated Service AgreementPDF
82 FR 61479 - Elimination of Main Studio Rule; CorrectionPDF
82 FR 61565 - Information Collection Being Reviewed by the Federal Communications CommissionPDF
82 FR 61585 - Notice of Receipt of Complaint; Solicitation of Comments Relating to the Public InterestPDF
82 FR 61585 - Biodiesel From Argentina and Indonesia; DeterminationsPDF
82 FR 61485 - Drug and Alcohol Testing: Determination of Minimum Random Testing Rates for 2018PDF
82 FR 61654 - Determination of Trade Surplus in Certain Sugar and Syrup Goods and Sugar-Containing Products of Chile, Morocco, Costa Rica, the Dominican Republic, El Salvador, Guatemala, Honduras, Nicaragua, Peru, Colombia, and PanamaPDF
82 FR 61574 - Neurological Devices Panel of the Medical Devices Advisory Committee; Notice of MeetingPDF
82 FR 61443 - New Animal Drugs for Investigational Use; Disqualification of a Clinical InvestigatorPDF
82 FR 61593 - New Postal ProductsPDF
82 FR 61443 - Restrictions on Qualified Financial Contracts of Certain FDIC-Supervised Institutions; Revisions to the Definition of Qualifying Master Netting Agreement and Related DefinitionsPDF
82 FR 61555 - Sabine Pass Liquefaction, LLC; Application for Blanket Authorization To Export Liquefied Natural Gas to Non-Free Trade Agreement Countries on a Short-Term BasisPDF
82 FR 61452 - Drawbridge Operation Regulation; Canaveral Barge Canal, Canaveral, FLPDF
82 FR 61555 - Mid-Atlantic Fishery Management Council (MAFMC); Public MeetingPDF
82 FR 61657 - Notice of Availability of Categorical Exclusion and Record of Decision (CATEX/ROD) for LGA RNAV (GPS) Runway 13 ProcedurePDF
82 FR 61587 - Certain Arrowheads With Arcuate Blades and Components Thereof; Notice of Commission Decision Not To Review an Initial Determination Granting Complainant's Motion for Summary Determination of a Violation of Section 337; Request for SubmissionsPDF
82 FR 61590 - Notice of Lodging of Proposed Consent Decree Under the Clean Air ActPDF
82 FR 61519 - Medicare Program Contract Year 2019 Policy and Technical Changes to the Medicare Advantage, Medicare Cost Plan, Medicare Fee-For-Service, the Medicare Prescription Drug Benefit Programs, and the PACE Program; CorrectionPDF
82 FR 61577 - National Eye Institute; Notice of Closed MeetingPDF
82 FR 61531 - Hours of Service of Drivers: Application for Exemption; Agricultural Retailers AssociationPDF
82 FR 61507 - State Guidelines for Greenhouse Gas Emissions from Existing Electric Utility Generating UnitsPDF
82 FR 61479 - Defense Federal Acquisition Regulation Supplement: Technical AmendmentsPDF
82 FR 61481 - Defense Federal Acquisition Regulation Supplement: Trade Agreements Thresholds (DFARS Case 2018-D001)PDF
82 FR 61483 - Defense Federal Acquisition Regulation Supplement: New Qualifying Country-Latvia (DFARS Case 2017-D037)PDF
82 FR 61660 - Request for Comments on the Renewal of a Previously Approved Information Collection: Seamen's Claims, Administrative Action and LitigationPDF
82 FR 61520 - Accelerating Wireline Broadband Deployment by Removing Barriers to Infrastructure InvestmentPDF
82 FR 61453 - Accelerating Wireline Broadband Deployment by Removing Barriers to Infrastructure InvestmentPDF

Issue

82 248 Thursday, December 28, 2017 Contents Agricultural Marketing Agricultural Marketing Service NOTICES Designations: Essex, IL; Savage, MN; Alabama; and Washington Areas, 61533 2017-28033 Agriculture Agriculture Department See

Agricultural Marketing Service

See

Forest Service

Alcohol Tobacco Firearms Alcohol, Tobacco, Firearms, and Explosives Bureau NOTICES Commerce in Explosives: 2017 Annual List of Explosive Materials, 61589-61590 2017-28010 Census Bureau Census Bureau NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 61534-61535 2017-28012 Centers Disease Centers for Disease Control and Prevention NOTICES Charter Amendments: Advisory Committee on Immunization Practices, 61573 2017-28069 Meetings: Board of Scientific Counselors, National Center for Injury Prevention and Control, 61572 2017-28070 Healthcare Infection Control Practices Advisory Committee, 61573-61574 2017-28072 Office for State, Tribal, Local and Territorial Support, Tribal Advisory Committee, 61573 2017-28071 Centers Medicare Centers for Medicare & Medicaid Services PROPOSED RULES Medicare Program: Contract Year 2019 Policy and Technical Changes to the Medicare Advantage, Medicare Cost Plan, Medicare Fee-For-Service, the Medicare Prescription Drug Benefit Programs, and the PACE Program; Correction, 61519-61520 2017-27943 Coast Guard Coast Guard RULES Drawbridge Operations: Canaveral Barge Canal, Canaveral, FL, 61452 2017-27969 Passaic River, Newark, NJ, 61452-61453 2017-28008 Commerce Commerce Department See

Census Bureau

See

Industry and Security Bureau

See

National Oceanic and Atmospheric Administration

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 61535-61536 2017-28021
Defense Acquisition Defense Acquisition Regulations System RULES Defense Federal Acquisition Regulation Supplements: New Qualifying Country—Latvia, 61483-61485 2017-27780 Technical Amendments, 61479-61481 2017-27782 Trade Agreements Thresholds, 61481-61483 2017-27781 Defense Department Defense Department See

Defense Acquisition Regulations System

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Affidavit of Individual Surety, 61571-61572 2017-28025
Energy Department Energy Department See

Federal Energy Regulatory Commission

NOTICES Export Electric Energy; Applications: Fisterra Generacion, S. de R.L. de C.V., 61557 2017-28028 Export Liquefied Natural Gas; Applications: Sabine Pass Liquefaction, LLC, 61555-61556 2017-27970
Environmental Protection Environmental Protection Agency PROPOSED RULES State Guidelines for Greenhouse Gas Emissions from Existing Electric Utility Generating Units, 61507-61519 2017-27793 Federal Aviation Federal Aviation Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Certification: Air Carriers and Commercial Operators, 61658 2017-28052 Generic Clearance for Customer Interactions, 61657 2017-28049 Categorical Exclusions and Records of Decisions: LaGuardia Airport RNAV (GPS) Runway 13 Procedure, 61657-61658 2017-27965 Federal Communications Federal Communications Commission RULES Accelerating Wireline Broadband Deployment by Removing Barriers to Infrastructure Investment, 61453-61479 2017-27198 Elimination of Main Studio Rule, 61479 2017-27981 PROPOSED RULES Accelerating Wireline Broadband Deployment by Removing Barriers to Infrastructure Investment, 61520-61530 2017-27199 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 61565-61566 2017-27980 Federal Deposit Federal Deposit Insurance Corporation RULES Restrictions on Qualified Financial Contracts of Certain FDIC-Supervised Institutions: Revisions to the Definition of Qualifying Master Netting Agreement and Related Definitions, 61443 2017-27971 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 61566-61569 2017-28067 2017-28068 Terminations of Receivership: 10344, Citizens Bank of Effingham, Springfield, GA, 61570 2017-28066 Updated Listing of Financial Institutions in Liquidation, 61569-61570 2017-28065 Federal Energy Federal Energy Regulatory Commission PROPOSED RULES Cyber Security Incident Reporting Reliability Standards, 61499-61505 2017-28083 NOTICES Applications: Alpine Pacific Utilities Hydro, LLC, 61560-61562 2017-28093 Combined Filings, 61562-61565 2017-28084 2017-28085 Filings: James P. Laurito, 61562 2017-28091 Hydroelectric Applications: Pacific Gas and Electric Co., 61557-61558 2017-28092 Initial Market-Based Rate Filings Including Requests for Blanket Section 204 Authorizations: New York Independent System Operator, Inc., 61558 2017-28088 Institution of Section 206 Proceeding: PJM Interconnection, L.L.C., 61562 2017-28089 Southwest Power Pool, Inc., 61565 2017-28090 License Applications: Douglas Leen, 61559 2017-28094 Requests under Blanket Authorizations: Columbia Gas Transmission, LLC, 61560 2017-28086 Dominion Energy Questar Pipeline, LLC, 61558-61559 2017-28087 Staff Attendances, 61563 2017-28096 Federal Highway Federal Highway Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 61659-61660 2017-28034 Buy America Waivers, 61658-61659 2017-28150 Federal Maritime Federal Maritime Commission NOTICES Agreements Filed, 61570 2017-28097 Federal Motor Federal Motor Carrier Safety Administration PROPOSED RULES Hours of Service of Drivers; Exemption Applications: Agricultural Retailers Association, 61531-61532 2017-27884 Federal Railroad Federal Railroad Administration RULES Drug and Alcohol Testing: Determination of Minimum Random Testing Rates for 2018, 61485 2017-27976 NOTICES Petitions for Waivers of Compliance, 61660 2017-28039 Federal Trade Federal Trade Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 61570-61571 2017-28064 Fish Fish and Wildlife Service NOTICES Requests for Nominations: Hunting and Shooting Sports Conservation Council Establishment, 61577-61578 2017-28054 Food and Drug Food and Drug Administration RULES Medical Devices: Obstetrical and Gynecological Devices; Classification of the Pressure Wedge for the Reduction of Cesarean Delivery, 61446-61448 2017-28042 New Animal Drugs for Investigational Use; Disqualification of a Clinical Investigator, 61443-61446 2017-27973 NOTICES Fostering Medical Innovation: Case for Quality Voluntary Medical Device Manufacturing and Product Quality Pilot Program, 61575-61577 2017-28044 Meetings: Neurological Devices Panel of the Medical Devices Advisory Committee, 61574-61575 2017-27974 Foreign Assets Foreign Assets Control Office RULES Iraq Stabilization and Insurgency Sanctions Regulations, 61450-61451 2017-28023 NOTICES Blocking or Unblocking of Persons and Properties, 61662-61668 2017-28030 2017-28031 2017-28032 Forest Forest Service NOTICES Environmental Impact Statements; Availability, etc.: Montanore Project; Kootenai National Forest, Lincoln County, MT, 61533-61534 2017-28060 General Services General Services Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Affidavit of Individual Surety, 61571-61572 2017-28025 Geological Geological Survey NOTICES Meetings: Advisory Committee on Water Information, 61578-61579 2017-28045 Health and Human Health and Human Services Department See

Centers for Disease Control and Prevention

See

Centers for Medicare & Medicaid Services

See

Food and Drug Administration

See

Health Resources and Services Administration

See

National Institutes of Health

Health Resources Health Resources and Services Administration NOTICES Meetings: Council on Graduate Medical Education, 61577 2017-28015 Homeland Homeland Security Department See

Coast Guard

Indian Affairs Indian Affairs Bureau RULES Addition of the Wind River Indian Reservation to the List of Courts of Indian Offenses, 61448-61450 2017-28063 Court of Indian Offenses Serving the Wind River Indian Reservation, 61450 2017-28062 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Certificate of Degree of Indian or Alaska Native Blood, 61580 2017-28051 Solicitation of Nominations for the Advisory Board for Exceptional Children, 61579-61580 2017-28053 Meetings: Advisory Board for Exceptional Children, 61581-61582 2017-28055 Requests for Nominations: Bureau of Indian Education Advisory Board for Exceptional Children, 61581 2017-28057 Industry Industry and Security Bureau NOTICES Export Privileges; Denials: Gerardo Trevino-Moncivais, 61538-61539 2017-28003 Hunter Perry, 61537-61538 2017-28005 Joseph Esequiel-Gonzalez, 61536-61537 2017-28006 Papa Faal, 61539-61540 2017-28004 Orders: Saeid Yahya Charkhian and Caspian Industrial Machinery Supply, LLC, 61540-61542 2017-28112 Interior Interior Department See

Fish and Wildlife Service

See

Geological Survey

See

Indian Affairs Bureau

See

Land Management Bureau

See

Reclamation Bureau

NOTICES Upper Klamath Basin Comprehensive Agreement, 61582-61584 2017-28050
Internal Revenue Internal Revenue Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Regulation Project, 61668-61669 2017-28040 International Trade Com International Trade Commission NOTICES Complaints: Certain Solid State Storage Drives, Stacked Electronics Components, and Products Containing Same, 61585-61587 2017-27979 Investigations; Determinations, Modifications, and Rulings, etc.: Biodiesel from Argentina and Indonesia, 61585 2017-27978 Certain Arrowheads with Arcuate Blades and Components Thereof, 61587-61588 2017-27956 Softwood Lumber Products from Canada, 61587 2017-28074 Justice Department Justice Department See

Alcohol, Tobacco, Firearms, and Explosives Bureau

NOTICES Proposed Consent Decrees under the Clean Air Act, 61590-61592 2017-27944 2017-28098 2017-28101 2017-28102
Land Land Management Bureau NOTICES Plats of Survey: Colorado, 61584 2017-28061 Maritime Maritime Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 61660-61661 2017-27474 NASA National Aeronautics and Space Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Affidavit of Individual Surety, 61571-61572 2017-28025 National Highway National Highway Traffic Safety Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 61661-61662 2017-28007 National Institute National Institutes of Health NOTICES Meetings: National Eye Institute, 61577 2017-27936 National Oceanic National Oceanic and Atmospheric Administration RULES Atlantic Highly Migratory Species: Individual Bluefin Quota Program; Accountability for Bluefin Tuna Catch, 61489-61498 2017-28046 Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic: Reef Fish Fishery of the Gulf of Mexico; Amendment 44, 61487-61489 2017-28058 Reef Fish Fishery of the Gulf of Mexico; Modifications to Greater Amberjack Allowable Harvest and Rebuilding Plan, 61485-61487 2017-28047 NOTICES Final Evaluation Findings of State Coastal Programs and National Estuarine Research Reserves, 61542-61543 2017-28111 Meetings: Evaluation of National Estuarine Research Reserve, 61543-61544 2017-28110 Marine Protected Areas Federal Advisory Committee, 61543 2017-28108 Mid-Atlantic Fishery Management Council, 61555 2017-27968 Taking and Importing Marine Mammals: Pile Driving Activities for Waterfront Repairs at the U.S. Coast Guard Station Monterey, Monterey, CA, 61544-61554 2017-28029 Nuclear Regulatory Nuclear Regulatory Commission NOTICES Meetings: Advisory Committee on Reactor Safeguards Subcommittee on NuScale, 61592-61593 2017-28041 Personnel Personnel Management Office NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: CSRS/FERS Documentation in Support of Disability Retirement Application, 61593 2017-28013 Postal Regulatory Postal Regulatory Commission NOTICES New Postal Products, 61593-61594 2017-27972 Postal Service Postal Service NOTICES Product Changes: First-Class Package Service Negotiated Service Agreement, 61594, 61596 2017-27986 2017-27987 Priority Mail and First-Class Package Service Negotiated Service Agreement, 61594-61595 2017-28035 2017-28036 2017-28037 2017-28038 Priority Mail Express and Priority Mail Negotiated Service Agreement, 61595 2017-27988 Priority Mail Express, Priority Mail, and First-Class Package Service Negotiated Service Agreement, 61596 2017-27985 Priority Mail Negotiated Service Agreement, 61594-61596 2017-27982 2017-27983 2017-27984 Reclamation Reclamation Bureau NOTICES Environmental Impact Statements; Availability, etc.: Yolo Bypass Salmonid Habitat Restoration and Fish Passage Project, Yolo, Sutter, and Solano Counties, CA, 61584-61585 2017-28059 Securities Securities and Exchange Commission NOTICES Self-Regulatory Organizations; Proposed Rule Changes: Bats BZX Exchange, Inc., 61596-61598 2017-28076 C2 Exchange, Inc., 61635-61637 2017-27996 Cboe BZX Exchange, Inc., 61608-61611, 61613, 61647-61649 2017-27998 2017-28002 2017-28077 Cboe EDGX Exchange, Inc., 61611-61612 2017-27999 Cboe Exchange, Inc., 61615-61617, 61637-61638 2017-27995 2017-28082 Fixed Income Clearing Corporation, 61624-61625 2017-28001 Miami International Securities Exchange LLC, 61638-61641 2017-28080 Miami International Securities Exchange, LLC, 61649-61650 2017-27989 MIAX PEARL, LLC, 61613-61614, 61622-61624 2017-27990 2017-28079 Nasdaq ISE, LLC, 61599-61601 2017-28081 New York Stock Exchange LLC, 61641-61647 2017-28000 NYSE Arca, Inc., 61601-61608, 61614-61615, 61625-61635 2017-27993 2017-27994 2017-28078 The Depository Trust Company; National Securities Clearing Corporation; Fixed Income Clearing Corporation, 61617-61622 2017-27997 Small Business Small Business Administration NOTICES Disaster Declarations: New Mexico, 61650 2017-28099 State Department State Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Foreign Diplomatic Services Applications, 61651-61652 2017-28075 Culturally Significant Objects Imported for Exhibition: A Queen's Treasure at Versailles: Marie-Antoinette's Japanese Lacquer Exhibition, 61650 2017-28017 Mirroring China's Past: Emperors, Scholars, and Their Bronzes Exhibition, 61652 2017-28019 Rembrandt and the Inspiration of India Exhibition, 61652 2017-28020 Thomas Cole's Journey: Atlantic Crossings Exhibition, 61651 2017-28018 Towards Impressionism: Landscape Painting from Corot to Monet Exhibition, 61652 2017-28016 Surface Transportation Surface Transportation Board NOTICES Requests for Nominations: Railroad-Shipper Transportation Advisory Council, 61653-61654 2017-28011 Revisions to Arbitration Procedures, 61653 2017-28009 Trade Representative Trade Representative, Office of United States NOTICES Determination of Trade Surplus: Certain Sugar and Syrup Goods and Sugar-Containing Products of Chile, Morocco, Costa Rica, the Dominican Republic, El Salvador, Guatemala, Honduras, Nicaragua, Peru, Colombia, and Panama, 61654-61657 2017-27975 Transportation Department Transportation Department See

Federal Aviation Administration

See

Federal Highway Administration

See

Federal Motor Carrier Safety Administration

See

Federal Railroad Administration

See

Maritime Administration

See

National Highway Traffic Safety Administration

Treasury Treasury Department See

Foreign Assets Control Office

See

Internal Revenue Service

PROPOSED RULES Qualified Financial Contracts Recordkeeping Related to Orderly Liquidation Authority, 61505-61507 2017-28073
Veteran Affairs Veterans Affairs Department NOTICES Cost of Living Adjustments, 61669-61671 2017-27991 2017-27992 Reader Aids

Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.

To subscribe to the Federal Register Table of Contents electronic mailing list, go to https://public.govdelivery.com/accounts/USGPOOFR/subscriber/new, enter your e-mail address, then follow the instructions to join, leave, or manage your subscription.

82 248 Thursday, December 28, 2017 Rules and Regulations FEDERAL DEPOSIT INSURANCE CORPORATION 12 CFR Parts 324, 329, and 382 RIN 3064-AE46 Restrictions on Qualified Financial Contracts of Certain FDIC-Supervised Institutions; Revisions to the Definition of Qualifying Master Netting Agreement and Related Definitions AGENCY:

Federal Deposit Insurance Corporation (FDIC).

ACTION:

Final rule; technical correction; confirmation of effective date.

SUMMARY:

This document makes technical corrections to regulations that were published in the Federal Register on October 30, 2017. The FDIC added Part 382 to its regulations to improve the resolvability of systemically important U.S. banking organizations and systemically important foreign banking organizations and enhance the resilience and the safety and soundness of certain State savings associations and State-chartered banks and made certain conforming changes to Part 329. This document is being published to make technical corrections to certain rules under Parts 329 and 382 and make effective amendatory instruction 6 in the previously published regulation.

DATES:

Effective January 1, 2018. Amendatory instruction 6 in the final rule published October 30, 2017, at 82 FR 50228, is effective January 1, 2018.

FOR FURTHER INFORMATION CONTACT:

Ryan Billingsley, Acting Associate Director, Capital Markets Branch, Division of Risk Management and Supervision, [email protected]; Alexandra Steinberg Barrage, Senior Resolution Policy Specialist, Office of Complex Financial Institutions, [email protected]; David N. Wall, Assistant General Counsel, [email protected], Cristina Regojo, Counsel, [email protected], Phillip Sloan, Counsel, [email protected], Michael Phillips, Counsel, [email protected], Greg Feder, Counsel, [email protected], or Francis Kuo, Counsel, [email protected], Legal Division, Federal Deposit Insurance Corporation, 550 17th Street NW, Washington, DC 20429.

SUPPLEMENTARY INFORMATION:

We are making technical corrections to 12 CFR 329.3 and 382.2. We are also making effective amendatory instruction #6, published in the final rule on October 30, 2017, at 82 FR 50228.

List of Subjects 12 CFR Part 329

Administrative practice and procedure, Banks, banking, Federal Deposit Insurance Corporation, FDIC, Liquidity, Reporting and recordkeeping requirements.

12 CFR Part 382

Administrative practice and procedure, Banks, banking, Federal Deposit Insurance Corporation, FDIC, Qualified financial contracts, Reporting and recordkeeping requirements, State savings associations, State non-member banks.

For the reasons stated in the supplementary information, the Federal Deposit Insurance Corporation amends 12 CFR chapter III as follows:

PART 329—LIQUIDITY RISK MEASUREMENT STANDARDS 1. The authority citation for part 329 continues to read as follows: Authority:

12 U.S.C. 1815, 1816, 1818, 1819, 1828, 1831p-1, 5412.

§ 329.3 [Amended]
2. In § 329.3, amend paragraph (2)(i)(A) of the definition of “Qualifying master netting agreement” by adding “or” following the semi-colon. PART 382—RESTRICTIONS ON QUALIFIED FINANCIAL CONTRACTS 3. The authority citation for part 382 continues to read as follows: Authority:

12 U.S.C. 1816, 1818, 1819, 1820(g), 1828, 1828(m), 1831n, 1831o, 1831p-l, 1831(u), 1831w.

§ 382.1 [Amended]
4. As of January 1, 2018, make effective amendatory instruction #6 as published October 30, 2017, at 82 FR 50228.
§ 382.2 [Amended]
5. In § 382.2, amend paragraph (c)(1)(ii) by removing “January 19, 2019” and adding “January 1, 2019” in its place. Dated at Washington, DC, on December 21, 2017. Federal Deposit Insurance Corporation. Valerie J. Best, Assistant Executive Secretary.
[FR Doc. 2017-27971 Filed 12-27-17; 8:45 am] BILLING CODE 6714-01-P
DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Parts 16 and 511 [Docket No. FDA-2011-N-0079] RIN 0910-AH64 New Animal Drugs for Investigational Use; Disqualification of a Clinical Investigator AGENCY:

Food and Drug Administration, HHS.

ACTION:

Final rule.

SUMMARY:

The Food and Drug Administration (FDA, the Agency, or we) is issuing a final rule amending the regulations for new animal drugs for investigational use to expand the scope of clinical investigator disqualification to include ineligibility to conduct nonclinical laboratory studies. Under this final rule, when the Commissioner of Food and Drugs (the Commissioner) determines that an investigator is ineligible to receive a new animal drug for investigational use, the investigator also will be ineligible to conduct any nonclinical study intended to support an application for a research or marketing permit for a new animal drug. This final rule will help ensure adequate protection of animal research subjects and the quality and integrity of data submitted to FDA.

DATES:

This rule is effective January 29, 2018.

ADDRESSES:

For access to the docket to read background documents or comments received, go to https://www.regulations.gov and insert the docket number found in brackets in the heading of this final rule into the “Search” box and follow the prompts, and/or go to the Dockets Management Staff, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

FOR FURTHER INFORMATION CONTACT:

Vernon Toelle, Center for Veterinary Medicine (HFV-230), Food and Drug Administration, 7519 Standish Pl., Rockville, MD 20855, 240-402-5637, [email protected]

SUPPLEMENTARY INFORMATION:

Table of Contents I. Executive Summary A. Purpose of the Final Rule B. Summary of the Major Provisions of the Final Rule C. Legal Authority D. Costs and Benefits II. Background A. Need for the Regulation B. Summary of Comments to the Proposed Rule III. Legal Authority IV. Comments on the Proposed Rule and FDA Response V. Effective Date VI. Economic Analysis of Impacts VII. Analysis of Environmental Impact VIII. Paperwork Reduction Act of 1995 IX. Federalism I. Executive Summary A. Purpose of the Final Rule

The regulations in § 511.1(c) (21 CFR 511.1(c)) provide that a disqualified clinical investigator is ineligible to conduct any clinical investigation that supports an application for a research or marketing permit for products regulated by FDA. However, the animal drug regulations permit the same clinical investigator to conduct both nonclinical laboratory studies as well as clinical investigations. We have proposed changes to these regulations (81 FR 57812, August 24, 2016) that would prevent disqualified clinical investigators from conducting nonclinical laboratory studies intended to support an application for a research or marketing permit for a new animal drug, thus enhancing protection of animal research subjects and ensuring the quality and integrity of data submitted to FDA in support of a new animal drug approval.

B. Summary of the Major Provisions of the Final Rule

This final rule expands the clinical investigator disqualification regulations in § 511.1(c) to include the ineligibility of a disqualified investigator to conduct any nonclinical laboratory study intended to support an application for a research or marketing permit for a new animal drug. We received one comment, and it supported the proposed amendment.

C. Legal Authority

FDA is issuing these regulations based on its authority under the new animal drug provisions in section 512 of the Federal Food, Drug, and Cosmetic Act (FD&C Act) (21 U.S.C. 360b) and under section 701(a) of the FD&C Act (21 U.S.C. 371(a)), which gives the Agency general rulemaking authority to issue regulations for the efficient enforcement of the FD&C Act.

D. Costs and Benefits

FDA believes this final rule is not a significant regulatory action as defined by Executive Order 12866 and certifies that it will not have a significant economic impact on a substantial number of small entities. FDA and applicants will not incur additional costs by expanding the scope in part 511 for disqualification of a clinical investigator. The benefit of preventing a disqualified clinical investigator from performing both nonclinical laboratory studies as well as clinical investigations will be enhanced protection of animal research subjects and data integrity submitted to FDA in support of a new animal drug approval.

II. Background

FDA may consider disqualification of a clinical investigator when FDA has information that an investigator has repeatedly or deliberately failed to comply with applicable requirements for the conduct of clinical investigations, or has repeatedly or deliberately submitted to FDA or to the sponsor false information in any required report. Disqualification of an investigator is initiated by the appropriate FDA center depending upon the particular type of test article (e.g., new animal drug for investigational use) under study by the investigator in the clinical investigation. For example, the Center for Veterinary Medicine (CVM or the Center) may pursue disqualification of a clinical investigator who conducted a new animal drug clinical investigation and allegedly submitted to FDA or the sponsor false information in a required report.

The regulations provide the investigator who is subject to disqualification an opportunity to be heard and explain the matter complained of, i.e., explain the alleged violations. If the explanation offered is not accepted by the Center, the investigator will be given an opportunity for an informal regulatory hearing under part 16 (21 CFR part 16). After evaluating all available information, including any explanation presented by the investigator, the Commissioner issues a Commissioner's decision regarding the eligibility of the investigator to receive a particular type of test article (e.g., a new animal drug for investigational use). When disqualified by a Commissioner's decision, the investigator is no longer eligible to receive the particular type of test article under study when the violations occurred (e.g., new animal drugs). Also, an investigator disqualified by a Commissioner's decision is ineligible to conduct any clinical investigation that supports an application for a research or marketing permit for products regulated by FDA.

Because CVM regulates drugs for animal use, the study subjects are animals in both clinical investigations and nonclinical laboratory studies intended to support the approval of a new animal drug. Nonclinical laboratory studies such as those for target animal safety and human food safety may be essential in determining whether to approve an application for a research or marketing permit for a new animal drug. For animal drug products regulated by CVM, the same investigator may conduct both clinical investigations and nonclinical laboratory studies. For example, CVM's two most recent clinical investigator disqualification matters involved investigators who were also study directors on nonclinical laboratory studies submitted to CVM in support of applications for a new animal drug. In addition, CVM is aware of multiple persons who conduct both clinical investigations and nonclinical laboratory studies intended to support an application for a research or marketing permit for a new animal drug. Therefore, CVM proposed (81 FR 57812) that it have authority to disqualify an investigator from conducting nonclinical laboratory studies intended to support an application for a research or marketing permit for a new animal drug when that same investigator is disqualified from conducting clinical investigations.

A. Need for the Regulation

Expanding the regulations to include that a disqualified investigator is ineligible to conduct any nonclinical laboratory study intended to support an application for a research or marketing permit for a new animal drug helps to ensure adequate protection of animal research subjects and data integrity. This action also leads to improved public confidence in the nonclinical and clinical data supporting FDA decisions for new animal drug approvals.

B. Summary of Comments to the Proposed Rule

We received one comment to the proposed rule. The comment supports the proposal. Therefore, we are finalizing the proposal without revision.

III. Legal Authority

We are issuing this final rule under section 512(j) of the FD&C Act, which authorizes FDA to issue regulations for exempting from the operation of section 512 of the FD&C Act new animal drugs intended solely for investigational use by experts qualified by scientific training and experience to investigate the safety and effectiveness of animal drugs, and section 701(a) of the FD&C Act, which authorizes FDA to issue regulations for the efficient enforcement of the FD&C Act. An investigator who repeatedly or deliberately submits to FDA or the sponsor false information in a required report would not be considered a qualified expert with the experience required to conduct nonclinical laboratory studies intended to support an application for a research or marketing permit for a new animal drug. FDA therefore concludes that legal authority to promulgate this rule exists under sections 512(j) and 701(a) of the FD&C Act, as essential to protection of the public health and safety and to enforcement of the Agency's responsibilities under sections 201, 501, 502, 503, 512, and 701 of the FD&C Act (21 U.S.C. 321, 351, 352, 353, 360b, and 371).

IV. Comments on the Proposed Rule and FDA Response

We received no adverse or substantive comment and are finalizing without change.

V. Effective Date

This rule is effective January 29, 2018.

VI. Economic Analysis of Impacts

We have examined the impacts of the final rule under Executive Order 12866, Executive Order 13563, Executive Order 13771, the Regulatory Flexibility Act (5 U.S.C. 601-612), and the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). Executive Orders 12866 and 13563 direct us to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). Executive Order 13771 requires that the costs associated with significant new regulations “shall, to the extent permitted by law, be offset by the elimination of existing costs associated with at least two prior regulations.” This final rule is not a significant regulatory action as defined by Executive Order 12866.

The Regulatory Flexibility Act requires us to analyze regulatory options that would minimize any significant impact of a rule on small entities. Because this rule does not impose new requirements on any entity and therefore has no associated compliance costs, we certify that the final rule will not have a significant economic impact on a substantial number of small entities.

The Unfunded Mandates Reform Act of 1995 (section 202(a)) requires us to prepare a written statement, which includes an assessment of anticipated costs and benefits, before issuing “any rule that includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any one year.” The current threshold after adjustment for inflation is $148 million, using the most current (2016) Implicit Price Deflator for the Gross Domestic Product. This final rule will not result in an expenditure in any year that meets or exceeds this amount.

This rule expands the scope in part 511 of disqualification of a clinical investigator to include ineligibility to conduct nonclinical laboratory studies intended to support an application for a research or marketing permit for a new animal drug. A final rule published on April 30, 2012 (77 FR 25353), prevents a disqualified investigator from conducting any clinical investigation, and therefore applies explicitly to clinical investigations. However, that rule was silent on nonclinical laboratory studies. Thus, before this final rule, a disqualified investigator could conduct a nonclinical laboratory study intended to support an application for a research or marketing permit for a new animal drug. Because the reason for disqualification in part 511 is typically the repeated or deliberate submission of false information to us or to sponsors in a required report, preventing a disqualified clinical investigator from performing both nonclinical laboratory studies and clinical investigations is essential to adequate protection of animal research subjects and data integrity.

We will not incur additional costs by expanding the scope in part 511 for disqualification of a clinical investigator because we already post the names of any disqualified investigator on FDA's internet site at https://www.accessdata.fda.gov/scripts/SDA/sdNavigation.cfm?sd=clinicalinvestigatorsdisqualificationproceedings&previewMode=true&displayAll=true. Similarly, industry will not incur additional costs because the rule does not require applicants to perform additional tasks. For instance, upon disqualification, we post the respective investigator's name on FDA's internet site, which helps mitigate the employment of a disqualified investigator for clinical investigations or nonclinical laboratory studies intended to support an application for a research or marketing permit for a new animal drug. The benefit of preventing a disqualified clinical investigator from performing both nonclinical laboratory studies and clinical investigations will be enhanced protection of animal research subjects and data integrity.

VII. Analysis of Environmental Impact

We have determined under 21 CFR 25.30(h) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

VIII. Paperwork Reduction Act of 1995

This final rule contains no collection of information. Therefore, clearance by the Office of Management and Budget under the Paperwork Reduction Act of 1995 is not required.

IX. Federalism

We have analyzed this final rule in accordance with the principles set forth in Executive Order 13132. FDA has determined that the rule does not contain policies that have substantial direct effects 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. Accordingly, we conclude that the rule does not contain policies that have federalism implications as defined in the Executive order and, consequently, a federalism summary impact statement is not required.

List of Subjects 21 CFR Part 16

Administrative practice and procedure.

21 CFR Part 511

Animal drugs, Medical research, Reporting and recordkeeping requirements.

Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR parts 16 and 511 are amended as follows:

PART 16—REGULATORY HEARING BEFORE THE FOOD AND DRUG ADMINISTRATION 1. The authority citation for part 16 continues to read as follows: Authority:

15 U.S.C. 1451-1461; 21 U.S.C. 141-149, 321-394, 467f, 679, 821, 1034; 28 U.S.C. 2112; 42 U.S.C. 201-262, 263b, 364.

2. In § 16.1, in paragraph (b)(2), revise the numerically sequenced entry for § 511.1(c)(1) to read as follows:
§ 16.1 Scope.

(b) * * *

(2) * * *

(c)(1), relating to whether an investigator is eligible to receive test articles under part 511 of this chapter and eligible to conduct any clinical investigation that supports an application for a research or marketing permit for products regulated by FDA including drugs, biologics, devices, new animal drugs, foods, including dietary supplements, that bear a nutrient content claim or a health claim, infant formulas, food and color additives, and tobacco products; and any nonclinical laboratory study intended to support an application for a research or marketing permit for a new animal drug.

PART 511—NEW ANIMAL DRUGS FOR INVESTIGATIONAL USE 3. The authority citation for part 511 continues to read as follows: Authority:

21 U.S.C. 321, 351, 352, 353, 360b, 371.

4. In § 511.1: a. Revise the section heading; b. Revise the last sentence in paragraph (c)(1); c. Add paragraphs (c)(1)(i) and (ii); d. Revise the last sentence in paragraph (c)(2); e. Add paragraphs (c)(2)(i) and (ii); and f. Revise paragraph (c)(6).

The revisions and additions read as follows:

§ 511.1 New animal drugs for investigational use exempt from section 512(a) of the Federal Food, Drug, and Cosmetic Act.

(c) * * *

(1) * * * If an explanation is offered but not accepted by the Center for Veterinary Medicine, the investigator will be given an opportunity for a regulatory hearing under part 16 of this chapter on the question of whether the investigator is eligible to receive test articles under this part and eligible to conduct:

(i) Any clinical investigation that supports an application for a research or marketing permit for products regulated by FDA; and

(ii) Any nonclinical laboratory study intended to support an application for a research or marketing permit for a new animal drug.

(2) * * * The notification also will explain that an investigator determined to be ineligible to receive test articles under this part will be ineligible to conduct:

(i) Any clinical investigation that supports an application for a research or marketing permit for products regulated by FDA, including drugs, biologics, devices, new animal drugs, foods, including dietary supplements, that bear a nutrient content claim or a health claim, infant formulas, food and color additives, and tobacco products; and

(ii) Any nonclinical laboratory study intended to support an application for a research or marketing permit for a new animal drug.

(6) An investigator who has been determined to be ineligible under paragraph (c)(2) of this section may be reinstated as eligible when the Commissioner determines that the investigator has presented adequate assurances that the investigator will employ all test articles, and will conduct any clinical investigation that supports an application for a research or marketing permit for products regulated by FDA and any nonclinical laboratory study intended to support an application for a research or marketing permit for a new animal drug, solely in compliance with the applicable provisions of this chapter.

Dated: December 21, 2017. Leslie Kux, Associate Commissioner for Policy.
[FR Doc. 2017-27973 Filed 12-27-17; 8:45 am] BILLING CODE 4164-01-P
DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 884 [Docket No. FDA-2017-N-6842] Medical Devices; Obstetrical and Gynecological Devices; Classification of the Pressure Wedge for the Reduction of Cesarean Delivery AGENCY:

Food and Drug Administration, HHS.

ACTION:

Final order.

SUMMARY:

The Food and Drug Administration (FDA or we) is classifying the pressure wedge for the reduction of cesarean delivery into class II (special controls). The special controls that apply to the device type are identified in this order and will be part of the codified language for the pressure wedge for the reduction of cesarean delivery's classification. We are taking this action because we have determined that classifying the device into class II (special controls) will provide a reasonable assurance of safety and effectiveness of the device. We believe this action will also enhance patients' access to beneficial innovative devices, in part by reducing regulatory burdens.

DATES:

This order is effective December 28, 2017. The classification was applicable on December 19, 2016.

FOR FURTHER INFORMATION CONTACT:

Mack Hall III, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 3572, Silver Spring, MD 20993-0002, 301-796-5621, [email protected]

SUPPLEMENTARY INFORMATION: I. Background

Upon request, FDA has classified the pressure wedge for the reduction of cesarean delivery as class II (special controls), which we have determined will provide a reasonable assurance of safety and effectiveness. In addition, we believe this action will enhance patients' access to beneficial innovation, in part by reducing regulatory burdens by placing the device into a lower device class than the automatic class III assignment.

The automatic assignment of class III occurs by operation of law and without any action by FDA, regardless of the level of risk posed by the new device. Any device that was not in commercial distribution before May 28, 1976, is automatically classified as, and remains within, class III and requires premarket approval unless and until FDA takes an action to classify or reclassify the device (see 21 U.S.C. 360c(f)(1)). We refer to these devices as “postamendments devices” because they were not in commercial distribution prior to the date of enactment of the Medical Device Amendments of 1976, which amended the Federal Food, Drug, and Cosmetic Act (FD&C Act).

FDA may take a variety of actions in appropriate circumstances to classify or reclassify a device into class I or II. We may issue an order finding a new device to be substantially equivalent under section 513(i) of the FD&C Act to a predicate device that does not require premarket approval (see 21 U.S.C. 360c(i)). We determine whether a new device is substantially equivalent to a predicate by means of the procedures for premarket notification under section 510(k) of the FD&C Act and part 807 (21 U.S.C. 360(k) and 21 CFR part 807, respectively).

FDA may also classify a device through “De Novo” classification, a common name for the process authorized under section 513(f)(2) of the FD&C Act (21 U.S.C. 360c(f)(2)). Section 207 of the Food and Drug Administration Modernization Act of 1997 established the first procedure for De Novo classification (Pub. L. 105-115). Section 607 of the Food and Drug Administration Safety and Innovation Act modified the De Novo application process by adding a second procedure (Pub. L. 112-144). A device sponsor may utilize either procedure for De Novo classification.

Under the first procedure, the person submits a 510(k) for a device that has not previously been classified. After receiving an order from FDA classifying the device into class III under section 513(f)(1) of the FD&C Act, the person then requests a classification under section 513(f)(2).

Under the second procedure, rather than first submitting a 510(k) and then a request for classification, if the person determines that there is no legally marketed device upon which to base a determination of substantial equivalence, that person requests a classification under section 513(f)(2) of the FD&C Act.

Under either procedure for De Novo classification, FDA shall classify the device by written order within 120 days. The classification will be according to the criteria under section 513(a)(1) of the FD&C Act (21 U.S.C. 360c(a)(1)). Although the device was automatically within class III, the De Novo classification is considered to be the initial classification of the device.

We believe this De Novo classification will enhance patients' access to beneficial innovation, in part by reducing regulatory burdens. When FDA classifies a device into class I or II via the De Novo process, the device can serve as a predicate for future devices of that type, including for 510(k)s (see 21 U.S.C. 360c(f)(2)(B)(i)). As a result, other device sponsors do not have to submit a De Novo request or PMA in order to market a substantially equivalent device (see 21 U.S.C. 360c(i), defining “substantial equivalence”). Instead, sponsors can use the less-burdensome 510(k) process, when necessary, to market their device.

II. De Novo Classification

On January 29, 2016, Stetrix, Inc., submitted a request for De Novo classification of the Hem-Avert® Perianal Stabilizer. FDA reviewed the request in order to classify the device under the criteria for classification set forth in section 513(a)(1) of the FD&C Act.

We classify devices into class II if general controls by themselves are insufficient to provide reasonable assurance of safety and effectiveness, but there is sufficient information to establish special controls that, in combination with the general controls, provide reasonable assurance of the safety and effectiveness of the device for its intended use (see 21 U.S.C. 360c(a)(1)(B)). After review of the information submitted in the request, we determined that the device can be classified into class II with the establishment of special controls. FDA has determined that these special controls, in addition to the general controls, will provide reasonable assurance of the safety and effectiveness of the device.

Therefore, on December 19, 2016, FDA issued an order to the requester classifying the device into class II. FDA is codifying the classification of the device by adding 21 CFR 884.5210. We have named the generic type of device pressure wedge for the reduction of cesarean delivery, and it is identified as a prescription device that provides external mechanical support to the perianal region during the labor and vaginal delivery process. External mechanical support of the perianal region is intended to help reduce the occurrence of cesarean delivery.

FDA has identified the following risks to health associated specifically with this type of device and the measures required to mitigate these risks in table 1.

Table 1—Pressure Wedge for the Reduction of Cesarean Delivery Risks and Mitigation Measures Identified risk Mitigation measures Skin/tissue trauma Non-clinical performance data, Clinical performance data, and Labeling. Device failure Non-clinical performance data and Labeling. • Breakage • Slippage Infection Sterilization validation, Shelf life testing, and Labeling. Adverse tissue reaction Biocompatibility evaluation. Pain Labeling. Use error Labeling.

FDA has determined that special controls, in combination with the general controls, address these risks to health and provide reasonable assurance of safety and effectiveness. In order for a device to fall within this classification, and thus avoid automatic classification in class III, it would have to comply with the special controls named in this final order. The necessary special controls appear in the regulation codified by this order. This device is subject to premarket notification requirements under section 510(k).

At the time of classification, pressure wedge for the reduction of cesarean delivery is for prescription use only. Prescription devices are exempt from the requirement for adequate directions for use for the layperson under section 502(f)(1) of the FD&C Act and 21 CFR 801.5, as long as the conditions of 21 CFR 801.109 are met (referring to 21 U.S.C. 352(f)(1)).

III. Analysis of Environmental Impact

The Agency has determined under 21 CFR 25.34(b) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

IV. Paperwork Reduction Act of 1995

This final order establishes special controls that refer to previously approved collections of information found in other FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information in the guidance document “De Novo Classification Process (Evaluation of Automatic Class III Designation)” have been approved under OMB control number 0910-0844; the collections of information in part 814, subparts A through E, regarding premarket approval, have been approved under OMB control number 0910-0231; the collections of information in part 807, subpart E, regarding premarket notification submissions, have been approved under OMB control number 0910-0120, and the collections of information in 21 CFR part 801, regarding labeling, have been approved under OMB control number 0910-0485.

List of Subjects in 21 CFR Part 884

Medical devices.

Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR part 884 is amended as follows:

PART 884—OBSTETRICAL AND GYNECOLOGICAL DEVICES 1. The authority citation for part 884 continues to read as follows: Authority:

21 U.S.C. 351, 360, 360c, 360e, 360j, 360l, 371.

2. Add § 884.5210 to subpart F to read as follows:
§ 884.5210 Pressure wedge for the reduction of cesarean delivery.

(a) Identification. A pressure wedge for the reduction of cesarean delivery is a prescription device that provides external mechanical support to the perianal region during the labor and vaginal delivery process. External mechanical support of the perianal region is intended to help reduce the occurrence of cesarean delivery.

(b) Classification. Class II (special controls). The special controls for this device are:

(1) The patient contacting materials must be evaluated to be biocompatible.

(2) Nonclinical performance data must demonstrate that the device will not break when subjected to the forces it will be exposed to during labor.

(3) Performance data must validate the sterility of the device.

(4) Performance data must support the shelf life of the device by demonstrating continued sterility and package integrity over the labeled shelf life.

(5) Clinical performance data must be provided that characterizes the rate of skin/tissue trauma.

(6) The labeling must include:

(i) Specific instructions regarding the proper placement and use of the device.

(ii) A shelf life.

Dated: December 22, 2017. Leslie Kux, Associate Commissioner for Policy.
[FR Doc. 2017-28042 Filed 12-27-17; 8:45 am] BILLING CODE 4164-01-P
DEPARTMENT OF THE INTERIOR Bureau of Indian Affairs 25 CFR Part 11 [189A2100DD/AAKC001030/A0A501010.999900] RIN 1076-AF39 Addition of the Wind River Indian Reservation to the List of Courts of Indian Offenses AGENCY:

Bureau of Indian Affairs, Interior.

ACTION:

Final rule; confirmation.

SUMMARY:

The Bureau of Indian Affairs (BIA) is confirming the interim final rule published on October 27, 2016, establishing a Court of Indian Offenses (also known as a CFR Court) for the Wind River Indian Reservation.

DATES:

This final rule is effective on December 28, 2017.

FOR FURTHER INFORMATION CONTACT:

Ms. Elizabeth Appel, Director, Office of Regulatory Affairs & Collaborative Action—Indian Affairs, (202) 273-4680; [email protected]

SUPPLEMENTARY INFORMATION: I. Summary of Rule II. Procedural Requirements A. Regulatory Planning and Review (E.O. 12866) B. Regulatory Flexibility Act C. Small Business Regulatory Enforcement Fairness Act D. Unfunded Mandates Reform Act E. Takings (E.O. 12630) F. Federalism (E.O. 13132) G. Civil Justice Reform (E.O. 12988) H. Consultation With Indian Tribes (E.O. 13175 and Departmental Policy) I. Paperwork Reduction Act J. National Environmental Policy Act K. Effects on the Energy Supply (E.O. 13211) L. Clarity of This Regulation M. E.O. 13771: Reducing Regulation and Controlling Regulatory Costs I. Summary of Rule

Generally, Courts of Indian Offenses operate in those areas of Indian country where Tribes retain jurisdiction over Indians that is exclusive of State jurisdiction, but where Tribal courts have not been established to fully exercise that jurisdiction. The Eastern Shoshone Tribe and the Northern Arapaho Tribe have an equal joint interest in the Wind River Indian Reservation. Since the publication of the Interim Final Rule establishing the Court of Indian Offenses for the Wind River Indian Reservation, the Shoshone & Arapaho Tribal Court has operated without the legal support of the Eastern Shoshone Tribe, and with limited resources. The Bureau has attempted to work with the Northern Arapaho Tribe towards establishing a system of courts with concurrent jurisdiction. However, after nine months of operation, the joint nature of the Wind River Indian Reservation has proven establishing such a system untenable.

Allowing the Bureau of Indian Affairs to constitute a CFR Court will provide all residents on the Wind River Indian Reservation with comprehensive judicial services, and ensure the administration of justice and public safety. To accomplish this, this rule finalizes the revision of a section of 25 CFR part 11 to add the Wind River Indian Reservation in Wyoming to the list of areas in Indian country with established Courts of Indian Offenses (also known as CFR Courts). This rule inserts the Wind River Indian Reservation into a new paragraph (d) in 25 CFR 11.100.

An interim final rule published on October 27, 2016 (81 FR 74675). Comments received on the interim final rule are addressed in Section II.H of this preamble, below.

II. Procedural Requirements A. Regulatory Planning and Review (E.O. 12866 and 13563)

Executive Order 12866 provides that the Office of Information and Regulatory Affairs in the Office of Management and Budget will review all significant rules. The Office of Information and Regulatory Affairs has determined that this rule is not significant.

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

B. Regulatory Flexibility Act

This rule will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) because the rule affects only the administration of justice on a reservation through a CFR court.

C. Small Business Regulatory Enforcement Fairness Act

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

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

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

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

D. Unfunded Mandates Reform Act

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

E. Takings (E.O. 12630)

This rule does not affect a taking of private property or otherwise have taking implications under Executive Order 12630. A takings implication assessment is not required.

F. Federalism (E.O. 13132)

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

G. Civil Justice Reform (E.O. 12988)

This rule complies with the requirements of Executive Order 12988. Specifically, this rule:

(a) Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and

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

H. Consultation With Indian Tribes (E.O. 13175 and Departmental Policy)

The Department of the Interior strives to strengthen its government-to-government relationship with Indian Tribes through a commitment to consultation with Indian Tribes and recognition of their right to self-governance and Tribal sovereignty. We have evaluated this rule under the department's consultation policy under the criteria in Executive Order 13175 and have consulted with the affected tribes.

Prior to issuing this regulation, the Department of the Interior and its Agencies, Bureaus, and Offices, communicated repeatedly with the Eastern Shoshone Tribe and the Northern Arapaho Tribe regarding public safety concerns for the residents of the Wind River Indian Reservation. Following the withdrawal of the Northern Arapaho Tribe from the Joint Business Committee, the Shoshone & Arapaho Tribal Court continued to operate with limited resources and only with the support of the Northern Arapaho Tribe. The Northern Arapaho Tribe has established its own Northern Arapaho Tribal Code has retitled the Shoshone & Arapaho Tribal Court as the Northern Arapaho Tribal Court. The Northern Arapaho Tribe and Eastern Shoshone Tribe have responded to the Interim Final Rule. The Northern Arapaho Tribe provided extensive documentation on its right to establish an independent judiciary, without addressing the pragmatic consequences of having multiple courts with concurrent jurisdiction on the Reservation. The Eastern Shoshone Business Committee expressly requested that the Department establish and operate a Court of Indian Offenses for the Wind River Indian Reservation.

After reviewing these comments, and the operation of the Court of Indian Offenses for the Wind River Indian Reservation over the past nine months, the Department has determined that to ensure public safety, it is necessary to establish a Court of Indian Offenses for the Wind River Indian Reservation.

I. Paperwork Reduction Act

This rule does not contain information collection requirements, and a submission to the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.) is not required. We may not conduct or sponsor, and you are not required to respond to, a collection of information unless it displays a currently valid OMB control number.

J. National Environmental Policy Act

This rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the National Environmental Policy Act of 1969 (“NEPA”, 42 U.S.C. 4321 et seq.) is not required because the rule is covered by a categorical exclusion. This rule is excluded from the requirement to prepare a detailed statement because it is a regulation of an administrative nature. (For further information, see 43 CFR 46.210(i)) We have also determined that the rule does not involve any of the extraordinary circumstances listed in 43 CFR 46.215 that would require further analysis under NEPA.

K. Effects on the Energy Supply (E.O. 13211)

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

L. Clarity of This Regulation

We are required by Executive Orders 12866 (section 1(b)(12)), and 12988 (section 3(b)(1)(B)), and 13563 (section 1(a)), and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

(a) Be logically organized;

(b) Use the active voice to address readers directly;

(c) Use common, everyday words and clear language rather than jargon;

(d) Be divided into short sections and sentences; and

(e) Use lists and tables wherever possible.

If you feel that we have not met these requirements, send us comments by one of the methods listed in the ADDRESSES section. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that you find unclear, which sections or sentences are too long, the sections where you think lists or tables would be useful, etc.

M. E.O. 13771: Reducing Regulation and Controlling Regulatory Costs

This rule is not an E.O. 13771 regulatory action because this rule is not significant under E.O. 12866.

List of Subjects in 25 CFR Part 11

Courts, Indians—law.

For the reason stated in the preamble the Department of the Interior, Bureau of Indian Affairs amends part 11 in Title 25 of the Code of Federal Regulations as follows:

PART 11—COURTS OF INDIAN OFFENSES AND LAW AND ORDER CODE The interim final rule amending 25 CFR part 11 which was published at 81 FR 74675 on October 27, 2016, is adopted as final without change. Dated: December 19, 2017. John Tahsuda, Principal Deputy Assistant Secretary—Indian Affairs, Exercising the Authority of the Assistant Secretary—Indian Affairs.
[FR Doc. 2017-28063 Filed 12-27-17; 8:45 am] BILLING CODE 4337-15-P
DEPARTMENT OF THE INTERIOR Bureau of Indian Affairs 25 CFR Part 11 [189A2100DD/AAKC001030/A0A501010.999900] Court of Indian Offenses Serving the Wind River Indian Reservation AGENCY:

Bureau of Indian Affairs, Interior.

ACTION:

Waiver of certain regulations.

SUMMARY:

This document accompanies the final rule establishing a Court of Indian Offenses (also known as a CFR Court) for the Wind River Indian Reservation published today and waives the application of certain regulations for the Court of Indian Offenses serving the Wind River Indian Reservation.

DATES:

This waiver is applicable on December 28, 2017.

FOR FURTHER INFORMATION CONTACT:

Elizabeth Appel, Director, Office of Regulatory Affairs & Collaborative Action—Indian Affairs, (202) 273-4680; [email protected]

SUPPLEMENTARY INFORMATION:

Generally, Courts of Indian Offenses operate in those areas of Indian country where Tribes retain jurisdiction over Indians exclusive of State jurisdiction, but where Tribal courts have not been established to fully exercise that jurisdiction. The Eastern Shoshone Tribe and the Northern Arapaho Tribe have an equal joint interest in the Wind River Indian Reservation. However, since October of 2016, the former Shoshone & Arapaho Tribal Court has operated only with the support of the Northern Arapaho Tribe. The Bureau of Indian Affairs (BIA) is taking the next step to provide all residents on the Wind River Indian Reservation with comprehensive judicial services, and ensure the permanent administration of justice and public safety.

Therefore, the Secretary has determined, in his discretion under 5 U.S.C. 301, 25 U.S.C. 2 and 9, that it is necessary to waive 25 CFR 11.104(a), (b) and 11.201(a), (e), and (f), as well as a portion of 25 CFR 11.108, as applied to the Wind River Indian Reservation. This waiver will ensure that a BIA Court of Indian Offenses can effectively operate and serve all of the residents of the Wind River Indian Reservation.

The Secretary has determined that, for the Wind River Reservation, it is necessary to waive 25 CFR 11.201(a), (e), and (f)—requirements that a magistrate must be confirmed by a tribal governing body, or, in the case of multi-tribal courts, confirmation by a majority of the tribal governing bodies; and requirements regarding training or other qualifications for CFR Court Magistrates—to ensure that the Bureau has the ability to hire and staff the Court with qualified employees efficiently.

Additionally, 25 CFR 11.104, which provides that the regulations in part 11 continue to apply until either: (1) The BIA and the tribe enter into a contract or compact for the tribe to provide judicial services; or (2) [t]he tribe has put into effect a law-and-order code that establishes a court system, is waived in part as applied to the Wind River Indian Reservation. Due to the shared nature of the Wind River Indian Reservation, the practical consequences of separate courts with overlapping jurisdiction will be further confusion about the authority of each court and exponentially increase the difficulty of maintaining law and order on the Reservation. While the Tribes are free to operate judicial systems independently, the Department will not acknowledge or enforce acts of those judicial systems entered after the publication of this waiver, with the exception that the Department will acknowledge any emergency restraining or protective issued by the Northern Arapaho Court within ten (10) days of the publication of this waiver, until such time as both tribes jointly petition under 25 CFR 11.104.

Finally, 25 CFR 11.108 is waived to the extent necessary for the Court of Indian Offenses for the Wind River Indian Reservation to enforce Titles II, III, V, VII, VIII, IX, Title XI Chapters 3 and 4, Title XII Chapter 2, Titles XIV, and XVI of the Shoshone and Arapaho Law and Order Code as it existed on October 1, 2016. To the extent that the Shoshone and Arapaho Law and Order Code, as written, requires an action of the Joint Business Committee as a predicate for a criminal offense or the regulation of an action, e.g. the determination of the hunting season, that authority is hereby vested in the BIA Superintendent of the Wind River Agency.

The authority for publication of this document is: 5 U.S.C. 301; R.S. 463, 25 U.S.C. 2; R.S. 465, 25 U.S.C. 9; 42 Stat. 208, 25 U.S.C. 13; 38 Stat. 586, 25 U.S.C. 200.

Dated: December 5, 2017. John Tahsuda, Principal Deputy Assistant Secretary—Indian Affairs, Exercising the Authority of the Assistant Secretary—Indian Affairs.
[FR Doc. 2017-28062 Filed 12-27-17; 8:45 am] BILLING CODE 4337-15-P
DEPARTMENT OF THE TREASURY Office of Foreign Assets Control 31 CFR Part 576 Iraq Stabilization and Insurgency Sanctions Regulations AGENCY:

Office of Foreign Assets Control, Treasury.

ACTION:

Final rule.

SUMMARY:

The Department of the Treasury's Office of Foreign Assets Control (OFAC) is adopting a final rule amending the Iraq Stabilization and Insurgency Sanctions Regulations to implement Executive Order (E.O.) 13668 of May 27, 2014 (“Ending Immunities Granted to the Development Fund for Iraq and Certain Other Iraqi Property and Interests in Property Pursuant to Executive Order 13303, as Amended”). These amendments also implement certain technical and conforming changes.

DATES:

Effective: December 28, 2017.

FOR FURTHER INFORMATION CONTACT:

The Department of the Treasury's Office of Foreign Assets Control: Assistant Director for Licensing, tel.: 202-622-2480, Assistant Director for Regulatory Affairs, tel.: 202-622-4855, Assistant Director for Sanctions Compliance & Evaluation, tel.: 202-622-2490; or the Department of the Treasury's Office of the Chief Counsel (Foreign Assets Control), Office of the General Counsel, tel.: 202-622-2410.

SUPPLEMENTARY INFORMATION: Electronic Availability

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

Background

OFAC issued the Iraq Stabilization and Insurgency Sanctions Regulations, 31 CFR part 576 (the “Regulations”), on September 13, 2010 (see 75 FR 55463), as a final rule to implement E.O. 13303 (68 FR 31931, May 28, 2003) (E.O. 13303), E.O. 13315 (68 FR 52315, September 3, 2003), E.O. 13350 (69 FR 46055, July 30, 2004), E.O. 13364 (69 FR 70177, December 2, 2004) (E.O. 13364), and E.O. 13438 (72 FR 39719, July 19, 2007). OFAC has amended the Regulations on several occasions. Today, OFAC is making amendments to the Regulations to implement E.O. 13668 (79 FR 31019, May 29, 2014) (E.O. 13668).

In support of the orderly reconstruction of Iraq, the restoration and maintenance of peace and security in Iraq, and the development of political, administrative, and economic institutions in Iraq, E.O. 13303, as amended by E.O. 13364, prohibited and deemed null and void, with certain limited exceptions, any attachment, judgment, decree, lien, execution, garnishment, or other judicial process with respect to: (i) The Development Fund for Iraq; (ii) all Iraqi petroleum and petroleum products, and interests therein, but only until title passes to the initial purchaser, and proceeds, obligations, or any financial instruments of any nature whatsoever arising from or related to the sale or marketing thereof, and interests therein, in which any foreign country or a national thereof has any interest, that are in the United States, that thereafter came within the United States, or that were or thereafter came within the possession or control of United States persons; and (iii) any accounts, assets, investments, or any other property of any kind owned by, belonging to, or held by the Central Bank of Iraq, or held, maintained, or otherwise controlled by any financial institution of any kind in the name of, on behalf of, or otherwise for the Central Bank of Iraq.

E.O. 13668 terminated the protections granted under amended E.O. 13303 in response to the changed circumstances in Iraq, including the Government of Iraq's progress in resolving and managing the risk associated with outstanding debts and claims arising from actions of the previous regime. Today, OFAC is amending the Regulations to implement E.O. 13668 by removing the regulatory provisions that implemented the protections granted under amended E.O. 13303. These amendments also make certain technical and conforming changes.

Public Participation

Because the amendment of the Regulations involves a foreign affairs function, the provisions of E.O. 12866 and 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 E.O. 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.

Paperwork Reduction Act

The collections of information related to the Regulations are contained in 31 CFR part 501 (the “Reporting, Procedures, and Penalties Regulations”). Pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), those collections of information have been approved by the Office of Management and Budget under control number 1505-0164. 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.

List of Subjects in 31 CFR Part 576

Administrative practice and procedure, Banks, banking, Foreign trade, Iraq, Petroleum, Sanctions.

For the reasons set forth in the preamble, the Department of the Treasury's Office of Foreign Assets Control amends 31 CFR part 576 as follows:

PART 576—IRAQ STABILIZATION AND INSURGENCY SANCTIONS REGULATIONS 1. The authority citation for part 576 is revised to read as follows: Authority:

3 U.S.C. 301; 22 U.S.C. 287c; 31 U.S.C. 321(b); 50 U.S.C. 1601-1651, 1701-1706; Pub. L. 110-96, 121 Stat. 1011; E.O. 13303, 68 FR 31931, 3 CFR, 2003 Comp., p. 227; E.O. 13315, 68 FR 52315, 3 CFR, 2003 Comp., p. 252; E.O. 13350, 69 FR 46055, 3 CFR, 2004 Comp., p. 196; E.O. 13364, 69 FR 70177, 3 CFR, 2004 Comp., p. 236; E.O. 13438, 72 FR 39719, 3 CFR, 2007 Comp., p. 224; E.O. 13668, 79 FR 31019, 3 CFR, 2014 Comp., p. 248.

Subpart B—Prohibitions
§ 576.206 [Removed]
2. Remove § 576.206 from subpart B. Subpart C—General Definitions 3. Amend § 576.303 by: a. Revising paragraphs (a) and (c); b. In paragraph (b), adding the word “and” after the semi-colon; and c. Removing paragraphs (d) and (e).

The revisions read as follows:

§ 576.303 Effective date.

(a) With respect to a person whose property and interests in property are blocked pursuant to § 576.201(a)(1):

(1) 12:01 a.m. eastern daylight time, August 29, 2003, for those persons listed on the Annex to Executive Order 13315; and

(2) 12:01 a.m. eastern daylight time, July 30, 2004, for those persons added to the Annex to Executive Order 13315 by Executive Order 13350;

(c) With respect to the transactions prohibited by § 576.201(b) or § 576.208, 12:01 a.m. eastern daylight time, July 30, 2004.

§ 576.308 [Removed]
4. Remove § 576.308 from Subpart C. Subpart D—Interpretations
§ 576.404 [Amended]
5. In § 576.404, remove paragraph (c). Subpart E—Licenses, Authorizations, and Statements of Licensing Policy
§ 576.508 [Removed]
6. Remove § 576.508 from subpart E. Dated: December 22, 2017. John E. Smith, Director, Office of Foreign Assets Control.
[FR Doc. 2017-28023 Filed 12-27-17; 8:45 am] BILLING CODE 4810-AL-P
DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG-2017-0161] Drawbridge Operation Regulation; Canaveral Barge Canal, Canaveral, FL AGENCY:

Coast Guard, DHS.

ACTION:

Notice of deviation from drawbridge regulation.

SUMMARY:

The Coast Guard has issued a temporary deviation from the operating schedule that governs the SR 401 Drawbridges, mile 5.5 at Port Canaveral, Florida. The deviation is necessary to reduce vehicular traffic congestion and to ensure the safety of roadways while passengers are transiting to and from the cruise ship terminals. Since the arrival of additional cruise ships to the Port of Canaveral, massive traffic back-ups have been caused by the on demand drawbridge openings. This deviation allows the bridges to not open to navigation during prime cruise ship passenger loading and unloading times on Saturdays and Sundays.

DATES:

This deviation is effective without actual notice from December 28, 2017 through January 31, 2018. For the purposes of enforcement, actual notice will be used from December 5, 2017, until December 28, 2017.

ADDRESSES:

The docket for this deviation, USCG-2017-0161 is available at http://www.regulations.gov. Type the docket number in the “SEARCH” box and click “SEARCH”. Click on Open Docket Folder on the line associated with this deviation.

FOR FURTHER INFORMATION CONTACT:

If you have questions on this temporary deviation, call or email LT Allan Storm, Sector Jacksonville, Waterways Management Division, U.S. Coast Guard; telephone 904-714-7616, email [email protected]

SUPPLEMENTARY INFORMATION:

The Canaveral Port Authority, with concurrence from the bridge owner, Florida Department of Transportation have requested the Coast Guard consider allowing the SR 401 Drawbridges across the Canaveral Barge Canal, Port Canaveral, Florida to not open to navigation from 11 a.m. to 2 p.m. on Saturdays and Sundays.

On October 23, 2017 the Coast Guard published a notice of proposed rulemaking entitled “Drawbridge Operation Regulation; Canaveral Barge Canal, Canaveral, FL in the Federal Register (82 FR 48940). Under that proposed rule, the bridges would remain in the closed-to-navigation position from 11 a.m. to 2 p.m. on Saturdays and Sundays. The existing regulation for the SR 401 Drawbridges, across Canaveral Barge Canal, mile 5.5 at Port Canaveral, FL is published in 33 CFR 117.273(b). The SR 401 Drawbridges provide a vertical clearance of 25 feet in the closed position at Mean High Water (MHW) and a horizontal clearance of 90 feet between fenders. The bridge logs from October 2017 indicate that, at most, approximately nine vessels may be affected by establishing this three hour bridge closure on Saturdays and Sundays. The majority of the opening requests were either at the beginning or end of this closure period; therefore, by adjusting their transits slightly there should be a negligible overall effect. This temporary deviation is effective from December 28, 2017 until January 31, 2018. The Coast Guard will continue to evaluate the impact to mariners navigating this area during the closure periods.

Vessels able to pass through the bridge in the closed position may do so at any time. The bridge will be able to open for emergencies and there is no immediate alternate route for vessels to pass through the bridge in closed position. The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessel operators can arrange their transits to minimize any impact caused by the temporary deviation.

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

Dated: December 5, 2017. Barry Dragon, Director, Bridge Branch, Seventh Coast Guard District.
[FR Doc. 2017-27969 Filed 12-27-17; 8:45 am] BILLING CODE 9110-04-P
DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG-2017-1031] Drawbridge Operation Regulation; Passaic River, Newark, NJ AGENCY:

Coast Guard, DHS.

ACTION:

Notice of temporary deviation from drawbridge regulation; modification.

SUMMARY:

The Coast Guard has modified a temporary deviation from the operating schedule that governs the Routes 1 & 9 (Lincoln Highway) Bridge across the Passaic River, mile 1.8 at Newark, New Jersey. This modified deviation extends the period the bridge may remain in the closed-to-navigation position and is necessary to facilitate structural steel repairs at the lift span.

DATES:

This modified deviation is effective from 12:01 a.m. January 6, 2018 to 11:59 p.m. February 2, 2018.

ADDRESSES:

The docket for this deviation, USCG-2017-1031, is available at http://www.regulations.gov. Type the docket number in the “SEARCH” box and click “SEARCH”. Click on Open Docket Folder on the line associated with this deviation.

FOR FURTHER INFORMATION CONTACT:

If you have questions on this temporary deviation, call or email Judy K. Leung-Yee, Bridge Management Specialist, First District Bridge Branch, U.S. Coast Guard; telephone 212-514-4336, email [email protected]

SUPPLEMENTARY INFORMATION:

On November 21, 2017, the Coast Guard published a temporary deviation entitled “Drawbridge Operation Regulation; Passaic River, Newark, NJ” in the Federal Register (82 FR 55322). That temporary deviation allows the bridge to be in the closed position from November 20, 2017 through January 5, 2018.

The owner of the bridge, the New Jersey Department of Transportation, requested a modification of the currently published deviation to extend the bridge closure from 12:01 a.m. January 6, 2018 to 11:59 p.m. February 2, 2018 in order to facilitate structural steel repairs at the lift span.

The Routes 1 & 9 Bridge across the Passaic River, mile 1.8, at Newark, New Jersey is a vertical lift bridge with a vertical clearance of 40 feet at mean high water and 45 feet at mean low water in the closed position. The existing drawbridge operating regulations are listed at 33 CFR 117.739(b).

The waterway users are seasonal recreational vessels and commercial vessels of various sizes. Coordination with waterway users 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.

Dated: December 21, 2017. Christopher J. Bisignano, Supervisory Bridge Management Specialist, First Coast Guard District.
[FR Doc. 2017-28008 Filed 12-27-17; 8:45 am] BILLING CODE 9110-04-P
FEDERAL COMMUNICATIONS COMMISSION 47 CFR Parts 1, 51, and 63 [WC Docket No. 17-84; FCC 17-154] Accelerating Wireline Broadband Deployment by Removing Barriers to Infrastructure Investment AGENCY:

Federal Communications Commission.

ACTION:

Final rule.

SUMMARY:

In this document, a Report and Order takes a number of actions aimed at removing unnecessary regulatory barriers to the deployment of high-speed broadband networks. The Report and Order adopts pole attachment reforms, changes to the copper retirement and other network change notification processes, and changes to the section 214(a) discontinuance application process. The Commission adopted the Report and Order in conjunction with a Declaratory Ruling and Further Notice of Proposed Rulemaking (FNPRM) in WC Docket No. 17-84, published elsewhere in this issue of the Federal Register.

DATES:

Effective January 29, 2018, except for the amendments to 47 CFR 1.1424, 51.325, 51.329, 51.332, 51.333, 63.60, and 63.71, which contain information collection requirements that have not been approved by OMB. The Federal Communications Commission will publish a document in the Federal Register announcing the effective date.

FOR FURTHER INFORMATION CONTACT:

Wireline Competition Bureau, Competition Policy Division, Michele Berlove, at (202) 418-1477, [email protected], or Michael Ray, at (202) 418-0357, [email protected] For additional information concerning the Paperwork Reduction Act information collection requirements contained in this document, send an email to [email protected] or contact Nicole Ongele at (202) 418-2991.

SUPPLEMENTARY INFORMATION:

This is a summary of the Commission's Report and Order in WC Docket No. 17-84, FCC 17-154, adopted November 16, 2017 and released November 29, 2017. The full text of this document is available for public inspection during regular business hours in the FCC Reference Information Center, Portals II, 445 12th Street SW, Room CY-A257, Washington, DC 20554. It is available on the Commission's website at https://apps.fcc.gov/edocs_public/attachmatch/FCC-17-154A1.docx.

Synopsis I. Introduction

1. Access to high-speed broadband is an essential component of modern life, providing unfettered access to information and entertainment, an open channel of communication to far-away friends and relatives, and unprecedented economic opportunity. Technological innovation and private investment have revolutionized American communications networks in recent years, making possible new and better service offerings, and bringing the promise of the digital revolution to more Americans than ever before. As part of this transformation, consumers are increasingly moving away from traditional telephone services provided over copper wires and towards next-generation technologies using a variety of transmission means, including copper, fiber, and wireless spectrum-based services.

2. Despite this progress, too many communities remain on the wrong side of the digital divide, unable to take full part in the benefits of the modern information economy. To close that digital divide, we seek to use every tool available to us to accelerate the deployment of advanced communications networks. Accordingly, today we embrace the transition to next-generation networks and the innovative services they enable, and adopt a number of important reforms aimed at removing unnecessary regulatory barriers to the deployment of high-speed broadband networks.

3. By removing unnecessary impediments to broadband deployment, the regulatory reforms we adopt today will enable carriers to more rapidly shift resources away from maintaining outdated legacy infrastructure and services and towards the construction of next-generation broadband networks bringing innovative new broadband services. And by reducing the costs to deploy high-speed broadband networks, we make it more economically feasible for carriers to extend the reach of their networks, increasing competition among broadband providers to communities across the country. We expect competition will include such benefits as lower prices to consumers. We anticipate taking additional action in the future in this proceeding to further facilitate broadband deployment.

II. Background

4. On April 20, 2017, the Commission adopted a notice of proposed rulemaking, notice of inquiry, and request for comment (Wireless Infrastructure NPRM) proposing and seeking comment on a number of actions designed to accelerate the deployment of next-generation networks and services by removing barriers to infrastructure investment. See 82 FR 22453 (May 16, 2017). More specifically, the Wireline Infrastructure NPRM sought comment on: (1) Reforming the Commission's pole attachment rules to make it easier, faster, and less costly to access the poles, ducts, conduits, and rights-of-way necessary for building out next-generation networks; (2) changing the process for retiring copper facilities and making other network changes to provide greater regulatory certainty and better enable carriers to transition more rapidly to modern networks; (3) streamlining the regulatory process by which carriers must obtain Commission authorization to discontinue legacy services so that scarce capital is free to be spent on delivering modern, innovative services; (4) using the Commission's preemption authority to prevent the enforcement of state and local laws that inhibit broadband deployment; and (5) changing the Commission's legal interpretations to clarify when carriers must ask for permission to alter or discontinue a service and, thereby, to reduce the regulatory uncertainty that is costly and burdensome to providers.

5. At the same time, the Commission's Broadband Deployment Advisory Committee (BDAC), a federal advisory committee chartered earlier this year, is examining several of the issues raised in the Wireline Infrastructure NPRM. The BDAC is charged with providing the Commission with recommendations on how to accelerate the deployment of high-speed internet access, or “broadband,” by reducing and/or removing regulatory barriers to infrastructure investment. Since being chartered, the BDAC has held [three] public meetings and has five active working groups. We anticipate that the BDAC will provide important input on several matters relevant to this proceeding. We will examine the BDAC's recommendations closely in considering whether and how to move forward with those issues.

III. Report and Order A. Pole Attachment Reforms

6. In this Order, we address three pole attachment issues on which the Commission sought comment in the Wireline Infrastructure NPRM: (1) Excluding capital costs recovered via make-ready fees from pole attachment rates; (2) establishing a shot clock for resolution of pole attachment access complaints; and (3) allowing incumbent local exchange carriers (LECs) access to poles owned by other LECs. In the Wireline Infrastructure NPRM, we requested comment on several other pole attachment issues, and we anticipate that we will address other pole attachment issues in a future order. In addition to the pole attachment issues addressed by this Order, the Commission sought comment in the Wireline Infrastructure NPRM on proposals that would adopt a streamlined timeframe for gaining access to utility poles, reduce charges paid by attachers to utilities for work done to make a pole ready for new attachments, and adopt a formula for computing the maximum pole attachment rate that may be imposed on an incumbent LEC.

1. Excluding Capital Costs Recovered Via Make-Ready Fees From Pole Attachment Rates

7. We adopt the Wireline Infrastructure NPRM's proposal to amend § 1.1409(c) of our rules to exclude capital expenses already recovered via non-recurring make-ready fees from recurring pole attachment rates. “Make-ready” generally refers to the modification of poles or lines or the installation of certain equipment (e.g., guys and anchors) to accommodate additional facilities on poles. In adopting this proposal, we reaffirm and emphasize longstanding Commission precedent. Almost forty years ago, the Commission found that “where a utility has been directly reimbursed by [an] . . . operator for non-recurring costs, including plant, such costs must be subtracted from the utility's corresponding pole line capital account to insure that . . . operators are not charged twice for the same costs.” Since that time, the Commission has made clear that “[m]ake-ready costs are non-recurring costs for which the utility is directly compensated and as such are excluded from expenses used in the rate calculation.” Nonetheless, the record demonstrates that not all attachers benefit from lower rates in these circumstances, in part because our rules do not explicitly require utilities to exclude already-reimbursed capital costs from their pole attachment rates.

8. We agree with commenters that argue that codifying the exclusion of capital expenses already recovered via make-ready fees from recurring pole attachment rates will help eliminate confusion. Codifying this exclusion is consistent with the BDAC recommendation that we clarify that utilities are not allowed to “use an increase in rates to recover capital costs already addressed in make-ready fees.” While some commenters argue that it is unnecessary to codify this exclusion because current Commission policies already prevent make-ready payments from being included in the formulas used to calculate recurring pole attachment rates, we find that codification of the rule will enhance the deployment of broadband services and should improve compliance with long-standing precedent by providing additional clarity in the text of our rules.

2. Establishing a “Shot Clock” for Resolution of Pole Access Complaints

9. 180-Day Shot Clock. We establish a 180-day “shot clock” for Enforcement Bureau resolution of pole access complaints filed under § 1.1409 of our rules. A “pole access complaint” is a complaint filed by a cable television system or a provider of telecommunications service that alleges a complete denial of access to a utility pole. This term does not encompass a complaint alleging that a utility is imposing unreasonable rates, terms, or conditions that amount to a denial of pole access. When the Commission last considered this issue as part of the 2011 Pole Attachment Order, the record did not support the creation of new pole attachment complaint rules. By contrast, the record before us today includes broad support for establishing a shot clock for resolving pole access complaints, and we agree with commenters that establishment of such a shot clock will expedite broadband deployment by resolving pole attachment access disputes in a quicker fashion. As the POWER Coalition explains, pole access complaints “are more urgent than complaints alleging unreasonable rates, terms and conditions,” and because the only meaningful remedy for lack of pole access “is the grant of immediate access to the requested poles,” it is crucial for the Enforcement Bureau to complete its review of pole access complaints in a timely manner. Similar to the shot clock for Commission review of domestic transfer of control applications, we expect that the 180-day shot clock for pole access complaints will be met except in extraordinary circumstances.

10. We agree with commenters that argue that 180 days provides a reasonable timeframe for the Enforcement Bureau to resolve pole access complaints. While some commenters request a shorter shot clock, and the Utilities Technology Council opposes a shot clock on the grounds that it would inhibit the Enforcement Bureau's ability to comprehensively evaluate facts on a case-by-case basis, we find that 180 days will provide the Enforcement Bureau sufficient time to carefully evaluate the particular facts of each pole access complaint. We note that in a separate proceeding, the Commission is considering whether to adopt a shot clock for all pole attachment complaints. We find the record for this Order is sufficient to support the adoption now of a shot clock for a narrowly-targeted group of pole attachment complaints (i.e., those alleging a denial of access to poles) that will aid broadband deployment and investment. We find it instructive that, as Verizon points out, a 180-day shot clock for pole access complaints aligns “with the time period that Congress gave reverse-preemption states to decide pole attachment complaints” under section 224(c)(3)(B) of the Act. Furthermore, the Enforcement Bureau can pause the shot clock in certain situations and/or exceed 180 days in extraordinary circumstances, which should ensure that the Enforcement Bureau can comprehensively evaluate any pole attachment access dispute.

11. Starting the Shot Clock at the Time a Complaint Is Filed. We direct the Enforcement Bureau to start the 180-day shot clock when a pole access complaint is filed. This approach is consistent with that set forth in the Act for states that act on pole attachment complaints, is broadly supported in the record, and was recommended by the BDAC.

12. Pausing the Shot Clock. The Enforcement Bureau may pause the shot clock when actions outside the Enforcement Bureau's control delay the Bureau's review of a pole access complaint. This approach also has broad support in the record and was recommended by the BDAC. We find it instructive that in the transactions context, the reviewing Bureau can pause the shot clock while waiting for parties to provide additional requested information. The Enforcement Bureau may, for example, pause the shot clock when the parties need additional time to provide key information requested by the Bureau, or when the parties decide to pursue informal dispute resolution or request a delay to pursue settlement discussions after a pole access complaint is filed. The Enforcement Bureau should resume the shot clock immediately when the cause for pausing the shot clock has been resolved. We direct the Enforcement Bureau to provide the parties written notice of any pause in the shot clock, as well as when the shot clock is resumed.

13. Establishment of Pre-Complaint Procedures. Consistent with our goal of adopting measures to expedite broadband deployment by resolving pole attachment access disputes in a more timely manner, we decline to delay the beginning of the complaint process by requiring the parties to resolve procedural issues and deadlines in a meeting with Enforcement Bureau staff prior to the filing of a pole access complaint. We also decline the suggestion made by Ameren et al. that we require pre-complaint mediation or the discussion of mediation in a pre-complaint meeting. Successful mediation can save the parties and the Enforcement Bureau valuable time and resources and we encourage the voluntary use of mediation through the Enforcement Bureau, but we decline to adopt such a requirement and believe the decision as to whether to mediate is better left to the parties. We also recognize that there are times when the Enforcement Bureau requests that parties participate in post-complaint meetings in order to resolve procedural issues and deadlines associated with its review of a complaint. We find that, in general, the complaint process has proceeded in a more timely and smooth manner as a result of post-complaint meetings, and encourage the Enforcement Bureau to continue that practice as appropriate.

14. Use of Shot Clock for Other Pole Attachment Complaints. We also decline at this time to adopt a 180-day shot clock for pole attachment complaints other than those relating to pole access issues. We recognize the BDAC adopted a recommendation in favor of a 180-day shot clock for all pole attachment complaints, including pole access complaints; however, in the Complaint Procedures NPRM, we are currently seeking comment on whether to apply shot clocks (either uniformly or with differing deadlines) to a number of types of formal complaints, including non-access pole attachment complaints filed under section 224 of the Act. In addition to complaints filed under section 224 of the Act, the Commission is seeking comment on whether to adopt shot clocks for complaints filed under sections 208, 255, 716, and 718 of the Act. Although some commenters in this record support a 180-day shot clock for all pole attachment complaints, we defer to the record being developed in the Complaint Procedures NPRM for resolution of this issue. We note the BDAC also recommended adoption of a 180-day shot clock for all pole attachment complaints.

3. Recognizing a Reciprocal System of Access to Poles Pursuant to Section 251

15. We also take this opportunity to reconsider the Commission's previous interpretation of the interplay between sections 224 and 251(b)(4) of the Act. Based on the record before us, we conclude the better interpretation is to give effect to both sections and read the two sections in harmony as creating a reciprocal system of infrastructure access rules in which incumbent LECs, pursuant to section 251(b)(4) of the Act, are guaranteed access to poles owned or controlled by competitive LECs and vice versa, subject to the rates, terms, and conditions for pole attachments described in section 224. We note that incumbent LECs will be entitled to file pole access complaints under the new rule adopted in this Order and such complaints will be subject to the 180-day shot clock. As CenturyLink explains, the disparate treatment of incumbent LECs and competitive LECs prevents incumbent LECs from gaining access to competitive LEC-controlled infrastructure and in doing so dampens the incentives for all LECs to build and deploy the infrastructure necessary for advanced communications services.

16. Section 251 of the Act provides that “[e]ach local exchange carrier” has the duty “to afford access to the poles, ducts, conduits, and rights-of-way of such carrier to competing providers of telecommunications services on rates, terms, and conditions that are consistent with section 224 [of the Act].” Section 224(f) of the Act requires utilities to provide cable television systems and telecommunications carriers with nondiscriminatory access to any pole that they own or control. While section 224(a) of the Act defines a “utility” to include both incumbent LECs and competitive LECs, the definition of “telecommunications carrier” used in section 224 specifically does not include incumbent LECs, thus potentially denying incumbent LECs the benefits of section 224's specific pole attachment access and rate protections.

17. When the Commission initially examined this disparate treatment of incumbent LECs as part of the First Local Competition Order, it held that incumbent LECs cannot use section 251(b)(4) as a means of gaining access to competitive LEC poles because section 224(a) specifically excludes incumbent LECs from the definition of those telecommunications carriers entitled to nondiscriminatory access to utility poles. As a result, the Commission concluded it would be inappropriate to grant incumbent LECs access rights that the Commission believed were “expressly withheld by section 224.” Consequently, while incumbent LECs were required as utilities under section 224 to provide nondiscriminatory access to their poles to all cable television providers and telecommunications carriers (including competitive LECs), incumbent LECs could not obtain reciprocal nondiscriminatory access to the poles controlled by competitive LECs. However, as the Ninth Circuit Court of Appeals explained in US West Communications, Inc. v. Hamilton, sections 224 and 251 can “be read in harmony” to support a right of access for incumbent LECs on other LEC poles. Despite its skepticism of the Commission's analysis in the First Local Competition Order, the Ninth Circuit held it was obligated to adhere to that analysis because the parties had not directly challenged the First Local Competition Order via the Hobbs Act.

18. Because the Commission's prior interpretation of sections 224 and 251(b)(4) fails to give full effect to the language of section 251(b)(4) and in doing so also disserves the public interest and harms consumers by distorting both incumbent LEC and competitive LEC incentives to construct infrastructure that can be used to provide broadband services, we think the better approach is to read the sections in harmony. We agree with the Ninth Circuit in US West, as well as with commenters such as AT&T and WTA, that section 251(b)(4) provides incumbent LECs with an independent right of access to the poles owned by other LECs and that section 224 then determines the appropriate rates, terms, and conditions of such access. We disagree with NCTA's claim that imposing new infrastructure access obligations on competitive LECs “would be of limited relevance because the only infrastructure owned by competitive LECs that conceivably would be useful to an incumbent LEC is conduit.” We find that broadband deployment is likely to be spurred by applying the reciprocal access obligations to all broadband infrastructure covered by section 251(b)(4) of the Act (e.g., poles, ducts, conduits, rights-of-way). As the Ninth Circuit stated in US West, “Section 224 deals with all utilities, whereas section 251(b)(4) concerns only telecommunications carriers. Section 224 allows CLECs, but not ILECs, access to the physical networks and rights-of-way of all other utilities, including those belonging to electric companies, gas companies, water companies, and the like. Because ILECs had their own physical networks and established rights-of-way when the Act was passed, Congress may have seen fit to grant access to non-carrier utilities' networks and rights-of-way only to CLECs. But in order to maintain a level playing field within the telecommunications industry itself, Congress reasonably could have granted reciprocal access among telecommunications carriers, ILECs and CLECs alike, by means of section 251(b)(4).” Our reading gives full effect to the language of both sections 224 and 251(b)(4) without creating a conflict between them and also advances our goal in this proceeding of advancing broadband infrastructure investment and deployment.

19. We disagree with ExteNet and the Competitive Fiber Providers' arguments that reversing the Commission's prior interpretation of sections 224 and 251(b)(4) “could discourage the broadband deployment these proceedings are designed to promote, impose discriminatory costs and obligations on only one type of owner of competitive poles, and reverse decades of light touch regulation for competitive providers.” According to ExteNet and the Competitive Fiber Providers, the burden of accommodating incumbent LEC pole access will fall disproportionately on competitive LECs instead of the cable companies that are not “local exchange carriers” under section 251(b)(4). However, even if ExteNet and the Competitive Fiber Providers are correct that accommodating incumbent LEC pole access creates additional burdens for non-cable competitive LECs, we are bound by Congress' determination in section 251(b)(4) to apply such obligations to competitive LECs and not to cable operators.

20. We also fail to see how the imposition of incumbent LEC pole access obligations on poles owned by other LECs will “stifle competitive deployment of fiber infrastructure” as argued by the Competitive Fiber Providers. Competitive LECs are already required to make their pole infrastructure available to other competitive LECs as well as cable television system operators, so any pole deployment decisions would be made (or have been made) with the knowledge that other pole attachers must be accommodated. Any incremental costs associated with expanding the accommodation to include incumbent LECs should not deter competitive LEC pole ownership because such costs will be borne by the incumbent LEC attachers in the form of make-ready fees. Consequently, we find that rather than stifling broadband deployment, the opposite is more likely—allowing incumbent LEC access to poles owned by other LECs should expand broadband deployment by increasing access to broadband infrastructure.

21. We also disagree with ExteNet and the Competitive Fiber Providers' argument that changing our interpretation of sections 251(b)(4) and 224 will give incumbent LECs greater leverage over their competitors because they own more poles and therefore have greater bargaining power. Our decision does not change the pole access rights of competitive LECs, as they will continue to have mandatory non-discriminatory access to incumbent LEC poles. Rather than “putting the Commission's thumb on the scale in favor of the party [incumbent LECs] that owns a much greater percentage of poles,” our decision instead creates regulatory parity among all categories of attachers by ensuring reciprocal pole access rights.

B. Streamlining the Network Change Notification Process

22. Today we eliminate unnecessary and costly regulations governing network change disclosures, including copper retirements, while retaining certain requirements whose benefits outweigh the associated costs to incumbent LECs. The revised rules we adopt today, consistent with the Act, the Commission's longstanding policy goals, and supported by the record now before us, ensure that competing providers receive “adequate, but not excessive, time to respond to changes to an incumbent LEC's network.” We conclude that the Commission failed to achieve this balanced objective in 2015 when it imposed far-reaching and burdensome notice obligations on incumbent LECs that frustrate their efforts to modernize their networks. By reforming our rules and returning to the Commission's longstanding balance, we eliminate unnecessary delays in our regulatory process that help carriers more rapidly transition to more modern networks benefitting more Americans at lower costs.

23. Section 251(c)(5) of the Act requires an incumbent LEC “to provide reasonable public notice of changes” to its facilities or network that might affect the interoperability of those facilities or networks. Congress expressly made this a notice-based process, in contrast to statutory provisions requiring an approval-based process. Incumbent LECs are also subject to certain state laws requiring them to maintain adequate equipment and facilities.

24. It is important to distinguish between copper retirement and discontinuance of service. While it is possible that a network change, like a copper retirement, could ultimately lead to a discontinuance of service, that eventuality is governed by the Commission's section 214(a) discontinuance process. Otherwise, section 214(a)'s exception from its coverage for changes to a carrier's network would be rendered moot. The Commission's decision in the Triennial Review Order to include the copper retirement provisions in the network change notice rules rather than in the rules governing the discontinuance process underscores this distinction. Section 251(c)(5) reflects the decision by Congress that a notice-based network change process best serves the public by striking a balance between allowing incumbent LECs to make changes to their networks without undue regulatory burdens and giving competitive LECs time to account for those changes. We are empowered to ensure that our rules governing copper retirements and other network changes do not impede or delay these transformational and beneficial network changes through unreasonable and burdensome notice-related obligations. The actions we take today will accomplish this objective.

25. We are also unpersuaded by incumbent LEC assertions that the network change disclosure rules are outdated because they apply only to incumbent LECs despite the fact that incumbent LECs currently provide voice service to a relatively small percentage of households. The implementing statute specifically applies these notice requirements solely to incumbent LECs, and consistent with the Act we find they continue to be necessary to ensure the interoperability of our nation's communications networks.

1. Revising the General Network Change Disclosure Process a. Eliminating Prohibition on Incumbent LEC Disclosure of Information About Planned Network Changes Prior to Public Notice

26. Section 51.325(c) of our rules currently prohibits incumbent LECs from disclosing information about planned network changes to “separate affiliates, separated affiliates, or unaffiliated entities (including actual or potential competing service providers or competitors)” until public notice has been given under the applicable rules. Based on the record, we find that this prohibition on incumbent LECs' ability to freely communicate with other entities regarding their plans for upgrading their networks prior to filing the requisite public notice impedes the ability of these LECs to engage and coordinate with the parties that will ultimately be affected by those changes. Accordingly, we eliminate this provision.

27. A primary goal of the 1996 Act was to foster competition. When the Commission adopted § 51.325(c) in 1996, the Commission was concerned that incumbent LECs might try to give their long distance or equipment manufacturing affiliates a competitive advantage through early disclosure. Circumstances have substantially changed in the intervening two decades and incumbent LECs no longer have the near-monopoly they once did. To the contrary, intermodal competition is more prevalent than ever. Moreover, given this intermodal competition, long-distance service is no longer a separate market. Further, as noted by AT&T, incumbent LECs “do not have a significant presence in the market for manufacturing CPE.” As a result, commenters' concern that eliminating this prohibition may result in anti-competitive conduct by incumbent LECs is no longer as persuasive as it once was. We are similarly unpersuaded by ADT's concern that incumbent LECs may gain a competitive advantage with respect to services such as alarm monitoring. As with the manufacturing of CPE, there is significant intermodal competition in the provision of alarm monitoring services, including provision of such services over media other than copper.

28. The practical effect of § 51.325(c) today is to slow deployment of next-generation networks and withhold useful information by preventing incumbent LECs from discussing their network change plans with any party. For example, this prohibition has prevented incumbent LECs from sharing planned copper retirement information with wholesale and retail customers in response to customers' specific requests for information, and impeded incumbent LECs' ability to engage with landlords and tenants early in a copper retirement process to ensure timely access to the premises to deploy fiber prior to retiring existing copper facilities. We agree with commenters that argue that removing the prohibition on the free flow of information between the incumbent LEC and all potentially impacted entities will permit incumbent LECs to work with affected competitive LECs, government users, enterprise customers, and others at the appropriate time in the normal course of business dealings with such entities, and over a longer period of time to plan for eventual network changes. Giving incumbent LECs the ability to engage with these entities prior to providing public notice under our rules will be especially useful to mitigating concerns raised by certain commenters regarding the impact our revised copper retirement notice process might have on particular users.

29. We decline certain commenters' suggestions that if we eliminate § 51.325(c), we require incumbent LECs to provide notice of network changes to all interconnecting entities before providing public notice. Such a requirement would be unwieldy and unduly burdensome and it would effectively require public notice earlier than would otherwise be required by the rules. Moreover, such pre-public notice disclosures of potential changes to the incumbent LEC's network may well occur at a phase when the incumbent LEC's plans are not yet solidified and might still change. Requiring formal disclosure to interconnecting parties that will eventually be entitled to disclosure under the Commission's rules could result in unnecessary confusion or unnecessary work by and expense to interconnecting carriers should the incumbent LEC's plans change. This is the very reason the network change disclosure rules do not require public notice until the incumbent LEC's plans reach the make/buy point, a requirement that remains in place. To be clear, however, our rules do not negate the terms of privately negotiated contracts that may include provisions regarding notice of potential network changes. Moreover, by eliminating § 51.325(c), we enable parties to negotiate network change notification provisions that allow for notice well in advance of public notice and that best serve their individual needs in the service contracts they enter into with incumbent LECs.

b. Retaining Objection Procedures for Short-Term Network Change Notices

30. We conclude that we should retain the objection procedures currently applicable to short-term notices of network changes. Short-term network change notices are an exception to the general rule adopted in the Second Local Competition Order requiring notice of planned network changes at least six months before implementation of the planned changes. An objector can seek to have the waiting period for a short-term network change extended to no more than six months from the date the incumbent LEC first gave notice. Although the objection procedures have rarely been invoked, the possibility of an objection provides incentive for incumbent LECs to work cooperatively with competitive LECs and keep open lines of communication with them, thus avoiding potential delays. We are unpersuaded by USTelecom's concern that competing service providers might use the objection process to unwarrantedly delay a network change. The Commission made clear in the Second Local Competition Order that such efforts would not be tolerated and indeed could expose the objector to sanctions. We thus conclude that retaining the objection procedures applicable to short-term notices of planned network changes maintains an appropriate balance between the needs of incumbent and competitive LECs and is consistent with Commission precedent.

2. Expediting Copper Retirement

31. Today we eliminate or substantially scale back the copper retirement rules adopted by the Commission in 2015, because the record demonstrates that those rules have added cost and delay into the process with no apparent corresponding benefits. The record shows that these rules have delayed certain incumbent LECs' plans to deploy fiber and, in some instances, to even consider foregoing fiber deployment altogether. We therefore make these rule changes to ensure these delays and foregone next-generation network opportunities no longer occur on our account. In doing so, however, we continue to recognize the unique circumstances posed by the need to accommodate copper retirements in contrast to other types of network changes.

32. When the Commission first adopted its copper retirement rules fourteen years ago, fiber deployment was in its infancy and copper was the primary last-mile transmission medium for telecommunications services. In seeking to foster competition in adopting rules implementing the 1996 Act, the Commission signaled its goal was not to impose the associated regulatory burdens on incumbent LECs indefinitely. Rather, it intended to eventually ease those burdens once they became unnecessary. Permitting competitive LECs to continue to rely on unfettered access to incumbent LECs' copper facilities when incumbent LECs are rapidly trying to modernize such networks to both compete with newer fiber-based competitors and to bring innovative and superior services to the public frustrates rather than facilitates fiber deployment. Indeed, as early as 2003, the Commission recognized “that the substantial revenue opportunities posted by FTTH deployment help ameliorate many of the entry barriers presented by the costs and scale economies,” specifically noting then that “competitive LECs have demonstrated that they can self-deploy FTTH loops and are doing so at this time.” Thus, competitive LECs could not have been operating under the impression that they would be able to rely on incumbent LEC networks forever in the “race to build next generation networks” envisioned by the Commission.

33. In the intervening years, competitors have had the opportunity to explore and develop ways to compete in a world without copper. Likewise, consumers and enterprise customers have had the opportunity to learn about the transition from legacy networks comprised of copper to next-generation fiber networks. The “gradual transition” advocated by one commenter has been ongoing for many years now. Although this will continue to be a gradual, organic, carrier-driven process, we believe it is important to spur the process along rather than slow it down with unnecessary regulatory burdens. We will not impede the progress toward deployment of next-generation facilities for the many because of the reticence of an ever-shrinking few.

a. Retaining Distinctions Between Copper Retirement and Other Network Changes

34. At the outset, we retain the distinction between copper retirements and other types of network changes for purposes of section 251(c)(5) notice. On balance, the record supports the continued need for such a distinction. In adopting the network change disclosure rules following the 1996 Act, the Commission recognized that not all types of network changes present the same level of difficulty for interconnecting carriers. It thus adopted different requirements for long-term network changes, i.e., those that cannot be implemented in less than six months from the make/buy point, and short-term network changes, i.e., those that can be implemented in less than six months. The Commission subsequently recognized that copper retirement network changes have a potentially greater impact on interoperability than other network changes because they “affect[] the ability of competitive LECs to provide service.” Although competitors are increasingly relying on their own facilities to compete, for at least some competitive LECs that remains the case today.

35. We agree that competitive LECs are more familiar with accommodating copper retirements now than they were 14 years ago when the Commission first adopted its copper retirement rules; however, we are not persuaded that experience obviates the fact that copper retirements are more complicated and impactful than many other types of network changes. For example, where the copper retirement impacts competitive LECs providing Ethernet over Copper or purchasing TDM-based DS1s and DS3s, the affected competitive LECs often must migrate to other forms of last-mile access, change the service being offered and provide time for the retail customer to accommodate the change, or provide time for the retail customer to secure an alternative service arrangement. We thus disagree with incumbent LEC commenter assertions that copper retirements require no special treatment as compared to other types of network changes. As the Commission previously explained, competitors cannot be expected “to react immediately to network changes that the incumbent LEC may have spent months or more planning and implementing.”

36. The reforms we adopt today bring the copper retirement process closer in line with the more generally applicable network change disclosure process. However, because short-term network changes can be implemented within as little as ten days of the Commission's release of a public notice, eliminating the distinction between copper retirements and other types of network changes could have adverse effects on interconnected carriers that continue to rely on available copper facilities to serve their end-users. We therefore decline to eliminate the distinction altogether. The reforms discussed below reduce the burdens on incumbent LECs, achieving a balance between those minimal burdens and the benefits of adequate notice to interconnected carriers who rely on the incumbent LECs' networks.

b. Narrowing the Definition of Copper Retirement

37. De Facto Retirement. We revise the definition of copper retirement to eliminate the de facto retirement concept that was included in the amendments made to the rules in 2015. We agree with commenters that the de facto retirement provision has unreasonably increased incumbent LECs' burden with no corresponding benefit, and serves no purpose in the context of section 251(c)(5)'s notice requirement. The current rule requires that the incumbent LEC provide notice of copper retirement when it fails to “maintain copper loops, subloops, or the feeder portion of such loops or subloops that is the functional equivalent of removal or disabling.” Thus, by its very terms, a de facto retirement could have conceptually already occurred when notice would be required under the rule we eliminate. Unlike notice of a forthcoming change, there is no practical way to implement the requirement that an incumbent LEC provide notice of a de facto retirement, and therefore consumers receive no notice benefit from this concept being part of the definition of copper retirement. Further, loss of service is properly addressed in the context of the discontinuance approval process established by section 214(a) of the Act.

38. We do not agree with those commenters that argue that customers located in areas where there are no options other than copper will suffer if the Commission eliminates de facto retirement from the notice requirement. If an incumbent LEC has no plans to deploy fiber or other next-generation technology, it must maintain its copper networks, or it will have access to fewer customers. More fundamentally, we do not agree with commenters that argue that copper retirement notices are an important way for customers to learn about network deterioration or that eliminating de facto retirement from the notice requirement “will allow incumbent carriers to neglect their copper infrastructure.” If copper deterioration is causing service quality issues, notice that copper deterioration is the reason for the service quality problems provides no benefit to the customers. Moreover, incumbent LECs are free to resolve those issues by migrating the customer to fiber, as long as the nature of the service being provided to the customer remains the same.

39. We are similarly unpersuaded by arguments that incumbent LECs allow their copper networks to deteriorate in order to “push” their customers onto fiber. The Act gives carriers, not the Commission, the authority to design their networks and choose their own architecture. The Act directs that incumbent LECs need only go through the Commission's copper retirement notice process, absent a discontinuance of service that triggers the requirement to seek Commission approval under section 214(a). To the extent commenters are concerned that eliminating the de facto retirement provision could result in an inability to seek Commission redress should an incumbent LEC willfully or otherwise allow its network to degrade, a mandatory notice requirement with no accompanying remedy should give them little solace. Either way, eliminating this unnecessary notice requirement does not foreclose other avenues for relief. Incumbent LECs providing telecommunications services remain subject to section 214(a)'s discontinuance process requirements, and in some states, they remain subject to state-level service quality requirements.

40. Feeder. By contrast, we retain the feeder portion of the incumbent LECs' loops in the copper retirement definition because of the significant impact retirement of copper feeder can have on competitive LECs' abilities to continue to provide service to their end-user customers. We agree with commenters that recommend that an incumbent LEC seeking to retire the feeder portion of its copper-based network must comply with the copper retirement notice rules rather than the more generally applicable network change disclosure rules. The record demonstrates that the benefits to both interconnected competitive LECs and their respective end-user customers of providing notice under the copper retirement rules when an incumbent LEC seeks to retire the copper feeder portion of its loops significantly outweighs the additional burdens on the incumbent LEC of complying with the copper retirement notice process in such situations. It is not “mere theory” that an interconnecting carrier might need notice of an incumbent LEC's plan to retire copper feeder. The record indicates that there are interconnected carriers that rely on copper feeder to serve their end-users. If we eliminate feeder from the definition of copper retirement, interconnecting carriers entitled to “reasonable notice” under section 251(c)(5) might not receive sufficient notice to continue to provide services to their end-user customers or to enable those end-users to transition to another provider. Retaining feeder in the definition ensures that these interconnected carriers are provided notice of copper retirement in the same timeframes as interconnected carriers that rely on copper loops or sub-loops to serve their end-users. Moreover, we find our additional streamlining of the copper retirement notice process should address the primary concerns of commenters advocating for elimination of feeder from our copper retirement rules.

c. Streamlining the Copper Retirement Notice Process

41. Today we eliminate the changes made to the copper retirement rules adopted in 2015 and reinstate, with certain modifications, the rules applicable to copper retirements that existed prior to that time. We find broad support in the record for these changes that will ease the regulatory burdens on incumbent LECs in transitioning to next-generation networks, affording them greater flexibility and eliminating the delays and additional costs imposed by § 51.332's rigid requirements. We also find that these changes, along with incumbent LECs' greater freedom to engage potentially affected parties earlier in the planning process, will simultaneously accommodate the concerns of most commenters by affording sufficient time to accommodate planned changes and addressing parties' needs for adequate information and consumer protection.

42. At the outset, we disagree with commenters that assert that the record contains no evidence that alleviating the significant burdens on incumbent LECs imposed by the copper retirement rules adopted in 2015 will spur broadband deployment. The record shows that the burdens caused by delays in copper retirements resulting from expansive notice obligations can be quite significant, including costs associated with the ongoing need to maintain various parallel computer systems and retain dedicated engineering staff. Indeed, record evidence suggests savings of $45-$50 per home passed per year achieved by retiring copper facilities. According to Corning, this savings estimate breaks down as follows: First, by “[r]educing the copper footprint [the incumbent LEC] can save upwards of 80% of central office space,” which “equates to a savings of roughly $35 per home passed per year of real estate expense.” Second, “electrifying the copper network and equipment takes a significant amount of electricity to operate, estimated at $1.49 per home passed per year of electricity expense.” Finally, “there is a large amount of incremental maintenance for the copper network,” and “[i]n 2013, Verizon estimated that in areas where both FiOS and copper existed, they were spending more than $200 million annually on the copper network, or roughly $10 per home passed with both fiber and copper per year of maintenance expense.” Couple that with Verizon's statement that it has filed to retire copper facilities at 3.8 million locations, and it appears that Verizon's copper retirements alone may result in between $171 million and $190 million in cost savings that could be put to use in deploying next-generation networks. And expediting the copper retirement process could contribute to 26.7 million incremental premises being passed by fiber over a five-year period. Requiring that incumbent LECs forego these potential savings results in opportunity costs and creates a disincentive to broadband investment.

43. We disagree with arguments that the changes we adopt today to our copper retirement notice process “may make it easier for providers to shut down networks and services.” We start by noting that incumbent LECs, like their competitors, already have marketplace incentives to maintain service to customers. What is more, such arguments confuse the copper retirement notice process—which applies only when a carrier makes changes to its network—with the discontinuance process. If an incumbent LEC's copper retirement will result in a discontinuance of service, the carrier must still go through the process of obtaining Commission authorization. In that process, customers can still object to the proposed discontinuance and raise concerns regarding the adequacy of available alternative services, one of the five factors the Commission traditionally considers when evaluating discontinuance applications.

(i) Reducing Scope of Direct Notice Requirements

44. To facilitate the rapid transition to next-generation services, we eliminate unnecessary copper retirement notice requirements.

45. Eliminating notice to retail customers. Today we revise the copper retirement rules to eliminate the requirement of direct notice to retail customers adopted in 2015. Based on the record, we conclude that the potential benefits of direct notice of copper retirements touted in the 2015 Technology Transitions Order have not come to pass. Instead, there is evidence that notice of planned copper retirements, pursuant to § 51.332, has caused confusion and delay. Moreover, incumbent LECs have strong incentives to work closely with their retail customers in order to retain their business given the competition they face from competitive LECs, cable providers, and wireless providers. They do not require mandatory and prescriptive Commission-ordered notice to educate and inform their customers of network transitions from copper to fiber. Rather, these communications must necessarily occur for the incumbent LEC to continue providing the services to which its customers subscribe.

46. We are unpersuaded by commenter assertions that retail customers need us to mandate direct notice of planned copper retirements because of the impact these changes will have on the functionality of devices and services operating on the network. We recognize the reliance consumers place on the functioning of equipment that connect to incumbent LECs' legacy networks, such as fax machines, alarm systems, and health monitoring devices. And many enterprise customers, particularly utilities, continue to rely on TDM-based services today despite the existence and widespread availability of more innovative IP-based services. In both instances, however, commenters calling for continued direct notice of copper retirements wrongly focus on the underlying transmission medium, i.e., the copper network facilities, rather than on the technology of the service being provided by the incumbent LEC, i.e., whether it is TDM-based or IP-based. Should the copper retirement be accompanied by a transition to an IP or other technology-based service, only then would the carrier be potentially subject to our Section 214(a) discontinuance process rules. The record confirms that the equipment and devices about which commenters express concern generally continue to function over fiber facilities as long as that service remains TDM-based. This is the case in copper retirements absent other service changes, despite the confusion of many commenters who conflate copper retirement and service discontinuance. Indeed, incumbent LECs devote resources to ensure that the devices their residential customers use over their networks continue to work, including TTY devices. And while the lines serving a customer's home will no longer carry power, that is remedied by use of a back-up power unit, a matter the Commission has previously addressed. Indeed, certain carriers, such as Verizon, provide back-up power units to their customers free of charge in connection with copper retirements without a Commission mandate to do so.

47. We recognize that copper-to-fiber transitions can be more complicated and time-consuming for certain non-residential retail customers, including utilities and federal agency customers. However, the record shows that in practice, § 51.332's requirement that incumbent LECs provide notice on a reticulated schedule to non-residential retail customers imposes more significant burdens and delay on incumbent LECs than the Commission anticipated when it adopted the 2015 Technology Transitions Order. Indeed, in adopting that order, the Commission failed to account for the important fact that large enterprise customers with complex telecommunications requirements generally enter into long-term contracts with their telecommunications providers, thus affording those customers the ability to negotiate service-related protections from changes that might abruptly and negatively impact their communications capabilities. This is an especially significant oversight given the fierce competition among incumbent LECs, large cable companies, competitive LECs, and numerous smaller facilities-based service providers for these non-residential retail customers. Incumbent LECs have strong incentives to work with these enterprise customers to avoid service disruptions, and we reiterate that our rules do not override the terms of these privately negotiated agreements, including any notice provisions related to network changes generally and copper retirements specifically, contained within those agreements. Accordingly, we disagree with commenters that assert that enterprise customers, in particular utilities as well as federal agencies such as the FAA, will be harmed and public safety will be put at risk if they do not receive direct notice of copper retirements. Suggestions that incumbent LECs would risk harming public safety or fail to work cooperatively and diligently to accommodate critical needs of their public-safety related customers absent a mandatory Commission notice obligation defies both reason and experience.

48. We expect and encourage incumbent LECs to continue to collaborate with their customers, especially utilities and public safety and other government customers, to ensure that they are given sufficient time to accommodate the transition to new network facilities such that key functionalities are not lost during this period of change, and we specifically rely on incumbent LEC commenters that stress the incentives they have to work with their retail customers. And because we are eliminating the rule prohibiting incumbent LECs from discussing planned network changes in advance of public notice, incumbent LECs can now respond to requests for information from these customers about planned network changes at any time. By eliminating this prohibition, we give incumbent LECs the freedom to engage their wholesale and retail customers far earlier in the planning process, thus allowing those customers, in turn, to begin planning and budgeting for the coming changes.

49. Similarly, with respect to residential retail customers, we do not believe that Commission-mandated direct notice of planned copper retirements serves any practical purpose, nor has it helped reduce confusion, despite the relatively seamless nature of a copper-to-fiber transition. We anticipate that residential consumers will continue to be well-informed about copper retirements impacting their service absent Commission-imposed notice obligations. Indeed, incumbent LECs necessarily must reach out to these customers and communicate with them about their specific planned copper retirement to work with them, individually, to access their homes in order to accomplish their migration to the new fiber-based network. This migration simply cannot occur absent these communications. As a result, commenters are mistaken to assert that consumers need Commission-mandated direct notice of planned copper retirements to be fully informed.

50. The record shows that the three largest incumbent LECs that together serve approximately 74% of households purchasing legacy voice service from incumbent LECs acknowledge and embrace their role in educating consumers of the effect of impending changes in the network over which their service is provided, not just of the benefits of advanced, IP-based services. And the record suggests that States that wish to do so are well positioned to engage in consumer education and outreach efforts. Indeed, incumbent LECs are already collaborating with state commissions in certain jurisdictions to educate consumers and minimize confusion about copper retirements. Such efforts are more likely to reduce consumer confusion than governmentally-mandated notices and timeframes. While we acknowledge here USTelecom's suggestion of a “concerted, federal government-wide effort to ensure that Executive Branch policies do not prolong the federal government's reliance on legacy services,” such action is outside the scope of the Commission's authority.

51. Finally, section 251(c)(5) of the Act, embodied in the market-opening local competition provisions, sets forth the duties of telecommunications carriers vis-à-vis other telecommunications carriers. It specifically speaks to the need to provide information to allow “transmission and routing” and ongoing “interoperability” with the incumbent LECs' networks, matters in which retail customers are not engaged. The Commission implicitly and correctly recognized this limitation when adopting the first network change disclosure rules in the Second Local Competition Order, concluding that notice of sufficient information to deter anticompetitive behavior was necessary and that “incumbent LECs should give competing service providers complete information about network design, technical standards and planned changes to the network.”

52. Limiting notice requirement for interconnecting entities to interconnecting telephone exchange service providers. We modify the copper retirement direct notice requirement for providing notice to interconnecting entities by limiting that requirement to providing notice to telephone exchange service providers that directly interconnect with the incumbent LEC's network. We also afford incumbent LECs some flexibility in the manner in which they provide notice of planned copper retirements to entitled recipients by permitting them to provide notice via web posting to the extent the affected interconnected carriers have agreed to receive notice in this manner.

53. In eliminating the requirement that direct notice be provided to all entities that directly interconnect with the incumbent LEC's network, we return to the pre-2015 requirement that such notice be provided only to directly interconnecting telephone exchange service providers. We agree with commenters that argue that requiring direct notice to all entities that interconnect with the incumbent LEC's network is overbroad, encompassing multiple interconnected entities that are not affected by copper retirements. Requiring that direct notice be provided only to telephone exchange service providers that directly interconnect with the incumbent LEC's network achieves an appropriate balance between the needs of interconnecting carriers that purchase either copper inputs or services provisioned over copper facilities and the need to minimize regulatory burdens on incumbent LECs that affect their ability or incentive to deploy next-generation facilities.

54. To further reduce regulatory burdens and modernize our process, we allow incumbent LECs to post notices of copper retirements on their website in lieu of direct notice to interconnecting telephone exchange service providers where the incumbent LEC can certify that the interconnecting telephone exchange service provider agreed to that method of notice. We agree that for incumbent LECs who maintain web pages on which they post network change notices, providing notice via web posting is efficient and is reasonably calculated to provide expeditious notice to affected interconnecting carriers. This change aligns with our process for non-short-term network changes.

55. Regardless of which method of notice the incumbent LEC chooses, consistent with the pre-2015 requirements, as well as the current short-term network change requirements, incumbent LECs must provide notice to interconnecting telephone exchange service providers at least five business days in advance of filing with the Commission. Further, consistent with the pre-2015 requirements, the incumbent LEC must include with its filing with the Commission a certificate of service to demonstrate that it has provided the required direct notice to interconnecting telephone exchange service providers. This certificate of service effectively replaces the certification previously required by the 2015 Technology Transitions Order, which we eliminate as moot. As a result, AT&T's request that the Commission pare down the various certifications required by the network change disclosure rules, is also rendered moot.

56. Eliminating unnecessary governmental notices. We eliminate the requirement that incumbent LECs provide direct notice of planned copper retirements to state commissions, governors, Tribal Nations, and Department of Defense. When the Commission adopted these direct notice requirements in 2015, it was done to synchronize the notice requirements for copper retirements with those for section 214(a) discontinuances. However, discontinuances present a very different set of concerns because of the potential for loss of service and/or functionality, thereby justifying greater notice than mere changes to the facilities over which an incumbent LEC provides its services. A number of commenters have stated that providing copper retirement notices to governmental entities beyond the Commission is burdensome.

57. States and Tribal Nations that have regulatory authority over copper and wish to mandate notice are able to do so without the need for an across-the-board Commission rule. We thus disagree with NARUC that eliminating the requirement of direct notice to government entities might “handicap[] State options to address real issues that can arise in the wake of a natural disaster and in the wake of technology transitions.” That in some cases such entities lack regulatory authority over or take a deregulatory approach to network changes shows that a Commission mandate is in many cases unnecessary and imposes a burden for no reason. With regard to Tribal Nations, Verizon asserts that incumbent LECs lack sufficient information to determine whether a copper retirement affects areas within a particular Tribal nation's boundaries. We further find that requiring direct notice of planned copper retirements to the Department of Defense serves no regulatory purpose. The Department of Defense has no regulatory or consumer protection role in the context of copper retirements. Moreover, copper retirements do not themselves present an increased cybersecurity risk. In other words, we disavow the Commission's prior finding that keeping the Department of Defense informed of planned copper retirements was warranted because of “the increased cybersecurity risks posed by IP-based networks.” A transition from copper to fiber does not necessitate a transition to IP-based networks and does not change a network's cybersecurity risk. NTIA, however, urges us to retain this notice requirement because the “Department of Defense is a major and critical user of telecommunications services.” Although true, it does not explain why the Department of Defense should be notified of copper retirements that affect other users. Moreover, we find a notice requirement to keep the Department of Defense apprised as a customer is unnecessary because we are lifting barriers that currently prevent carriers from discussing network changes with their customers, and the record shows that carriers have adequate incentives to negotiate contract provisions addressing such changes with government customers.

58. Eliminating additional content requirement added in 2015. By eliminating the section of the rule requiring direct notice of copper retirement to retail customers, we are also eliminating the requirement that incumbent LECs include in their copper retirement notices “a description of any changes in prices, terms, or conditions that will accompany the planned changes.” No commenters addressed this specific issue in support of or in opposition to the potential elimination of § 51.332. Consistent with the other reduced notice requirements we adopt herein, we find this prescriptive content requirement has no bearing on the type of notice the Commission correctly recognized section 251(c)(5) was intended to provide, i.e., changes in “network design, technical standards and planned changes to the network” when first implementing this provision. As such, we conclude that it imposes an unnecessary regulatory obligation on incumbent LECs beyond the scope of the statutorily mandated notice process.

59. Rejecting requests to further streamline notice requirements. We reject requests to further streamline our copper retirement notice requirements. First, we decline to do away altogether with the direct notice requirement, as some in the record suggest. Because an incumbent LEC's copper retirement could significantly impact an interconnected competitive carrier's ability to continue providing certain services to its customers, it remains an important requirement. Requiring every competitive LEC to monitor every notice of network change published by the Commission, as would be necessary absent a direct notice requirement, would be unreasonable for these service providers. Moreover, because we are shortening the notice period for copper retirements today, continuing to require direct notice strikes an appropriate balance between facilitating incumbent LEC network changes and the needs of affected interconnecting carriers. Ensuring that interconnecting service providers will continue to receive copper retirement notices directly from incumbent LECs will afford those entities as much time as possible to convey necessary information to their customers who will be impacted by the incumbent's planned copper retirement.

60. Similarly, we reject Frontier's suggestion that we exempt from our copper retirement rules those copper retirements occurring in areas where the Commission is funding broadband deployment, e.g., in areas receiving Connect America Fund support. The fact that broadband will be deployed in such areas over time does not obviate the benefit of receiving timely notice of impending copper retirements to the parties entitled to such notice under our rules. Recipients of CAF Phase II model-based support have to deploy broadband to 40% of supported locations by the end of 2017, increasing by 20% each year until they reach 100% by the end of 2020. As a result, to the extent copper retirement rules require notice, those notifications are likely to be spread over time.

(ii) Reducing Copper Retirement Waiting Periods

61. Reducing the standard waiting period for copper retirements from 180 days to 90 days after the Commission issues its public notice. We reduce the generally applicable 180-day waiting period for copper retirements to a 90-day waiting period, which was the waiting period prior to the Commission's 2015 amendments to the copper retirement rules. We find that a 90-day waiting period after the Commission releases a public notice of the filing meets the needs of interconnecting carriers and other interested entities while minimizing the risk of undue delay for incumbent LECs. In reinstating that provision in § 51.333(b), we revise the language both to more accurately reflect that the copper retirement process, like all network changes, is a notice-based process and to make the treatment of copper retirement notices consistent with that of short-term network change notices in the same rule.

62. The record demonstrates that the current, longer waiting period has already slowed down affected incumbent LEC deployment plans, and caused uncertainty for at least one carrier's planned broadband buildout. The return to the 90-day waiting period is particularly appropriate in light of the other changes we adopt today that reduce the need for a longer waiting period, including allowing incumbent LECs to share information about planned network changes prior to providing the requisite public notice, and reinstating the previously applicable objection procedures, actions that address competitors' concerns that 90 days is not sufficient time to accommodate copper retirements involving large numbers of circuits. As a result, the 90-day notice period we adopt today best achieves the balance of “adequate, but not excessive,” notice.

63. The copper to fiber transition has been ongoing for the past fourteen years. The timing and rates of transitions or the decision to transition in the first instance vary on a carrier-by-carrier, and even on a case-by-case basis for each individual incumbent LEC. While we recognize that copper loops are not obsolete, competitive LECs have had ample notice that many legacy copper networks are likely to be retired at some point in the not-so-distant future. It is in this context that we must evaluate commenters' claims that they continue to need extensive notice of copper retirements so that they can, if necessary, deploy their own fiber. Longer periods or more open-ended structures requested by some commenters would pose the risk of holding incumbent LEC networks hostage indefinitely, a result explicitly sought by at least one commenter. Such a result would run counter to the expressed goals of this proceeding to accelerate next-generation network deployment, and in any case longer periods are unwarranted.

64. Certain commenters refer to the reduced 90-day waiting period as a “speeded-up time frame.” To the contrary, we simply return to the timeframes that applied for more than a decade, before the Commission adopted the 2015 Technology Transitions Order. By contrast, the extended notice periods sought by competitive LEC commenters constitute the very “overextended advance notification intervals” the Commission was concerned might needlessly “delay the introduction of new services, provide the interconnecting carrier with an unfair competitive advantage, or slow the pace of technical innovation.”

65. We decline to adopt certain incumbent LEC requests that the 90-day waiting period begin to run when the incumbent LEC files its copper retirement notice or, in the alternative, to require that we release a public notice within a specified period of time. Incumbent LEC commenters assert that delays in our processing of filings can result in delays in implementation. However, commenters do not point to any specific instance in which a planned copper retirement had to be delayed due to the timing of our release of the relevant public notice. Moreover, having the waiting period run from the date we release a public notice of the filing, as has been the case for more than two decades, affords Commission staff the necessary opportunity to review filings for mistakes and/or non-compliance with the rules. Indeed, Commission staff routinely contacts filers to clarify or correct information contained in filings or to add required information that is missing, and this ability is necessary to ensure the integrity of the filing process. Otherwise, incumbent LEC notices could fail to contain the required information at the time of filing, depriving notice recipients of information they need to accommodate the network change. Incumbent LEC commenters have not specified any reason why, or demonstrated any harm from, timely release of a copper retirement public notice based on the incumbent LEC's own planned implementation date as specified in the notice.

66. Adopting expedited 15-day waiting period where no customers are served over affected copper. We further amend our rules to provide for a 15-day waiting period after Commission release of its public notice of an incumbent LEC's filing for copper retirements where the affected copper facilities are no longer being used to provide service. As AT&T explains in its comments, this streamlined notice process, which received support from incumbent and competitive LECs alike, is appropriate because it will not impact any interconnecting carriers or require the transition of any services.

(iii) Reinstating Objection Procedures for Copper Retirement Notices

67. Because the rules we adopt today reduce the waiting period from 180 days to 90 days, we reinstate the objection procedures previously applicable to copper retirement notices prior to the 2015 Technology Transitions Order and currently applicable to short-term network change notices. We therefore find it unnecessary to retain the good faith communication requirement adopted in 2015. In the rare instances in which a competitor may need additional information or be unable to make the accommodations necessary to continue to provide service to its customers within the 90 day notice timeframe, the objection procedure will provide a mechanism to provide more time to address concerns. Before the 2015 changes went into effect, carriers infrequently invoked the objection procedures, but reinstating the procedure affords some measure of protection to competing providers facing extenuating circumstances. The objection procedure further serves as an incentive for an incumbent LEC to work closely with competitive LECs to ensure the competitive LECs have the information they need to accommodate the planned copper retirement within the 90-day period, a role that was filled by the good faith communication requirement when the Commission eliminated the objection procedures applicable to copper retirement notices in 2015. Moreover, these procedures allow objections only to delay the planned retirement up to a total of six months from the initial public notice under our rules. In no case, however, do they prevent the retirement from occurring or extend the timeframe beyond the six-month period.

68. We are unpersuaded by Windstream's assertion that it is necessary to retain the requirement that incumbent LECs work in good faith with interconnecting entities to provide information necessary to assist them in accommodating planned copper retirements without disruption of service to their customers. A competitive LEC that feels an incumbent LEC is engaging in anticompetitive behavior by not providing necessary information has two avenues of recourse. First, the objection procedures we reinstate today provide a mechanism for competitive LECs to seek any additional information they need to allow them to accommodate the planned transition. Second, the competitive LEC may assert a claim under section 201(b) of the Act that the incumbent LEC is engaging in an unjust or unreasonable practice.

69. Finally, we are unpersuaded by unsubstantiated incumbent LEC concerns that competitive LECs might use the objection procedures to engage in anti-competitive behavior. Indeed, the Commission is unaware of, and incumbent LEC commenters do not point to, any such instances occurring under the pre-2015 copper retirement objection procedure rules, or the current short-term network change rules, which have always contained an objection period. To the extent this occurs in the future, we again make it clear that we will not tolerate such efforts and that objections proffered for anticompetitive purposes can expose the objector to sanctions. We thus conclude that reinstating the objection procedures previously applicable to copper retirement notices maintains an appropriate balance between the needs of incumbent and competitive LECs and is consistent with Commission precedent.

(iv) Reinstating “Deemed Denied” Objection Resolution for Copper Retirements

70. We also reinstate the objection resolution procedures applicable to copper retirements that were eliminated by the 2015 Technology Transitions Order. Absent Commission action, an objection to a copper retirement notice will be deemed denied ninety days after the Commission releases its public notice of the incumbent LEC's filing. By reinstating this provision, we further streamline the copper retirement process and obviate the concerns expressed by some commenters that competitors might use the objection procedures for anti-competitive reasons.

d. Adopting Streamlined Copper Retirement Notice Procedures for Force Majeure Events

71. As recent events have shown, it is vital that we do everything we can to facilitate rapid restoration of communications networks in the face of natural disasters and other unforeseen events. We recognize that when networks are damaged or destroyed by devastating force majeure events such as Hurricanes Harvey, Irma, and Maria, the top priority for service providers must be to restore their networks and service to consumers as quickly as possible rather than jump through regulatory hoops. Regulatory processes that could make sense in normal times may cause unnecessary delay when exigent circumstances arise. To provide incumbent LECs the flexibility to restore service as quickly as possible, today we streamline our copper retirement procedures for cases of natural disasters or other unforeseen events. To be clear, we revise only our network change notification rules that govern how incumbent LECs notify other carriers of copper retirements, and we do not revisit our existing procedures for emergency discontinuances of service.

72. The record shows that as incumbent and competitive LECs recognize, incumbent LECs need the flexibility to restore service as quickly as possible in the case of unforeseen events and should not be rendered non-compliant by actions beyond their control. For example, when a natural disaster such as a hurricane damages an incumbent LEC's facilities, or a copper line is inadvertently cut during a road work project, an incumbent LEC must, first and foremost, take whatever action is necessary to restore impacted service as quickly as possible. We find that it makes more sense to allow the prompt installation of replacement facilities than to require the incumbent LEC to first repair the damaged copper lines, if the incumbent LEC determines that is the best course of action, only to subsequently expend additional resources to then retire and replace those facilities later. The same logic applies when state or municipal authorities notify an incumbent LEC that due to an impending project, the incumbent LEC must move its copper lines within a shorter period of time than might allow the carrier to comply with the advance notice and waiting periods required by the Commission's rules.

73. With respect to force majeure events, this new provision applicable to copper retirements codifies streamlined procedures already available to certain incumbent LECs pursuant to a set of waiver orders, the first of which was adopted in the wake of Hurricane Katrina. By codifying these waivers for copper retirements and extending them to all incumbent LECs alike, we adopt well-tested requirements, provide greater regulatory certainty, and promote competitive neutrality among incumbent LECs.

74. Turning to the language of the rule provision we adopt, we specifically revise the rules governing copper retirement to (i) exempt incumbent LECs from advance notice and waiting period requirements for copper retirements that are required as a direct result of force majeure events such as the “emergencies” identified in § 79.2(a)(2) of our rules (other than school closings, bus schedule changes, and weather warnings or watches), as well as terrorist attacks, and (ii) require that an incumbent LEC give notice of a copper retirement resulting from a municipal mandate or third-party damage or destruction to copper lines as soon as practicable, and permit a reduced waiting period commensurate with the amount of notice provided to the incumbent LEC by the municipal authority. Political or economic events (e.g., Commission action, a market crash) also will not qualify as force majeure events for purposes of this rule.

75. Under the rules we adopt today, in the case of a force majeure event for which an incumbent LEC invokes its disaster recovery plan, the incumbent LEC will be exempted during the period when the disaster recovery plan is invoked, for up to 180 days, from all advance notice and waiting period requirements associated with copper retirements that are a direct result of damage to the incumbent LEC's network infrastructure caused by the force majeure event. Certain carriers undertook disaster response planning in the wake of Hurricane Katrina and in response to the Administration's expressed hope for greater national preparedness. The term “disaster recovery plan” as used here is intended to refer to a disaster response plan developed by an incumbent LEC for the purpose of responding to a force majeure event. We find that in the event of a disaster, requiring compliance with these rules would impede restoration efforts and delay recovery. However, during the exemption period, as soon as practicable after the force majeure event occurs and the disaster recovery plan is invoked, the incumbent LEC must comply with § 51.325(a)'s public notice requirement and include in such public notice the date on which the carrier invoked its disaster recovery plan. It must also communicate with other interconnected telephone exchange service providers to ensure that such carriers are aware of any changes being made to the incumbent LEC's networks that may impact those carriers' operations, as soon as practicable. No further notice requirements apply.

76. Should an incumbent LEC require relief longer than 180 days after the disaster recovery plan is invoked, the incumbent LEC must request further relief authority from the Commission. Any such request must be accompanied by a status report describing the incumbent LEC's progress and providing an estimate of when the incumbent LEC expects to be able to resume compliance with copper retirement disclosure requirements. In the event of circumstances triggered by third parties, such as a municipal mandate or inadvertent third party cuts to the incumbent LEC's copper lines, the incumbent LEC's direct and public notice must comply in all respects with the copper retirement notice rules, except that the notice must: (1) Incorporate a reduced waiting period commensurate with the specific circumstances at issue; (2) provide an explanation of the particular circumstances; and (3) explain how the incumbent LEC intends to minimize the impact of the reduced waiting period on interconnected carriers.

77. In the event that unforeseen circumstances arise warranting relief that falls outside of the force majeure rules we adopt, the Wireline Competition Bureau has delegated authority to address waiver requests. However, we reject CWA's argument that the Commission should proceed solely via waiver in this context. The waiver process is slower and less predictable than a rule, which is especially problematic when carriers need to make quick decisions in exigent circumstances.

78. Finally, we disagree with CALTEL that this issue requires further comment before we adopt this limited exemption. As discussed above, the limited force majeure exemption simply codifies and makes uniform across carriers the waivers that have been available to certain incumbent LECs since 2005. We are unaware of any instances in which carriers have sought to invoke the waiver provisions in inappropriately broad circumstances. We are also unaware of any instances in which: (1) Network change notices filed after an incumbent LEC has invoked its disaster recovery plan has caused confusion among interconnecting carriers, or (2) the incumbent LEC has taken longer than 180 days to implement the necessary repairs or network changes. Moreover, the Commission staff reviews all network change notices and will help guard against incumbent LECs invoking this exemption improperly.

e. Updating Filing Titles Applicable to Copper Retirements

79. We update the titles available to incumbent LECs for use in labeling their copper retirement filings. Section 51.329(c)(1) sets forth titles that incumbent LECs must use to label their network change disclosure filings. The Commission added the titles applicable to copper retirement filings in 2016 “to alleviate potential confusion.” Those newly-added titles specifically reference § 51.332, which we eliminate today. Because we add the copper retirement notice requirements back into § 51.333, where they originally resided, we revise the copper retirement-related titles set forth in § 51.329(c)(1) to correctly refer to § 51.333.

C. Section 214(a) Discontinuance Process

80. Today we take several important steps to eliminate unnecessary regulatory process encumbrances when carriers decide to cease offering legacy services that are rapidly and abundantly being replaced with more innovative alternatives. Section 214(a) requires carriers to obtain authorization from the Commission before discontinuing, reducing, or impairing service to a community or part of a community. As a matter of convenience, unless otherwise noted this item uses the term “discontinue” or “discontinuance” as a shorthand for the statutory language “discontinue, reduce, or impair.” To be clear, section 214(a)'s discontinuance requirements apply solely to telecommunications services, and to interconnected VoIP service to which the Commission has extended section 214(a)'s discontinuance requirements. Section 214(a) discontinuance requirements would not apply where the Commission forbears from application of these rules. These requirements do not apply to any other services a carrier may offer.

81. The reforms we adopt reflect the reality of today's marketplace. As USTelecom and other commenters in this proceeding observe, demand for the kinds of low-speed services that carriers generally provide over legacy networks is rapidly decreasing, as consumers move towards modern, competing alternatives. As of June 2016, interconnected VoIP lines accounted for nearly half of all retail voice telephone service connections in the United States. Section 9.3 of our rules defines “interconnected VoIP.” Non-incumbent LECs operate more than three quarters of these approximately 60 million interconnected VoIP lines. And mobile voice service subscriptions now outnumber end-user switched access lines in service by more than five-to-one. This gap is widening. As the Wireline Competition Bureau (Bureau) recently found, between 2013 and 2016, “interconnected VoIP subscriptions increased at a compound annual growth rate of 10%, while mobile voice subscriptions increased at a compound annual growth rate of 3%, and retail switched access lines declined at 11% per year.” Similar trends are affecting legacy low-speed data services, which have largely been abandoned by consumers. Our data show that between December 2014 and June 2016 the proportion of all fixed broadband consumer connections with a download speed between 200 Kbps and 1.544 Mbps has fallen from 6 percent to 3 percent.

82. These developments drive our efforts to streamline the section 214(a) discontinuance process for legacy services. Section 214 directs the Commission to ensure that a loss of service does not harm the public convenience or necessity. In determining whether a discontinuance will harm the public interest, the Commission has traditionally utilized a five-factor balancing test to analyze: (1) The financial impact on the common carrier of continuing to provide the service; (2) the need for the service in general; (3) the need for the particular facilities in question; (4) increased charges for alternative services; and (5) the existence, availability, and adequacy of alternatives. Increasing competition and deployment of higher-speed next-generation services allow most consumers to purchase services that are superior to legacy services. As a number of commenters note, these developments have greatly reduced the risk of harm to consumers stemming from the discontinuance of legacy services.

83. The record also makes clear that the Commission's current section 214(a) discontinuance rules impose needless costs and delay on carriers that wish to transition from legacy services to next-generation, IP-based infrastructure and services. Even relatively short delays or periods of unpredictability can, in the aggregate, create significant hurdles for providers who seek to upgrade hundreds or thousands of lines across their service territory. As Verizon explains, excessive restrictions on the discontinuance of legacy services harm both consumers and competition alike “as they delay the ability of providers to shift resources from legacy voice services to the more modern offerings that consumers demand.” For example, Verizon estimates that that “the necessary equipment to provide a single fiber based DS0 equivalent at a customer location can cost more than $30,000” and observes that “[p]roviders who are unable to discontinue these services efficiently would be faced with the cost of maintaining them over fiber should they choose to retire copper, which could divert resources that could be used for newer services.” For these reasons, as described below, we streamline and expedite our processes for section 214 discontinuance applications for a variety of legacy services.

1. Expediting Applications That “Grandfather” Low-Speed Legacy Services for Existing Customers

84. First, we streamline the approval process for discontinuance applications to grandfather low-speed (i.e., below 1.544 Mbps) legacy services. “Grandfathering” a service under section 214 refers to a request by a carrier for authorization to stop accepting new customers for a service while maintaining that service to existing customers. Throughout this section we use the terms “grandfathering,” “grandfather,” and “grandfathered” interchangeably to refer to this type of section 214(a) application. Specifically, we adopt a uniform reduced public comment period of 10 days and an automatic grant period of 25 days for all carriers seeking to grandfather legacy low-speed services for existing customers. The record supports our conclusion that streamlined processing of these applications will remove unnecessary regulatory delay for carriers seeking to discontinue legacy services with no harmful impact to existing customers.

85. Streamlined Comment and Auto-Grant Period. There is broad support in the record for reducing the processing period for applications to grandfather low-speed legacy services to a 10-day comment period and a 25 day auto-grant period. The Commission's rules provide for a 30 day comment period and a 60 day auto-grant period for service discontinuance applications filed by dominant carriers. For non-dominant carrier applications, comments are due within 15 days of the release of a public notice announcing the filing, and there is a 30 day auto-grant period. Commenters urge the Commission to make the discontinuance process easier for carriers seeking to replace their legacy services with next-generation services, especially to the extent that such discontinuances do not impact those using the service, as is the case with grandfathering.

86. The record demonstrates that longer processing timelines for grandfathering applications are unnecessary to protect consumers from potential harm stemming from discontinuances, and that our current discontinuance rules may unnecessarily impede the deployment of advanced broadband networks by imposing costs on service providers who seek to upgrade legacy infrastructure. Our section 214 discontinuance provisions are intended to protect the public by ensuring that consumers are not harmed by loss of service as a result of a discontinuance, and we will normally authorize a discontinuance unless it is shown that affected customers would be unable to receive a reasonable substitute service. However, as numerous commenters observe, national marketplace trends show that businesses and consumers alike are moving away from legacy services and toward modern alternatives. In both the residential and enterprise services marketplace, incumbent LECs now face widespread competition from numerous intermodal competitors offering services that compete with legacy services. These competitive forces have made substitute services readily available to the majority of consumers, mitigating any potential harm that might result from legacy services being grandfathered.

87. The record also makes clear that the section 214(a) discontinuance rules impose costs on carriers that wish to transition from legacy services to next-generation infrastructure, slowing the deployment of advanced services. As Verizon explains, processing times for 214(a) discontinuances “can delay services upgrades considerably.” Similarly, ITIF observes, that “[a]llowing faster approval of exit applications will speed the transition away from legacy services and towards next generation IP-based networks.” We find that affording carriers a more rapid glide path to transition away from legacy services they no longer seek to offer will reduce costs and promote the availability of innovative new services that benefit the public. By balancing the needs of consumers and carriers to optimize the deployment of new network technologies, these common-sense reforms help us better fulfill our section 214(a) statutory obligations.

88. We disagree with commenters that argue that the reduced comment and auto-grant periods will provide insufficient opportunity for public comment, or will otherwise prevent the Commission from fulfilling its statutory obligation to ensure that discontinuances do not harm the public interest. One commenter goes so far as to argue that grandfathering applications in general run afoul of Commission precedent because the fundamentals of common carriage dictate that telecommunications services must be offered to all comers. On the contrary, the Act affords the Commission broad flexibility in administering the section 214 discontinuance process to serve the public interest, and the Commission has long considered applications to grandfather services pursuant to section 214(a) or permitted carriers to grandfather certain service offerings in their FCC tariffs. Relatively few customers remain on legacy services, and because existing customers will be grandfathered under this section of our rules, they are unlikely to be harmed by these new processes. Moreover, a 10-day comment period will permit affected customers sufficient time to raise any applicable concerns with the Commission. Finally, nothing in the rule we adopt today changes a carrier's obligations to directly notify its customers of its plans to grandfather a service at, or before, the time it files its grandfathering application with the Commission. Thus, to the extent customers have concerns about the grandfathering application, they will be able to present concerns both during the 10-day comment period and prior to that period while the Commission's release of the public notice is pending. Similarly, we conclude that a 25-day auto-grant period will provide the Commission with ample time to evaluate any objections to the grandfathering application, and, if necessary, remove the application from streamlined treatment to conduct a more searching review of the application or to give the carrier and objecting party more time to resolve its issues.

89. Our reform is limited in scope. Nothing in the reduced processing timeframes we adopt today alters our obligation under section 214(a) to ensure that discontinuances, including those which occur when a service is grandfathered, do not run contrary to the “public convenience and necessity.” These streamlining measures do not in any way change the methodology we use to conduct our public interest evaluation or the criteria upon which it is based. We continue to apply our traditional five-factor balancing test to all section 214 discontinuance applications, including the specific grandfathered applications at issue here, regardless of which review timeline applies. If a grandfathering application subject to these new rules raises substantial questions, Bureau staff may remove it from streamlined processing just as it can under our prior approval timeframes.

90. We reject the proposals of Windstream and Ad Hoc Telecom Users Committee to prescribe specific terms and conditions carriers must include in their grandfathering plans. Similarly, we decline to adopt specific requirements unique to grandfathered services for government customers as sought by NTIA for the same reasons we discuss in paras. 106-07, infra. We intend to streamline processing, not impose delay and complexity by interfering with a carrier's specific business plans or how it intends to continue serving its existing customers. As AT&T notes, carriers may have limited ability to provide legacy services that are being phased out, and in any event, requiring carriers to allow moves, additions, and/or changes to grandfathered services would “force carriers to invest resources in outdated technology rather than investing in deployment of next-generation services,” which runs contrary to the purpose of the reforms we adopt today. To the extent affected customers believe the terms of a carriers' proposed grandfathering application raises concerns, customers can raise these concerns during the public comment period.

91. Uniform Treatment for Dominant and Non-Dominant Carriers. Our section 214 discontinuance rules have traditionally applied different comment and automatic grant periods to dominant and non-dominant carriers. However, in light of the technological and competitive dynamics of today's modern communications landscape, we find it is unnecessary to maintain a distinction between dominant and non-dominant carriers in the context of section 214 applications to grandfather low speed legacy services.

92. Eligible Low-Speed Legacy Services. We make the streamlined approval process we adopt available to all carriers seeking to grandfather any voice and data services at speeds below 1.544 Mbps. We recognize that legacy services, in general, constitute numerous services at speeds equal to or greater than 1.544 Mbps and over technologies other than TDM, some of which could be characterized as low-speed. Nevertheless, solely for purposes of the rules we adopt herein today, we apply our streamlined criteria only to those low-speed legacy services lower than a DS1 speed as specified in the Wireline Infrastructure NPRM. As the record indicates, demand for these services is falling as consumers migrate to more advanced services that offer greater speed and functionality or to competitive alternatives such as IP or wireless. We find broad record support for including both voice and data services meeting our speed threshold. Indeed some commenters suggest substantially broadening the scope of services covered by these reduced timeframes to include all grandfathered services or all grandfathered legacy services, regardless of speed. We decline to extend our streamlined grandfathering provisions to additional services or speed thresholds at this time. We find that limiting our streamlined-treatment to legacy voice and data services below 1.544 Mbps strikes the appropriate balance to provide relief to carriers who wish to transition away from the provision of legacy services for which there is rapidly decreasing demand, while at the same time ensuring that potential consumers of these services have readily available alternatives.

2. Expediting Applications To Discontinue Previously Grandfathered Legacy Data Services

93. Second, we streamline the discontinuance process for applications seeking authorization to discontinue legacy data services that have previously been grandfathered for a period of at least 180 days. We define legacy data services for the purpose of these new rules as data services below 1.544 Mbps.

94. Streamlined Comment and Auto-Grant Periods. We adopt a uniform reduced public comment period of 10 days and an auto-grant period of 31 days for all carriers. Discontinuing carriers that wish to avail themselves of this streamlined process may do so by including a simple certification that they have received Commission authority to grandfather the services at issue at least 180 days prior to the filing of the discontinuance application. This certification must reference the file number of the prior Commission authorization to grandfather the services the carrier now seeks to permanently discontinue.

95. The record supports reducing the public comment period to 10 days and the auto-grant period to 31 days for previously-grandfathered legacy data applications. Streamlining the comment and auto-grant periods for this class of discontinuance applications will benefit both industry and consumers by speeding the retirement of outdated services and the transition to next-generation networks. Carriers that seek to completely retire legacy data services that have previously been grandfathered will be better able to focus resources on more innovative, technologically advanced services, while simultaneously protecting customers of these previously grandfathered legacy data services.

96. A 10-day comment period for these applications will provide customers with ample notice of the impending discontinuance of their service, as the initial grandfathering of the service is a clear signal to these customers that such service is likely to be discontinued in the future. This is particularly true considering our requirement that such services be grandfathered for a minimum of 180 days prior to the filing of a discontinuance application. Thus, we disagree with commenters that claim that this shortened comment interval will fail to give impacted customers sufficient notice, or suggest merely knowing that a service is grandfathered does not prepare retail or wholesale customers for the subsequent end to that service. In its comments, Harris Corporation appears to mistakenly believe we have proposed to allow the discontinuance to go into effect ten days after issuance of a public notice. It also appears to mistakenly conflate the network change notification process with the section 214(a) discontinuance process. In reality, the 180-day minimum period for grandfathering legacy data services will give these previously-grandfathered customers more notice and a far longer timeframe within which to consider alternative services than existed under our prior rules. And as competition continues to grow and providers offer new and better services over modern broadband facilities, it is less likely that customers will experience a harmful service loss or be unable to secure a reasonable substitute service for legacy services at any rate.

97. The 31-day auto-grant period will provide us sufficient time to determine whether to remove an application from automatic grant if we find that such application raises concerns, and carriers and their customers are unable to resolve their issues prior to the end of the 31-day period. We are not persuaded by arguments claiming that we fail to account for the need for longer timeframes to transition customers to new or alternative services, potentially disrupting and hampering mission-critical communications, and pointing to past service transitions that have taken more than a year to complete. Many discontinuances are already subject to a 31-day auto-grant period, and commenters have failed to show why this existing interval is a problem. Moreover, we expect that in the case of discontinuances involving multiple customer locations that require lengthy transition periods to implement, particularly of the type concerning these commenters, the discontinuing carrier has strong incentives to work with its customers to establish a transition schedule that is seamless, physically attainable, and comports with the service agreement or master contract governing the terms of service between that customer and carrier. After all, the carrier is in business to provide service, and in today's increasingly competitive business services marketplace, the incentives to retain and grow existing customer relationships are strong.

98. Similarly, we are not persuaded by commenters' concerns that streamlining the auto-grant period for applications to discontinue previously grandfathered legacy data services may allow carriers to quickly discontinue vital services used by 9-1-1 networks to deliver calls from end users to emergency responders. Carriers' incentives to ensure seamless service transitions for services involved in safety-of-life are even more acute than other types of mission-critical safety-related service arrangements. Nonetheless, we invite customers to comment on specific applications that raise public safety or other mission-critical safety concerns, where the discontinuance timeframe is too short to accommodate its transition needs, or where the carrier is not working cooperatively to effectuate such a transition. We retain flexibility to address these circumstances on a case-by-case basis.

99. We also decline to grant Verizon's request that we further shorten the streamlined auto-grant period for applications to discontinue previously grandfathered legacy data services from 31 days to 25 days. Although it is admittedly a judgment call, we would prefer a slightly longer period to evaluate discontinuance applications that impact existing customers than applications that seek to grandfather such customers.

100. Having considered the record, we find that the auto-grant period we adopt today will eliminate needless delay in eliminating these previously grandfathered legacy data services and enable carriers to spend their limited resources on deploying innovative next-generation services. At the same time, we recognize that nothing about our auto-grant timeframe alters our statutory obligation to ensure that these discontinuance applications, like all other discontinuance applications, are not contrary to the public interest, nor does it impact our ability to remove it from streamlined treatment.

101. Uniform Treatment for Dominant and Non-Dominant Carriers. We adopt uniform timeframes for all carriers for applications to discontinue previously grandfathered legacy data services for the same reasons we adopt uniform timeframes for grandfathering applications. These legacy data services are characterized by falling demand, and consumers are increasingly abandoning them and adopting more advanced data services with better capability and greater functionality. Moreover, the market for data services as a whole is characterized by increasing competition from a variety of competitive sources, including cable, wireless, and satellite providers, all offering alternative data services that provide, at a minimum, the same capabilities of these legacy data services. Given these market dynamics, disparate treatment of dominant and non-dominant carriers seeking to discontinue these previously grandfathered services is no longer necessary.

102. Eligible Previously-Grandfathered Legacy Data Services. The record supports limiting previously grandfathered legacy data services subject to our new rules to speeds below 1.544 Mbps. Given the falling demand for data services below this speed as consumers migrate to more advanced offerings with higher speeds and greater functionality, we find this to be the appropriate threshold at this time. Moreover, adopting this speed threshold maintains consistency with the rules we adopt today governing low-speed legacy grandfathered services, and will thus avoid any customer and carrier confusion as to which previously-grandfathered data services these new rules apply.

103. We decline to extend these streamlined comment and auto-grant periods to all applications to discontinue any type of grandfathered services, as Verizon suggests. We prefer to proceed incrementally and legacy data services present the most obvious case for the streamlining reforms we adopt given declines in usage and competitive options available. As reflected in the FNPRM, we will explore in greater depth whether to adopt further streamlining reforms for other legacy services.

104. We also decline to limit eligibility to only those applications that include prescribed methods of demonstrating the availability of alternative comparable data services throughout the service area from the discontinuing provider or a third party, as Southern Company Services recommends. Introducing additional requirements that carriers must satisfy before discontinuing low speed legacy data services does not comport with our objectives in adopting new more flexible streamlined rules today. Moreover, we consider the existence of available and adequate alternative services as a part of our five-factor test for evaluating discontinuance applications. Consequently, there is no need to make these applications unnecessarily arduous by adding redundant and inflexible new content requirements.

105. Finally, we reject Windstream's proposal to exclude from eligibility previously-grandfathered services that are subject to a specified customer term before that term has expired. Nothing in our rules modifies or abrogates the terms of contracts. Windstream offers no good reason to insert ourselves into contractual disputes.

106. Special Consideration for Federal, State, Local, and Tribal Government Users. We also decline to adopt special provisions for applications seeking to discontinue previously grandfathered legacy data services to federal, state, local, and Tribal government users. Although we are sensitive to the budget and procurement challenges that government customers face, as well as other challenges associated with transitioning strategic government applications that use legacy services to alternative next-generation services, these issues are not insurmountable and the record does not support adoption of unique rule-based regulatory requirements to address them. Instead, the record shows that incumbent LECs and other carriers have incentives and a long history of accommodating government customers to avoid costly and dangerous disruptions of service. The record makes clear that carriers discuss service changes with affected government customers “well before the changes are implemented,” and are especially sensitive to the needs of government customers when supplying mission-critical services that implicate emergency response or national security. For example, CenturyLink's standard agreement for federal government customers obligates CenturyLink to provide “18 months' notice prior to discontinuing a service covered by that agreement, and/or to deliver an alternative product equivalent to the service being discontinued.” Moreover, as AT&T and others explain any hurdles associated with transitioning large volumes of services, even those considered to be critical, can be overcome through negotiation and coordination between the carrier and government customers. Indeed, this process is routine for carrier/customer relationships of this size.

107. Because the record shows that any concerns about government entities' transition away from legacy services are better and more appropriately addressed by government customers and their carriers in their negotiated service agreements which necessarily cover service continuity provisions, we decline to adopt special rules for such entities with respect to the discontinuance of legacy services. Based on the record, we believe that negotiated service contracts are the best vehicle for addressing government users' specific concerns and best serve as enforceable protections to address their long-term planning needs. However, we retain authority to take action in individual circumstances where the public interest requires. Having found that negotiated service contracts—which typically provide substantial advanced notice of service discontinuance—are the best vehicle for addressing government users' specific needs and concerns, and because government users are well-placed to come to the Commission with individual cases that require our attention, we find it unnecessary to address NTIA's request that we require the grandfathering of all services received by federal customers prior to a service discontinuance. We note that NTIA has separately filed a petition that remains pending seeking reconsideration or clarification of the 2016 Technology Transitions Order. The resolution of that petition, as well as NTIA's request for interoperability protection for the CPE used by the federal government, is outside the scope of the decisions we make here.

3. Expediting Applications To Discontinue Low-Speed Legacy Services With No Customers

108. Recognizing that there are minimal concerns when a carrier seeks to discontinue a service which has no customers, we adopt new streamlined processing rules for a specific category of “no customer” discontinuance applications, i.e., applications to discontinue low-speed legacy services having no customers for the prior 30-day period. Specifically, we adopt a 15-day auto-grant period for applications to discontinue legacy voice and data services below 1.544 Mbps for which the carrier has had no customers and no request for service for at least a 30-day period prior to filing the application. Consistent with the streamline processing measures we adopt for other categories of low-speed legacy service applications today, because demand for these services is falling it makes no sense to prevent carriers from eliminating these services and any associated costs from their business processes as rapidly as possible.

109. Under the current rules, carriers can apply for streamlined processing to discontinue any service if they have no customers taking that service and have had no requests for that service for the previous 180 days. This rule is currently pending OMB approval and is not yet effective. Such applications will be automatically granted 31 days after the Commission places them on public notice unless the Commission has removed the application from streamlined processing. The Notice sought comment on whether to maintain and further streamline the broadly applicable “no customer” rule by reducing the 180 day period to 60 days, or even shorter, and whether any other changes to this rule should be made. The record supports adopting a shorter “no customer” period, as well as reducing the auto-grant period for “no customer” applications. When there are no customers of a service, and no prospective customers have requested a service for 30 days, there is little or no public interest for the section 214 discontinuance process to protect. We are not persuaded by Windstream's argument that a lengthy “no customer” period is necessary to demonstrate a lack of demand. There is no evidence in the record to suggest that services with no customers and no demand for 30 days are likely to be in demand sometime in the future. We better meet our public interest obligations when needless regulatory delay is eliminated so as to facilitate discontinuance of services that are no longer demanded, freeing up carrier resources for other, more highly demanded services. We find that a 30-day “no customer” period and a 15 day auto-grant period strikes the best balance between providing additional streamlining and ensuring adequate proof of no further demand.

110. As with today's other section 214(a) streamlining reforms, we proceed incrementally, and limit this further streamlined processing to those “no customer” applications to discontinue low-speed (i.e. below 1.544 Mbps) legacy voice and data services. Demand for these legacy services has declined precipitously in recent years, and competing services utilizing next-generation technologies are readily available to consumers, minimizing the potential for harm to consumers following the discontinuance of these services. In light of these market forces, we find it appropriate to further streamline the discontinuance process for carriers seeking to discontinue these low-speed legacy services with no customers. However, in the accompanying FNPRM, we seek comment on whether we should adopt this same reduced “no customer” 30-day timeframe and 15 day auto-grant period for all, or some other subset, of “no customer” discontinuance applications.

111. At the same time, we find that the current record is insufficient to consider AT&T's and CenturyLink's requests that we should forbear entirely from applying section 214 with regard to any service for which there are no customers. We seek comment on AT&T's and CenturyLink's proposal in the accompanying FNPRM.

4. Eliminating Section 214(a) Discontinuance Requirements for Solely Wholesale Services

112. We conclude that a carrier need not seek approval from the Commission to discontinue, reduce, or impair a service pursuant to section 214(a) of the Act when a change in service directly affects only carrier-customers. We address here only changes in wholesale service, such as the discontinuance of one service when others remain available, not the “severance of physical connection or the termination or suspension of the interchange of traffic with another carrier.” As used in this section, a carrier-customer is a carrier—typically a competitive LEC—that buys wholesale service from another carrier—typically an incumbent LEC—and repackages that service for retail sale to end user customers. Thus, the carrier-customer is both a “customer” (of the incumbent LEC) and a “carrier” (to its retail end users). In so doing, we reverse the decision in the 2015 Technology Transitions Order regarding when carriers must seek approval to discontinue, reduce, or impair wholesale service provided to carrier-customers.” Our decision today better comports with the text of the Act and Commission precedent, and as the record shows it benefits consumers by eliminating a needless regulatory burden that diverts investment to outdated services. As a result of our decision, we return to the status quo before the 2015 Technology Transitions Order.

113. As an initial matter, our decision is the best interpretation of the Act and relevant Commission precedent. Our policy decisions must be grounded in the authority the text of the Act grants to the Commission. Section 214(a) states, in pertinent part, “No carrier shall discontinue, reduce, or impair service to a community, or part of a community, unless and until there shall first have been obtained from the Commission a certificate that neither the present nor future public convenience and necessity will be adversely affected thereby[.]” When determining whether a carrier needs Commission approval to discontinue service, the Act seeks to protect service provided by a carrier to a “community.” The Commission has consistently held that the term “community” in the statute means end users, or “the using public.” Carrier-customers are not the using public; they are intermediaries who provide service to the using public. Carrier-customers are therefore not part of a “community” that section 214(a) seeks to protect from discontinuances. As the Commission noted in Western Union, “there are some important differences between this type of relationship and the more usual type involving a carrier and its non-carrier customer.”

114. The 2015 Technology Transitions Order purported to recognize this statutory limitation, but it failed to heed the constraints of the text and made the carrier responsible for its carrier-customers' customers. According to that Order, “under the statute and our precedent it is not enough for a carrier that intends to discontinue a service to look only at its own end-user customers.” The Order said the carrier must also evaluate “service provided to the community by the discontinuing carrier's carrier-customer.” Upon further consideration, we conclude that this was an incorrect reading of the statute's plain language.

115. We return to the interpretation dictated by the plain text of the Act, that a carrier must consider only the end-user community it serves. The customers of the carrier-customer are part of a community: They are the retail end users. But they are not part of a community that the carrier is serving; rather, the carrier-customer is their service provider. The upstream carrier is selling wholesale service to the carrier-customer, and that wholesale service is merely an input that the carrier-customer repackages into a retail service to the end user. It is the carrier-customer, not the carrier, that is providing “service to a community,” and therefore it is the carrier-customer, not the carrier, that has an obligation under section 214(a) to seek approval for a discontinuance of the end user's service. And this makes sense given that it is the carrier-customer, not the carrier, that has the relationship with the community through its end-user customers, and it is the carrier-customer, not the carrier, that chooses what facilities to use (its own, the carrier's, or another's) to provide that service to the community. The record strongly supports this interpretation; we disagree with the relatively few commenters who misinterpret section 214 to require carriers to maintain wholesale service for the benefit of someone else's customers.

116. The structure of the Communications Act also supports this interpretation of the duty under 214(a). Congress laid out a carrier's responsibility to its carrier-customers in section 251, and a carrier's duty under section 251(c)(5) complements the carrier-customer's duty under section 214(a). If a carrier makes a network change that would impact the carrier-customer (and correspondingly disrupt retail service to the carrier-customer's end users), it must notify the carrier-customer. This notice gives the carrier-customer adequate time to either find another wholesale supplier or seek approval under section 214(a) to discontinue service to its own end users. Although sections 214(a) and 251(c)(5) are distinct provisions serving distinct purposes (as the former pertains to changes in services and the latter pertains to changes in networks), they nonetheless complement each other to help carriers and carrier-customers protect the using public's ability to obtain and retain service. We therefore disagree with commenters that argue that carriers must both provide network change notifications and obtain approval under section 214 for discontinuing wholesale service solely to a carrier-customer; such an interpretation is contrary to the plain language of section 214 and imposes needlessly duplicative burdens on carriers.

117. Agency precedent largely supports this plain reading of the Act. In case after case after case after case after case, the Commission has declined to require a section 214 discontinuance application before allowing a carrier to change the service offerings available to its carrier-customers. In AT&T Telpak, the Commission made clear that section 214 “does not apply” when a carrier continues to offer “like” services to a community, even if carrier-customers would prefer to use a previously offered service. In Western Union II, the Commission stated that “the fact that a carrier's tariff action may increase costs or rates,” including in that case an action that required a carrier-customer to order different services using different equipment over different facilities, “does not give rise to any requirement for Section 214(a) certification.” In Lincoln County, the Commission found that the “removal” of particular facilities used by a carrier-customer, as well as the “reconfiguration of facilities and [] re-routing of traffic” “does not fall within 214 and 214 application is not required.” And in Graphnet, the Commission found that “in situations where one carrier attempts to invoke Section 214(a) against another carrier, concern should be had for the ultimate impact on the community served rather than on any technical or financial impact on the carrier itself.” Despite the 2015 Technology Transitions Order's suggestion to the contrary, both the holdings and dicta in those cases support our conclusion that carriers need not seek approval from the Commission to discontinue, reduce, or impair a service pursuant to section 214(a) of the Act when a change in service directly affects only carrier-customers.

118. We conclude that the Commission erred in BellSouth, the only case to require a discontinuance application from an upstream carrier in the absence of end users. There, the Commission acknowledged that carriers had previously been able to change their offerings to carrier-customers without seeking section 214 approval and distinguished those instances by noting that the service at issue “is the subject of a Notice of Proposed Rulemaking in which the Commission tentatively concluded that it is in the public interest to formulate a federal policy to promote the availability of [that] service.” But section 214 neither mentions Commission rulemakings nor ties its scope to such rulemakings, and to the extent BellSouth holds otherwise, we overrule it. We also note that the Commission decided BellSouth four years before adoption of the 1996 Act, which adopted a notice-based process for wholesale inputs. Therefore, it is clearer today than in 1992 that the interpretation adopted in BellSouth is erroneous in light of the 1996 Act addressing obligations of carriers to competitors through statutory provisions other than the discontinuance requirement of section 214. For the reasons discussed herein we conclude that our interpretation today is more consistent with the statutory text and the public interest, and therefore we overrule any precedent to the contrary.

119. To the extent there is any ambiguity in the statutory text or past Commission precedent interpreting that text, we nevertheless conclude that our reversal of the prior interpretation of section 214(a) in the 2015 Technology Transitions Order is appropriate because our interpretation better serves the public interest. It fully protects consumers because each carrier is responsible for its own customers. The upstream carrier files 214 applications as needed when its end users are affected, and the carrier-customer files 214 applications as needed when its end users are affected. Moreover, this less burdensome approach to section 214(a) gives full practical effect to section 214(a)'s direction that we ensure that discontinuances do not adversely impact the public interest. In many circumstances the carrier-customer will be able to obtain wholesale service from another source without causing a disruption of service for the end user. As CenturyLink observes, the widespread availability of next-generation substitutes to legacy TDM services makes it unlikely that there will be no available alternative to the discontinued wholesale input. Moreover, this risk of loss of wholesale supply is an incentive for the carrier-customer to itself invest in new infrastructure, which would benefit the public. Insofar as there arise instances in which a community may truly lose a service option (and the upstream carrier would not already be filing a 214 discontinuance application for its own customers), we conclude that the other public benefits to infrastructure investment discussed herein outweigh those costs. Additionally, in circumstances in which the loss of a service input results from a network change by an incumbent LEC, we are able to extend the implementation date for incumbent LEC copper retirements and short-term network changes up to six months from the date of filing where the competitive LEC has made a showing that satisfies our rules. Our network change process under section 251(c)(5) thus provides an additional safety valve that mitigates the likelihood of impact on end-user customers. We thus reject arguments that we should retain the 2015 interpretation predicated on the view that as a practical matter, if a carrier discontinues wholesale service to a carrier-customer, that carrier-customer may be unable to obtain wholesale service from another provider and may have no choice but to discontinue service to its end users, effectively resulting in a downstream discontinuance of retail service.

120. The prior interpretation diverted investment from network improvements in order to maintain outdated services that the carriers would otherwise discontinue. Requiring carriers to accommodate end user customers with which they have no relationship for services that they are not providing would be unduly burdensome and would likely hinder deployment of new advanced networks. We agree with AT&T that “[i]ntermediating wholesale carriers between carrier-customers and their end users will inevitably lead to wasteful expenditure of wholesale carriers' resources that could otherwise be put toward furthering technology transitions.”

121. Moreover, as a practical matter, upstream carriers cannot consistently know how the carrier-customers' end users are using their retail service. An upstream carrier does not typically have a contractual relationship with its carrier-customer's end users, and it may not know how these customers use their retail service. We disagree with commenters that claim that the upstream carrier can easily ascertain how an end user—with which the carrier has no relationship—uses their service. The consultation process described by the 2015 Technology Transitions Order was cumbersome and unlikely to adequately inform an upstream carrier absent extraordinary market research expenses. The carrier that provides service directly to end users is in the best position to evaluate the marketplace options available to it and determine the most effective way to provide retail service to its end users. Consequently, it makes the most sense for the carrier that provides service directly to end users to have the responsibility to comply with section 214(a) with regard to the services it provides its customers.

122. We disagree with commenters that argue that we should consider whether discontinuing service to carrier-customers could impede competition or otherwise injure those carrier-customers. The purpose of section 214(a) is not to bolster competition; it is to protect end users. As the Commission has long held, “concern should be had for the ultimate impact on the community served rather than on any technical or financial impact on the [carrier-customer] itself.” Congress added other provisions to the Act in 1996 to promote competition. Even if harms to carrier-customers were relevant to our decision, we conclude that any such harms are outweighed by the benefits to the public described herein. In particular, we note that carrier-customers can mitigate any harms associated with this decision by negotiating with carriers for contractual provisions to protect against the sudden or unexpected loss of wholesale service. We remind carriers that discontinuing a service—whether a section 214 approval is required or not—is not an excuse for abrogating contracts, including contract-tariffs. Further, any costs incurred by carrier-customers under our decision today are the same costs that would have obtained prior to the 2015 Order.

123. We conclude, based on the text of the statute and the public interest in both spurring deployment of advanced networks and protecting access to existing services, that carriers are not required to seek approval under section 214(a) in order to discontinue, reduce, or impair wholesale service to a carrier-customer.

5. Rejecting Other Modifications to the Discontinuance Process

124. Based on the current record, we reject the proposals by certain commenters to further modify the section 214(a) discontinuance process today. Specifically, we reject NRECA's request to place additional conditions on the discontinuance of DS1 and DS3 services, and Verizon's proposal that we impose “shot clocks” for Commission processing of discontinuance applications.

125. NRECA DS1 and DS3. We decline NCREA's request to impose specific requirements related to installation, testing, and pricing of replacement services as conditions to granting carriers' section 214(a) discontinuance authority for DS1 and DS3 TDM services. Section 214(a) directs the Commission to ensure that a loss of service does not harm the public convenience or necessity, and applications to discontinue DS1s and DS3s, like discontinuance applications for any service, are subject to the Commission's traditional five-factor test. NCREA has provided no compelling reason why more burdensome requirements should be imposed on this particular category of services. Our rules already require that carriers that file discontinuance applications provide notice of such applications in writing to each affected customer unless we authorize in advance, for good cause shown, another form of notice. Thus, NCREA's request for a requirement that a carrier provide written notice to customers of planned discontinuance dates is already contained in our rules.

126. Verizon Shot Clocks. We decline to adopt Verizon's “shot clock” proposals. Verizon has failed to demonstrate why the Commission's current processing timeframes warrant adopting such shot clocks. The Commission routinely processes discontinuance applications based on carriers' proposed schedules set forth in their applications, and a 10-day shot clock could preclude the Bureau staff from obtaining a clarification or supplemental information in the case of an incomplete application necessary to issue the public notice. In such cases, the Bureau would be forced to dismiss the application rather than having the flexibility to resolve the issue and process the application but for the shot clock.

127. We further decline to adopt Verizon's proposed 31-day “deemed granted” shot clock for applications that have been removed from streamlined treatment after the initial auto-grant period has been suspended. Applications that are removed from automatic-grant are done so for good reason, primarily to resolve an objection that merits further consideration and review. While we strive to resolve such issues as quickly as possible, often resolution depends on the applicant working with the objecting party to achieve some accommodation. Adopting Verizon's proposal would remove any incentive the carrier had to address a legitimate concern raised by a commenter, effectively automatically granting the application in an additional 31 days. Doing so would run counter to our statutory responsibility to ensure that proposed discontinuance applications do not harm the public convenience and necessity.

IV. Final Regulatory Flexibility Analysis

128. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated into the notice of proposed rulemaking, notice of inquiry, and request for comment (Wireline Infrastructure NPRM) for the wireline infrastructure proceeding. The Commission sought written public comment on the proposals in the Wireline Infrastructure NPRM, including comment on the IRFA. The Commission received no comments on the IRFA. Because the Commission amends its rules in this Order, the Commission has included this Final Regulatory Flexibility Analysis (FRFA). This present FRFA conforms to the RFA.

A. Need for, and Objectives of, the Rules

129. In the Wireline Infrastructure NPRM, the Commission proposed to remove regulatory barriers to infrastructure investment at the federal, state, and local level; suggested changes to speed the transition from copper networks and legacy services to next-generation networks and services; and proposed to reform Commission regulations that increase costs and slow broadband deployment. In so doing, the Commission sought to better enable broadband providers to build, maintain, and upgrade their networks, leading to more affordable and available internet access and other broadband services for consumers and businesses alike.

130. Pursuant to these objectives, this Order adopts changes to Commission rules regarding pole attachments, network change notifications, and section 214 discontinuance procedures. The Order adopts changes to the current pole attachment rules that: (1) Codify the elimination from the pole attachment rate formulas those capital costs that already have been paid to the utility via make-ready charges, (2) establish a 180-day shot clock for Enforcement Bureau resolution of pole access complaints, and (3) allow incumbent LECs to request nondiscriminatory pole access from other LECs that own or control poles, ducts, conduits, or rights-of-way. The modifications to our pole attachment rules we adopt today will reduce costs for attachers, reform the pole access complaint procedures to settle access disputes more swiftly, and increase access to infrastructure for certain types of broadband providers. The Order also adopts changes to the Commission's part 51 network change notification rules to expedite the copper retirement process and to more generally reduce regulatory burdens to facilitate more rapid deployment of next-generation networks. Finally, the Order adopts rule changes to the section 214(a) discontinuance process that streamline the review and approval process for three types of section 214(a) discontinuance applications, including applications to: (i) Grandfather low-speed legacy voice and data services; (ii) discontinue previously grandfathered low-speed legacy data services; and (iii) discontinue low-speed services with no customers. The Order also clarifies that solely wholesale services are not subject to discontinuance approval obligations under the Act or our rules. These rules will eliminate unnecessary regulatory process encumbrances when carriers decide to cease offering legacy services that are rapidly and abundantly being replaced with more innovative alternatives, speeding the transition to next-generation network infrastructure and services.

B. Summary of Significant Issues Raised by Public Comments in Response to the IRFA

131. The Commission did not receive comments specifically addressing the rules and policies proposed in the IRFA.

C. Response to Comments by the Chief Counsel for Advocacy of the Small Business Administration

132. The Chief Counsel did not file any comments in response to this proceeding.

D. Description and Estimate of the Number of Small Entities to Which the Rules Will Apply

133. The RFA directs agencies to provide a description and, where feasible, an estimate of the number of small entities that may be affected by the final rules adopted pursuant to the Wireline Infrastructure NPRM. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small-business concern” under the Small Business Act. Pursuant to 5 U.S.C. 601(3), the statutory definition of a small business applies “unless an agency, after consultation with the Office of Advocacy of the Small Business Administration and after opportunity for public comment, establishes one or more definitions of such term which are appropriate to the activities of the agency and publishes such definition(s) in the Federal Register.” A “small-business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA.

134. The majority of our changes will affect obligations on incumbent LECs and, in some cases, competitive LECs. Certain pole attachment rules also affect obligations on utilities that own poles, telecommunications carriers and cable television systems that seek to attach equipment to utility poles, and other LECs that own poles. Other entities that choose to object to network change notifications for copper retirement or section 214 discontinuance applications may be economically impacted by the rules in the Order.

135. Small Businesses, Small Organizations, Small Governmental Jurisdictions. Our actions, over time, may affect small entities that are not easily categorized at present. We therefore describe here, at the outset, three comprehensive small entity size standards that could be directly affected herein. First, while there are industry specific size standards for small businesses that are used in the regulatory flexibility analysis, according to data from the SBA's Office of Advocacy, in general a small business is an independent business having fewer than 500 employees. These types of small businesses represent 99.9% of all businesses in the United States which translates to 28.8 million businesses.

136. Next, the type of small entity described as a “small organization” is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” Nationwide, as of Aug 2016, there were approximately 356,494 small organizations based on registration and tax data filed by nonprofits with the Internal Revenue Service (IRS). Data from the Urban Institute, National Center for Charitable Statistics (NCCS) reporting on nonprofit organizations registered with the IRS was used to estimate the number of small organizations. Reports generated using the NCCS online database indicated that as of August 2016 there were 356,494 registered nonprofits with total revenues of less than $100,000. Of this number 326,897 entities filed tax returns with 65,113 registered nonprofits reporting total revenues of $50,000 or less on the IRS Form 990-N for Small Exempt Organizations and 261,784 nonprofits reporting total revenues of $100,000 or less on some other version of the IRS Form 990 within 24 months of the August 2016 data release date.

137. Finally, the small entity described as a “small governmental jurisdiction” is defined generally as “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” U.S. Census Bureau data from the 2012 Census of Governments indicates that there were 90,056 local governmental jurisdictions consisting of general purpose governments and special purpose governments in the United States. Local governmental jurisdictions are classified in two categories—General purpose governments (county, municipal and town or township) and Special purpose governments (special districts and independent school districts). The Census of Government is conducted every five (5) years compiling data for years ending with “2” and “7.” Of this number there were 37,132 General purpose governments (county, municipal and town or township) with populations of less than 50,000 and 12,184 Special purpose governments (independent school districts and special districts) with populations of less than 50,000. The 2012 U.S. Census Bureau data for most types of governments in the local government category shows that the majority of these governments have populations of less than 50,000. Based on this data we estimate that at least 49,316 local government jurisdictions fall in the category of “small governmental jurisdictions.”

138. Wired Telecommunications Carriers. The U.S. Census Bureau defines this industry as “establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired communications networks. Transmission facilities may be based on a single technology or a combination of technologies. Establishments in this industry use the wired telecommunications network facilities that they operate to provide a variety of services, such as wired telephony services, including VoIP services, wired (cable) audio and video programming distribution, and wired broadband internet services. By exception, establishments providing satellite television distribution services using facilities and infrastructure that they operate are included in this industry.” The SBA has developed a small business size standard for Wired Telecommunications Carriers, which consists of all such companies having 1,500 or fewer employees. Census data for 2012 shows that there were 3,117 firms that operated that year. Of this total, 3,083 operated with fewer than 1,000 employees. Thus, under this size standard, the majority of firms in this industry can be considered small.

139. Local Exchange Carriers (LECs). Neither the Commission nor the SBA has developed a size standard for small businesses specifically applicable to local exchange services. The closest applicable NAICS Code category is for Wired Telecommunications Carriers, as defined in paragraph 138 of this FRFA. Under that size standard, such a business is small if it has 1,500 or fewer employees. Census data for 2012 show that there were 3,117 firms that operated that year. Of this total, 3,083 operated with fewer than 1,000 employees. The Commission therefore estimates that most providers of local exchange carrier service are small entities that may be affected by the rules adopted.

140. Incumbent Local Exchange Carriers (incumbent LECs). Neither the Commission nor the SBA has developed a small business size standard specifically for incumbent local exchange services. The closest applicable NAICS Code category is Wired Telecommunications Carriers as defined in paragraph 138 of this FRFA. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 3,117 firms operated in that year. Of this total, 3,083 operated with fewer than 1,000 employees. Consequently, the Commission estimates that most providers of incumbent local exchange service are small businesses that may be affected by the rules and policies adopted. One thousand three hundred and seven (1,307) Incumbent Local Exchange Carriers reported that they were incumbent local exchange service providers. Of this total, an estimated 1,006 have 1,500 or fewer employees.

141. Competitive Local Exchange Carriers (competitive LECs), Competitive Access Providers (CAPs), Shared-Tenant Service Providers, and Other Local Service Providers. Neither the Commission nor the SBA has developed a small business size standard specifically for these service providers. The appropriate NAICS Code category is Wired Telecommunications Carriers, as defined in paragraph 138 of this FRFA. Under that size standard, such a business is small if it has 1,500 or fewer employees. U.S. Census data for 2012 indicate that 3,117 firms operated during that year. Of that number, 3,083 operated with fewer than 1,000 employees. Based on this data, the Commission concludes that the majority of Competitive LECs, CAPs, Shared-Tenant Service Providers, and Other Local Service Providers are small entities. According to Commission data, 1,442 carriers reported that they were engaged in the provision of either competitive local exchange services or competitive access provider services. Of these 1,442 carriers, an estimated 1,256 have 1,500 or fewer employees. In addition, 17 carriers have reported that they are Shared-Tenant Service Providers, and all 17 are estimated to have 1,500 or fewer employees. In addition, 72 carriers have reported that they are Other Local Service Providers. Of this total, 70 have 1,500 or fewer employees. Consequently, the Commission estimates that most providers of competitive local exchange service, competitive access providers, Shared-Tenant Service Providers, and Other Local Service Providers are small entities that may be affected by the adopted rules.

142. Interexchange Carriers (IXCs). Neither the Commission nor the SBA has developed a definition for Interexchange Carriers. The closest NAICS Code category is Wired Telecommunications Carriers as defined in paragraph 138 of this FRFA. The applicable size standard under SBA rules is that such a business is small if it has 1,500 or fewer employees. According to Commission data, 359 companies reported that their primary telecommunications service activity was the provision of interexchange services. Of this total, an estimated 317 have 1,500 or fewer employees and 42 have more than 1,500 employees. Consequently, the Commission estimates that the majority of interexchange service providers are small entities that may be affected by rules adopted.

143. Other Toll Carriers. Neither the Commission nor the SBA has developed a size standard for small businesses specifically applicable to Other Toll Carriers. This category includes toll carriers that do not fall within the categories of interexchange carriers, operator service providers, prepaid calling card providers, satellite service carriers, or toll resellers. The closest applicable NAICS Code category is for Wired Telecommunications Carriers, as defined in paragraph 138 of this FRFA. Under that size standard, such a business is small if it has 1,500 or fewer employees. Census data for 2012 shows that there were 3,117 firms that operated that year. Of this total, 3,083 operated with fewer than 1,000 employees. Thus, under this category and the associated small business size standard, the majority of Other Toll Carriers can be considered small. According to Commission data, 284 companies reported that their primary telecommunications service activity was the provision of other toll carriage. Of these, an estimated 279 have 1,500 or fewer employees. Consequently, the Commission estimates that most Other Toll Carriers that may be affected by our rules are small.

144. Wireless Telecommunications Carriers (except Satellite). This industry comprises establishments engaged in operating and maintaining switching and transmission facilities to provide communications via the airwaves, such as cellular services, paging services, wireless internet access, and wireless video services. The appropriate size standard under SBA rules is that such a business is small if it has 1,500 or fewer employees. For this industry, Census data for 2012 show that there were 967 firms that operated for the entire year. Of this total, 955 firms had fewer than 1,000 employees. Thus under this category and the associated size standard, the Commission estimates that the majority of wireless telecommunications carriers (except satellite) are small entities. Similarly, according to internally developed Commission data, 413 carriers reported that they were engaged in the provision of wireless telephony, including cellular service, Personal Communications Service (PCS), and Specialized Mobile Radio (SMR) services. Of this total, an estimated 261 have 1,500 or fewer employees. Consequently, the Commission estimates that approximately half of these firms can be considered small. Thus, using available data, we estimate that the majority of wireless firms can be considered small.

145. Cable Companies and Systems (Rate Regulation). The Commission has developed its own small business size standards for the purpose of cable rate regulation. Under the Commission's rules, a “small cable company” is one serving 400,000 or fewer subscribers nationwide. Industry data indicate that there are currently 4,600 active cable systems in the United States. Of this total, all but nine cable operators nationwide are small under the 400,000-subscriber size standard. In addition, under the Commission's rate regulation rules, a “small system” is a cable system serving 15,000 or fewer subscribers. Current Commission records show 4,600 cable systems nationwide. Of this total, 3,900 cable systems have fewer than 15,000 subscribers, and 700 systems have 15,000 or more subscribers, based on the same records. Thus, under this standard as well, we estimate that most cable systems are small entities.

146. Cable System Operators (Telecom Act Standard). The Communications Act of 1934, as amended, also contains a size standard for small cable system operators, which is “a cable operator that, directly or through an affiliate, serves in the aggregate fewer than one percent of all subscribers in the United States and is not affiliated with any entity or entities whose gross annual revenues in the aggregate exceed $250,000,000 are approximately 52,403,705 cable video subscribers in the United States today. Accordingly, an operator serving fewer than 524,037 subscribers shall be deemed a small operator if its annual revenues, when combined with the total annual revenues of all its affiliates, do not exceed $250 million in the aggregate. Based on available data, we find that all but nine incumbent cable operators are small entities under this size standard. We note that the Commission neither requests nor collects information on whether cable system operators are affiliated with entities whose gross annual revenues exceed $250 million. The Commission does receive such information on a case-by-case basis if a cable operator appeals a local franchise authority's finding that the operator does not qualify as a small cable operator pursuant to section 76.901(f) of the Commission's rules. Although it seems certain that some of these cable system operators are affiliated with entities whose gross annual revenues exceed $250,000,000, we are unable at this time to estimate with greater precision the number of cable system operators that would qualify as small cable operators under the definition in the Communications Act.

147. All Other Telecommunications. “All Other Telecommunications” is defined as follows: “This U.S. industry is comprised of establishments that are primarily engaged in providing specialized telecommunications services, such as satellite tracking, communications telemetry, and radar station operation. This industry also includes establishments primarily engaged in providing satellite terminal stations and associated facilities connected with one or more terrestrial systems and capable of transmitting telecommunications to, and receiving telecommunications from, satellite systems. Establishments providing internet services or voice over internet protocol (VoIP) services via client supplied telecommunications connections are also included in this industry.” The SBA has developed a small business size standard for “All Other Telecommunications,” which consists of all such firms with gross annual receipts of $32.5 million or less. For this category, Census Bureau data for 2012 show that there were 1,442 firms that operated for the entire year. Of those firms, a total of 1,400 had annual receipts less than $25 million. Consequently, we conclude that the majority of All Other Telecommunications firms can be considered small.

148. Electric Power Generation, Transmission and Distribution. The Census Bureau defines this category as follows: “This industry group comprises establishments primarily engaged in generating, transmitting, and/or distributing electric power. Establishments in this industry group may perform one or more of the following activities: (1) Operate generation facilities that produce electric energy; (2) operate transmission systems that convey the electricity from the generation facility to the distribution system; and (3) operate distribution systems that convey electric power received from the generation facility or the transmission system to the final consumer.” This category includes electric power distribution, hydroelectric power generation, fossil fuel power generation, nuclear electric power generation, solar power generation, and wind power generation. The SBA has developed a small business size standard for firms in this category based on the number of employees working in a given business. According to Census Bureau data for 2012, there were 1,742 firms in this category that operated for the entire year.

149. Natural Gas Distribution. This economic census category comprises: “(1) Establishments primarily engaged in operating gas distribution systems (e.g., mains, meters); (2) establishments known as gas marketers that buy gas from the well and sell it to a distribution system; (3) establishments known as gas brokers or agents that arrange the sale of gas over gas distribution systems operated by others; and (4) establishments primarily engaged in transmitting and distributing gas to final consumers.” The SBA has developed a small business size standard for this industry, which is all such firms having 1,000 or fewer employees. According to Census Bureau data for 2012, there were 422 firms in this category that operated for the entire year. Of this total, 399 firms had employment of fewer than 1,000 employees, 23 firms had employment of 1,000 employees or more, and 37 firms were not operational. Thus, the majority of firms in this category can be considered small.

150. Water Supply and Irrigation Systems. This economic census category “comprises establishments primarily engaged in operating water treatment plants and/or operating water supply systems. The water supply system may include pumping stations, aqueducts, and/or distribution mains. The water may be used for drinking, irrigation, or other uses.” The SBA has developed a small business size standard for this industry, which is all such firms having $27.5 million or less in annual receipts. According to Census Bureau data for 2012, there were 3,261 firms in this category that operated for the entire year. Of this total, 3,035 firms had annual sales of less than $25 million. Thus, the majority of firms in this category can be considered small.

E. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements

151. Pole Attachment Reforms. The Order adopts the Wireline Infrastructure NPRM's proposal to amend § 1.1409(c) of our rules to exclude capital expenses already recovered via non-recurring make-ready fees from recurring pole attachment rates. It also establishes a 180-day “shot clock” for Enforcement Bureau resolution of pole access complaints filed under section 1.1409 of our rules. Finally, the Order interprets sections 224 and 251(b)(4) of the Act in harmony to create a reciprocal system of infrastructure access rules in which incumbent LECs, pursuant to section 251(b)(4) of the Act, are guaranteed access to poles owned or controlled by competitive LECs and vice versa, subject to the rates, terms, and conditions for pole attachments described in section 224.

152. Network Change Notifications. The Order adopts changes to the Commission's part 51 network change notification rules to expedite the copper retirement process and to more generally reduce regulatory burdens to facilitate more rapid deployment of next-generation networks. First, the Order finds that § 51.325(c)'s prohibition on incumbent LECs communicating with other entities about planned network changes prior to giving the requisite public notice of those changes pursuant to the Commission's rules impedes incumbent LECs' ability to freely communicate, engage, and coordinate with the parties that will ultimately be affected by those changes. The Order thus eliminates this prohibition. Second, the Order finds that the rules adopted by the Commission in 2015 governing the copper retirement notice process imposed far-reaching and burdensome notice obligations on incumbent LECs that frustrate their efforts to modernize their networks. The Order revises these rules and returns to the Commission's longstanding balance to help carriers get more modern networks to more Americans at lower costs.

153. Specifically, the Order: (1) Eliminates de facto retirement from the definition of copper retirement; (2) reduces the scope of direct notice by eliminating notice to retail customers and government entities, and returning to direct notice to directly interconnecting “telephone exchange service providers” rather than all directly interconnected “entities”; (3) replaces the detailed certification requirements with a generally-applicable certificate of service; (4) eliminates the requirement that copper retirement notices include “a description of any changes in prices, terms, or conditions that will accompany the planned changes”; (5) reduces the waiting period from 180 days to 90 days generally but to 15 days where the copper being retired is not used to provision service to any customers; (6) reinstates the pre-2015 objection procedures and eliminates the good faith communication requirement; (7) reinstates the pre-2015 objection resolution “deemed denied” provision; and (8) precludes the need to seek a waiver as a result of situations beyond an incumbent LEC's control by adopting flexible force majeure provisions.

154. Section 214(a) Discontinuances. The Order adopts the Wireline Infrastructure NPRM's proposal to streamline the approval process for discontinuance applications to grandfather low-speed (i.e., below 1.544 Mbps) legacy voice and data services for existing customers, and applies a uniform reduced public comment period of 10 days and an automatic grant period of 25 days for all carriers making such applications to the Commission. The Order also adopts the Wireline Infrastructure NPRM's proposal to streamline the discontinuance process for applications seeking authorization to discontinue legacy data services below 1.544 Mbps that have previously been grandfathered for a period of at least 180 days, and applies a uniform reduced public comment period of 10 days and an auto-grant period of 31 days to all such applications. Discontinuing carriers that wish to avail themselves of this streamlined process may do so by including a simple certification that they have received Commission authority to grandfather the services at issue at least 180 days prior to the filing of the discontinuance application. This certification must reference the file number of the prior Commission authorization to grandfather the services the carrier now seeks to permanently discontinue. The Order also adopts the Wireline Infrastructure NPRM's proposal to streamline the discontinuance process for services that have no customers or have had no requests for the service for a period of time. For low-speed legacy services, the Order therefore reduces the period within which a carrier has had no customers or no requests for the service to be eligible for streamlining from the prior 180 days to 30 days, and further reduces the auto-grant period to 15 days. Finally, the Order clarifies that a carrier must consider only its own end-user customers when determining whether it must seek approval from the Commission to discontinue, reduce, or impair a service pursuant to section 214(a) of the Act.

F. Steps Taken To Minimize the Significant Economic Impact on Small Entities and Significant Alternatives Considered

155. In this Order, the Commission modifies its pole attachment rules to reduce costs for attachers, reform the pole access complaint procedures to settle access disputes more swiftly, and increase access to infrastructure for certain types of broadband providers. It also relaxes or removes regulatory requirements on carriers seeking to replace legacy network infrastructure and legacy services with advanced broadband networks and innovative new services. Overall, we believe the actions in this document will reduce burdens on the affected carriers, including any small entities.

156. Pole Attachments. The Order found that codifying the exclusion of capital expenses already recovered via make-ready fees from recurring pole attachment rates would help eliminate any confusion regarding the treatment of capital expenses already recovered by a utility via make-ready fees. As detailed in the Order, the Commission considered arguments that it is unnecessary to codify this exclusion. However, the Order determined that this exclusion will enhance the deployment of broadband services to the extent that codifying the exclusion will keep recurring pole attachment rates low and uniform for attachers. The Order also found broad support in the record for establishing a 180-day shot clock for resolving pole access complaints, finding that establishment of such a shot clock could expedite broadband deployment by resolving pole attachment access disputes in a quicker fashion. As described in the Order, the Commission considered, but rejected, arguments opposing a shot-clock, as well as those requesting a shorter shot clock. Finally, the Order found it reasonable to interpret sections 224 and 251(b)(4) of the Act in harmony to create a reciprocal system of infrastructure access rules in which incumbent LECs, pursuant to section 251(b)(4) of the Act, are guaranteed access to poles owned or controlled by competitive LECs and vice versa, subject to the rates, terms, and conditions for pole attachments described in section 224. In making this finding, the Order evaluated arguments that this interpretation will discourage deployment or create additional burdens for competitive LECs. However, the Order found that the disparate treatment of incumbent LECs and competitive LECs prevents incumbent LECs from gaining access to competitive LEC-controlled infrastructure and in doing so dampens the incentives for all LECs to build and deploy the infrastructure necessary for advanced communications services.

157. Network Change Notifications. First, for rules pertaining to network changes generally, the Order eliminates the prohibition on incumbent LEC disclosures regarding potential network changes prior to public notice of those changes, but retains the procedures for objecting to short-term notices of network changes. In adopting this change, the Order considered, but rejected, suggestions that the Commission should require incumbent LECs to provide notice of network changes to all interconnecting entities before providing public notice, and arguments that competing service providers might use the objection process to unwarrantedly delay a network change. Second, recognizing the uniqueness of copper retirements, the Order retains the distinction between copper retirements and other types of planned network changes. In making this determination, the Commission evaluated, but discounted, arguments that copper retirements require no special treatment as compared to other types of network changes. Third, the Order reduces the regulatory burdens associated with the copper retirement notice process by (i) narrowing the definition of copper retirement, (ii) reducing the scope of recipients and the required content of direct notice, and (iii) reducing the waiting period before an incumbent LEC can implement a planned copper retirement while reinstating the objection and associated resolution procedures previously applicable to copper retirement notices. As explained in the Order, the Commission considered arguments against these rule changes but found that our rules will afford sufficient time to accommodate planned changes and address parties' needs for adequate information and consumer protection. Finally, the Order adopts streamlined copper retirement notice procedures related to force majeure events. In adopting these rules, the Commission considered, but rejected, alternative solutions, including arguments that the Commission should proceed solely via waiver in this context.

158. Section 214(a) Discontinuance Process. The Order streamlines the review and approval process for three types of Section 214(a) discontinuance applications, those that: (i) Grandfather low-speed legacy voice and data services; (ii) discontinue previously grandfathered low-speed legacy data services; and (iii) discontinue low-speed legacy services with no customers. The Order streamlines the approval process for discontinuance applications to grandfather low-speed legacy services by adopting a uniform reduced public comment period of 10 days and an automatic grant period of 25 days for all carriers seeking to grandfather legacy low-speed services for existing customers. For applications seeking authorization to discontinue legacy data services below 1.544 Mbps that have previously been grandfathered for a period of at least 180 days, the Order applies a uniform reduced public comment period of 10 days and an auto-grant period of 31 days to all such applications. For applications to discontinue low-speed legacy voice and data services below 1.544 Mbps for which the carrier has had no customers and no request for service for at least a 30-day period prior to filing, the Order adopts a 15-day auto-grant period. In adopting these rules, the Order evaluated alternative approaches, and found that the adopted streamlining rules strike the appropriate balance to provide relief to carriers who wish to transition away from the provision of legacy services for which there is rapidly decreasing demand, while at the same time ensuring that potential consumers of these services have readily available alternatives. Finally, the Order clarifies that a carrier need not seek approval from the Commission to discontinue, reduce, or impair a service pursuant to section 214(a) of the Act when a change in service directly affects only carrier-customers. In adopting this clarification, the Commission noted that in many circumstances the carrier-customer will be able to obtain wholesale service from another source without causing a disruption of service for the end user, and found that this less burdensome approach better conforms with the text of the Act and Commission precedent. The Order therefore rejects arguments that the Commission should retain the 2015 interpretation predicated on the view that as a practical matter, if a carrier discontinues wholesale service to a carrier-customer, that carrier-customer may be unable to obtain wholesale service from another provider and may have no choice but to discontinue service to its end users, resulting in a downstream discontinuance of retail service.

G. Report to Congress

159. The Commission will send a copy of the Report and Order, including this FRFA, in a report to be sent to Congress pursuant to the Congressional Review Act. In addition, the Commission will send a copy of the Report and Order, including this FRFA, to the Chief Counsel for Advocacy of the SBA. A copy of the Order and FRFA (or summaries thereof) will also be published in the Federal Register.

V. Procedural Matters A. Congressional Review Act

160. The Commission will send a copy of this Report and Order, including a copy of the Final Regulatory Flexibility Certification, in a report to Congress and the Government Accountability Office pursuant to the Congressional Review Act. See 5 U.S.C. 801(a)(1)(A). In addition, the Report and Order and this final certification will be sent to the Chief Counsel for Advocacy of the SBA, and will be published in the Federal Register.

B. Final Regulatory Flexibility Analysis

161. As required by the Regulatory Flexibility Act of 1980 (RFA), the Commission has prepared a Final Regulatory Flexibility Analysis (FRFA) relating to this Report and Order. The FRFA is contained in Section IV supra.

C. Paperwork Reduction Act of 1995 Analysis

162. The Report and Order contains modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. It will be submitted to the Office of Management and Budget (OMB) for review under section 3507(d) of the PRA. OMB, the general public, and other Federal agencies are invited to comment on the new or modified information collection requirements contained in this proceeding. In addition, we note that pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), we previously sought specific comment on how the Commission might further reduce the information collection burden for small business concerns with fewer than 25 employees.

163. In this document, we have assessed the effects of reforming our pole attachment regulations, network change notification procedures, and section 214(a) discontinuance rules, and find that doing so will serve the public interest and is unlikely to directly affect businesses with fewer than 25 employees.

D. Contact Person

164. For further information about this proceeding, please contact Michele Levy Berlove, FCC Wireline Competition Bureau, Competition Policy Division, Room 5-C313, 445 12th Street SW, Washington, DC 20554, at (202) 418-1477, [email protected], or Michael Ray, FCC Wireline Competition Bureau, Competition Policy Division, Room 5-C235, 445 12th Street SW, Washington, DC 20554, (202) 418-0357, [email protected]

VI. Ordering Clauses

165. Accordingly, it is ordered that, pursuant to sections 1-4, 201, 202, 214, 224, 251, and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 151-154, 201, 202, 214, 224, 251, and 303(r), this Report and Order is adopted.

166. It is further ordered that parts 1, 51, and 63 of the Commission's rules are amended as set forth in Appendix A of the Report and Order, and that any such rule amendments that contain new or modified information collection requirements that require approval by the Office of Management and Budget under the Paperwork Reduction Act shall be effective after announcement in the Federal Register of Office of Management and Budget approval of the rules, and on the effective date announced therein.

167. It is further ordered that this Report and Order shall be effective January 29, 2018, except for 47 CFR 1.1424, 51.325(a)(4) and (c) through (e), 51.329(c)(1), 51.332, 51.333(a) through (c), (f), and (g), 63.60(d) through (i), and 63.71(k), which contain information collection requirements that have not been approved by OMB. The Federal Communications Commission will publish a document in the Federal Register announcing the effective date.

168. It is further ordered that the Commission's Consumer & Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Report and Order to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

169. It is further ordered that the Commission's Consumer & Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Report and Order, including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

List of Subjects 47 CFR Part 1

Practice and procedure.

47 CFR Part 51

Interconnection.

47 CFR Part 63

Extension of lines, new lines, and discontinuance, reduction, outage and impairment of service by common carriers; and Grants of recognized private operating agency status.

Federal Communications Commission. Marlene H. Dortch, Secretary. Final Rules

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR parts 1, 51, and 63 as follows:

PART 1—PRACTICE AND PROCEDURE 1. The authority for part 1 continues to read as follows: Authority:

47 U.S.C. 151, 154(i) and (j), 155, 157, 160, 201, 224, 225, 227, 303, 309, 310v, 332, 1403, 1404, 1451, 1452, and 1455.

Subpart J—Pole Attachment Complaint Procedures 2. Amend § 1.1409 by revising paragraph (c) to read as follows:
§ 1.1409 Commission consideration of the complaint.

(c) The Commission shall determine whether the rate, term or condition complained of is just and reasonable. For the purposes of this paragraph (c), a rate is just and reasonable if it assures a utility the recovery of not less than the additional costs of providing pole attachments, nor more than an amount determined by multiplying the percentage of the total usable space, or the percentage of the total duct or conduit capacity, which is occupied by the pole attachment by the sum of the operating expenses and actual capital costs of the utility attributable to the entire pole, duct, conduit, or right-of-way. The Commission shall exclude from actual capital costs those reimbursements received by the utility from cable operators and telecommunications carriers for non-recurring costs.

3. Revise § 1.1424 to read as follows:
§ 1.1424 Complaints by incumbent local exchange carriers.

Complaints by an incumbent local exchange carrier (as defined in 47 U.S.C. 251(h)) or an association of incumbent local exchange carriers alleging that it has been denied access to a pole, duct, conduit, or right-of-way owned or controlled by a local exchange carrier or that a rate, term, or condition for a utility pole attachment is not just and reasonable shall follow the same complaint procedures specified for other pole attachment complaints in this part, as relevant. In complaint proceedings where an incumbent local exchange carrier (or an association of incumbent local exchange carriers) claims that it is similarly situated to an attacher that is a telecommunications carrier (as defined in 47 U.S.C. 251(a)(5)) or a cable television system for purposes of obtaining comparable rates, terms or conditions, the incumbent local exchange carrier shall bear the burden of demonstrating that it is similarly situated by reference to any relevant evidence, including pole attachment agreements. If a respondent declines or refuses to provide a complainant with access to agreements or other information upon reasonable request, the complainant may seek to obtain such access through discovery. Confidential information contained in any documents produced may be subject to the terms of an appropriate protective order.

4. Add § 1.1425 to read as follows:
§ 1.1425 Review period for pole access complaints.

(a) Except in extraordinary circumstances, final action on a complaint where a cable television system operator or provider of telecommunications service claims that it has been denied access to a pole, duct, conduit, or right-of-way owned or controlled by a utility should be expected no later than 180 days from the date the complaint is filed with the Commission.

(b) The Enforcement Bureau shall have the discretion to pause the 180-day review period in situations where actions outside the Enforcement Bureau's control are responsible for delaying review of a pole access complaint.

PART 51—INTERCONNECTION 5. The authority for part 51 continues to read as follows: Authority:

47 U.S.C. 151-55, 201-05, 207-09, 218, 220, 225-27, 251-54, 256, 271, 303(r), 332, 1302.

6. Amend § 51.325 by revising paragraph (a)(4), removing paragraphs (c) and (e), and redesignating paragraph (d) as (c) to read as follows:
§ 51.325 Notice of network changes: Public notice requirement.

(a) * * *

(4) Will result in a copper retirement, which is defined for purposes of this subpart as:

(i) The removal or disabling of copper loops, subloops, or the feeder portion of such loops or subloops; or

(ii) The replacement of such loops with fiber-to-the-home loops or fiber-to-the-curb loops, as those terms are defined in § 51.319(a)(3).

7. Amend § 51.329 by revising paragraph (c)(1) to read as follows:
§ 51.329 Notice of network changes: Methods for providing notice.

(c) * * *

(1) The public notice or certification must be labeled with one of the following titles, as appropriate: “Public Notice of Network Change Under Rule 51.329(a),” “Certification of Public Notice of Network Change Under Rule 51.329(a),” “Short Term Public Notice Under Rule 51.333(a),” “Certification of Short Term Public Notice Under Rule 51.333(a),” “Public Notice of Copper Retirement Under Rule 51.333,” or “Certification of Public Notice of Copper Retirement Under Rule 51.333.”

§ 51.332 [Removed]
8. Remove § 51.332. 9. Amend § 51.333 by revising the section heading and paragraphs (a) introductory text, (a)(1), (b), and (c) heading and introductory text and adding paragraphs (f) and (g) to read as follows:
§ 51.333 Notice of network changes: Short term notice, objections thereto and objections to copper retirement notices.

(a) Certificate of service. If an incumbent LEC wishes to provide less than six months' notice of planned network changes, or provide notice of a planned copper retirement, the public notice or certification that it files with the Commission must include a certificate of service in addition to the information required by § 51.327(a) or § 51.329(a)(2), as applicable. The certificate of service shall include:

(1) A statement that, at least five business days in advance of its filing with the Commission, the incumbent LEC served a copy of its public notice upon each telephone exchange service provider that directly interconnects with the incumbent LEC's network, provided that, with respect to copper retirement notices, such service may be made by postings on the incumbent LEC's website if the directly interconnecting telephone exchange service provider has agreed to receive notice by website postings; and

(b) Implementation date. The Commission will release a public notice of filings of such short term notices or copper retirement notices. The effective date of the network changes referenced in those filings shall be subject to the following requirements:

(1) Short term notice. Short term notices shall be deemed final on the tenth business day after the release of the Commission's public notice, unless an objection is filed pursuant to paragraph (c) of this section.

(2) Copper retirement notice. Notices of copper retirement, as defined in § 51.325(a)(4), shall be deemed final on the 90th day after the release of the Commission's public notice of the filing, unless an objection is filed pursuant to paragraph (c) of this section, except that notices of copper retirement involving copper facilities not being used to provision services to any customers shall be deemed final on the 15th day after the release of the Commission's public notice of the filing. Incumbent LEC copper retirement notices shall be subject to the short-term notice provisions of this section, but under no circumstances may an incumbent LEC provide less than 90 days' notice of such a change except where the copper facilities are not being used to provision services to any customers.

(c) Objection procedures for short term notice and copper retirement notices. An objection to an incumbent LEC's short term notice or to its copper retirement notice may be filed by an information service provider or telecommunications service provider that directly interconnects with the incumbent LEC's network. Such objections must be filed with the Commission, and served on the incumbent LEC, no later than the ninth business day following the release of the Commission's public notice. All objections filed under this section must:

(f) Resolution of objections to copper retirement notices. An objection to a notice that an incumbent LEC intends to retire copper, as defined in § 51.325(a)(4) shall be deemed denied 90 days after the date on which the Commission releases public notice of the incumbent LEC filing, unless the Commission rules otherwise within that time. Until the Commission has either ruled on an objection or the 90-day period for the Commission's consideration has expired, an incumbent LEC may not retire those copper facilities at issue.

(g) Limited exemption from advance notice and timing requirements for copper retirements—(1) Force majeure events. (i) Notwithstanding the requirements of this section, if in response to a force majeure event, an incumbent LEC invokes its disaster recovery plan, the incumbent LEC will be exempted during the period when the plan is invoked (up to a maximum 180 days) from all advanced notice and waiting period requirements associated with copper retirements that result in or are necessitated as a direct result of the force majeure event.

(ii) As soon as practicable, during the exemption period, the incumbent LEC must continue to comply with § 51.325(a), include in its public notice the date on which the carrier invoked its disaster recovery plan, and must communicate with other directly interconnected telephone exchange service providers to ensure that such carriers are aware of any changes being made to their networks that may impact those carriers' operations.

(iii) If an incumbent LEC requires relief from the copper retirement notice requirements longer than 180 days after it invokes the disaster recovery plan, the incumbent LEC must request such authority from the Commission. Any such request must be accompanied by a status report describing the incumbent LEC's progress and providing an estimate of when the incumbent LEC expects to be able to resume compliance with the copper retirement notice requirements.

(iv) For purposes of this section, “force majeure” means a highly disruptive event beyond the control of the incumbent LEC, such as a natural disaster or a terrorist attack.

(v) For purposes of this section, “disaster recovery plan” means a disaster response plan developed by the incumbent LEC for the purpose of responding to a force majeure event.

(2) Other events outside an incumbent LEC's control. (i) Notwithstanding the requirements of this section, if in response to circumstances outside of its control other than a force majeure event addressed in paragraph (g)(1) of this section, an incumbent LEC cannot comply with the timing requirement set forth in paragraph (b)(2) of this section, hereinafter referred to as the waiting period, the incumbent LEC must give notice of the copper retirement as soon as practicable and will be entitled to a reduced waiting period commensurate with the circumstances at issue.

(ii) A copper retirement notice subject to paragraph (g)(2) of this section must include a brief explanation of the circumstances necessitating the reduced waiting period and how the incumbent LEC intends to minimize the impact of the reduced waiting period on directly interconnected telephone exchange service providers.

(iii) For purposes of this section, circumstances outside of the incumbent LEC's control include federal, state, or local municipal mandates and unintentional damage to the incumbent LEC's copper facilities not caused by the incumbent LEC.

PART 63—EXTENSION OF LINES, NEW LINES, AND DISCONTINUANCE, REDUCTION, OUTAGE AND IMPAIRMENT OF SERVICE BY COMMON CARRIERS; AND GRANTS OF RECOGNIZED PRIVATE OPERATING AGENCY STATUS 10. The authority for part 63 continues to read as follows: Authority:

Sections 1, 4(i), 4(j), 10, 11, 201-205, 214, 218, 403 and 651 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), 160, 201-205, 214, 218, 403, and 571, unless otherwise noted.

11. Amend § 63.60 by redesignating paragraphs (d) through (h) as (e) through (i) and adding new paragraph (d) to read as follows:
§ 63.60 Definitions.

(d) Grandfather means to maintain the provision of a service to existing customers while ceasing to offer that service to new customers.

12. Amend § 63.71 by adding paragraph (k) to read as follows:
§ 63.71 Procedures for discontinuance, reduction or impairment of service by domestic carriers.

(k) The following requirements are applicable to certain legacy services operating at speeds lower than 1.544 Mbps:

(1) Notwithstanding paragraphs (a)(5)(i) and (ii) of this section, if any carrier, dominant or non-dominant, seeks to:

(i) Grandfather legacy voice or data service operating at speeds lower than 1.544 Mbps; or

(ii) Discontinue, reduce, or impair legacy data service operating at speeds lower than 1.544 Mbps that has been grandfathered for a period of no less than 180 days consistent with the criteria established in paragraph (k)(4) of this section, the notice shall state: The FCC will normally authorize this proposed discontinuance of service (or reduction or impairment) unless it is shown that customers would be unable to receive service or a reasonable substitute from another carrier or that the public convenience and necessity is otherwise adversely affected. If you wish to object, you should file your comments as soon as possible, but no later than 10 days after the Commission releases public notice of the proposed discontinuance. You may file your comments electronically through the FCC's Electronic Comment Filing System using the docket number established in the Commission's public notice for this proceeding, or you may address them to the Federal Communications Commission, Wireline Competition Bureau, Competition Policy Division, Washington, DC 20554, and include in your comments a reference to the § 63.71 Application of (carrier's name). Comments should include specific information about the impact of this proposed discontinuance (or reduction or impairment) upon you or your company, including any inability to acquire reasonable substitute service.

(2) For applications to discontinue, reduce, or impair a legacy data service operating at speeds lower than 1.544 Mbps that has been grandfathered for a period of no less than 180 days, in order to be eligible for automatic grant under paragraph (k)(4) of this section, an applicant must include in its application a statement confirming that it received Commission authority to grandfather the service at issue at least 180 days prior to filing the current application.

(3) An application filed by any carrier seeking to grandfather legacy voice or data service operating at speeds lower than 1.544 Mbps for existing customers shall be automatically granted on the 25th day after its filing with the Commission without any Commission notification to the applicant unless the Commission has notified the applicant that the grant will not be automatically effective.

(4) An application filed by any carrier seeking to discontinue, reduce, or impair a legacy data service operating at speeds lower than 1.544 Mbps that has been grandfathered for 180 days or more preceding the filing of the application, shall be automatically granted on the 31st day after its filing with the Commission without any Commission notification to the applicant, unless the Commission has notified the applicant that the grant will not be automatically effective.

(5) An application seeking to discontinue, reduce, or impair a legacy voice or data service operating at speeds lower than 1.544 Mbps for which the requesting carrier has had no customers and no reasonable requests for service during the 30-day period immediately preceding the filing of the application, shall be automatically granted on the 15th day after its filing with the Commission without any Commission notification to the applicant, unless the Commission has notified the applicant that the grant will not be automatically effective.

[FR Doc. 2017-27198 Filed 12-27-17; 8:45 am] BILLING CODE 6712-01-P
FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 73 [MB Docket No. 17-106, FCC 17-137] Elimination of Main Studio Rule; Correction AGENCY:

Federal Communications Commission.

ACTION:

Final rule; correction.

SUMMARY:

The Federal Communications Commission (FCC) is correcting an announcement of effective date for a final rule that appeared in the Federal Register on December 18, 2017. In the last sentence of the Supplementary Information section of that document, the stated effective date of January 8, 2017 should have been January 8, 2018.

DATES:

Effective January 8, 2018.

FOR FURTHER INFORMATION CONTACT:

Diana Sokolow, Policy Division, Media Bureau, at (202) 418-2120, or email: [email protected]

SUPPLEMENTARY INFORMATION:

In FR Doc. 2017-27197 appearing on page 59987 of the Federal Register on Monday, December 18, 2017, the last sentence of the “Supplementary Information” section is corrected to read as follows:

“Because we received OMB approval for the non-substantive change request in advance of the effective date for the rule changes that did not require OMB approval, all of the rule changes contained in the Commission's Order, FCC 17-137, will share the same effective date of January 8, 2018.”

Federal Communications Commission. Marlene H. Dortch, Secretary.
[FR Doc. 2017-27981 Filed 12-27-17; 8:45 am] BILLING CODE 6712-01-P
DEPARTMENT OF DEFENSE Defense Acquisition Regulations System 48 CFR Parts 204, 211, 212, 217, 218, 219, 222, 225, 227, 237, 239, 242, 243, 245, and 252 [Docket DARS-2017-0022] Defense Federal Acquisition Regulation Supplement: Technical Amendments AGENCY:

Defense Acquisition Regulations System, Department of Defense (DoD).

ACTION:

Final rule.

SUMMARY:

DoD is making technical amendments to the Defense Federal Acquisition Regulation Supplement (DFARS) to provide needed editorial changes.

DATES:

Effective December 28, 2017.

FOR FURTHER INFORMATION CONTACT:

Ms. Jennifer L. Hawes, Defense Acquisition Regulations System, OUSD(AT&L)DPAP(DARS), Room 3B941, 3060 Defense Pentagon, Washington, DC 20301-3060. Telephone 571-372-6115; facsimile 571-372-6094.

SUPPLEMENTARY INFORMATION:

This final rule amends the DFARS as follows—

1. Corrects the title of DFARS clause 252.204-7009 at 204.7304(b) and 212.301(f)(ii)(B) to add the missing words “Reported Cyber Incident” to the clause title.

2. Revises the following DFARS sections to reflect updated references and cite the applicable volumes of DoD Manual 4140.01, which replaced DoD 4140.1-R. The updated references are cited at: DFARS 211.275-2(a)(1), 217.7001(b), 217.7002(b), 217.7003(a), 217.7506, 217.7601(b), 239.7001, 242.1105(1)(i), and 252.211-7006(b)(1)(i).

3. Corrects cross references at DFARS 218.271(d), 225.7501(a)(2)(i), 227.7103-10(a)(1), 237.102-75, and 252.247-7020 introductory text.

4. Provides guidance at DFARS 219.705-4(d) that contracting officers may use the checklist at DFARS Procedures, Guidance, and Information (PGI) 219.705-4 when reviewing subcontracting plans, and to see PGI 219.705-6(f) for guidance on reviewing subcontracting reports.

5. Revises DFARS 222.406-9(c)(3) to state that the Department of Labor will retain withheld funds pending completion of an investigation or other administrative proceedings in lieu of the Comptroller General. On November 25, 2014, Federal Acquisition Regulation (FAR) final rule 2014-011 was published in the Federal Register (79 FR 70342) to implement the Streamlining Claims Processing for Federal Contractor Employees Act, which transferred certain functions from the Government Accountability Office to the Department of Labor. This update aligns DFARS 222.406-9(c)(3) with FAR 22.406-9(c)(3).

6. Corrects, at DFARS 225.870-4(c)(3), the titles of DFARS clauses 252.215-7003 and 252.215-7004 by adding the missing words “Submission of” to each clause title.

7. Corrects a reference at DFARS 242.7301(b).

8. Makes a minor editorial change to DFARS 242.7503 by adding “or” after the semicolon in paragraph (a).

9. Corrects a typographical error at DFARS 243.204-70-3(b) by correcting the spelling of “contracting”.

10. Renumbers DFARS section 245.103-73 as 245.103-74. Provides new guidance at DFARS 245.103-73 for contracting officers to see DFARS Procedures, Guidance, and Information (PGI) 245.103-73 for information on reporting Government property under sustainment contracts.

11. Makes an editorial correction to DFARS clause 252.246-7008, by adding a comma in paragraph (e).

12. Provide updated internet links at DFARS 252.245-7002(b)(1) and 252.245-7004(b) and (b)(1)(iv).

List of Subjects in 48 CFR Parts 204, 211, 212, 217, 218, 219, 222, 225, 227, 237, 239, 242, 243, 245, and 252

Government procurement.

Jennifer L. Hawes, Regulatory Control Officer Defense Acquisition Regulations System.

Therefore, 48 CFR parts 204, 211, 212, 217, 218, 219, 222, 225, 227, 237, 239, 242, 243, 245, and 252 are amended as follows:

1. The authority citation for 48 CFR parts 204, 211, 212, 217, 218, 219, 222, 225, 227, 237, 239, 242, 243, 245, and 252 continues to read as follows: Authority:

41 U.S.C. 1303 and 48 CFR chapter 1.

PART 204—ADMINISTRATIVE MATTERS
204.7304 [Amended]
2. Amend section 204.7304(b) by removing “Limitations on the Use or Disclosure of Third-Party Contractor Information” and adding “Limitations on the Use or Disclosure of Third-Party Contractor Reported Cyber Incident Information” in its place. PART 211—DESCRIBING AGENCY NEEDS
211.275-2 [Amended]
3. Amend section 211.275-2(a)(1) introductory text by removing “DoD 4140.1-R, DoD Supply Chain Materiel Management Regulation, AP1.1.11” and adding “DoD Manual 4140.01, Volume 6, DoD Supply Chain Materiel Management Procedures: Materiel Returns, Retention, and Disposition” in its place. PART 212—ACQUISITION OF COMMERCIAL ITEMS
212.301 [Amended]
4. Amend section 212.301(f)(ii)(B) by removing “Limitations on the Use or Disclosure of Third-Party Contractor Information” and adding “Limitations on the Use or Disclosure of Third-Party Contractor Reported Cyber Incident Information” in its place. PART 217—SPECIAL CONTRACTING METHODS
217.7001 [Amended]
5. Amend section 217.7001(b) by removing “DoD 4140.1-R, DoD Materiel Management Regulation, Chapter 9.5, Exchange or Sale of Nonexcess Personal Property” and adding “DoD Manual 4140.01, Volume 9, DoD Supply Chain Materiel Management Procedures: Materiel Programs” in its place.
217.7002 [Amended]
6. Amend section 217.7002(b) by removing “DoD 4140.1-R, Chapter 9.5” and adding “DoD Manual 4140.01, Volume 9, DoD Supply Chain Materiel Management Procedures: Materiel Programs” in its place.
217.7003 [Amended]
7. Amend section 217.7003(a) by removing “DoD 4140.1-R, Chapter 9.5” and adding “DoD Manual 4140.01, Volume 9, DoD Supply Chain Materiel Management Procedures: Materiel Programs” in its place.
217.7506 [Amended]
8. Amend section 217.7506 by removing “DoD 4140.1-R, DoD Supply Chain Materiel Management Regulation, Chapter 8, Section C8.3” and adding “DoD Manual 4140.01, Volume 9, DoD Supply Chain Materiel Management Procedures: Materiel Programs” in its place.
217.7601 [Amended]
9. Amend section 217.7601(b) by removing “DoD 4140.1-R, DoD Supply Chain Materiel Management Regulation, Chapter 2, Section C2.2” and adding “DoD Manual 4140.01, Volume 2, DoD Supply Chain Materiel Management Procedures: Demand and Supply Planning” in its place. PART 218—EMERGENCY ACQUISITIONS
218.271 [Amended]
10. Amend 218.271(d) by removing “FAR 13.500(e)” and adding “FAR 13.500(c)(1)” in its place. PART 219—SMALL BUSINESS PROGRAMS 11. Revise section 219.705-4 to read as follows:
219.705-4 Reviewing the subcontracting plan.

(d)(i) Challenge any subcontracting plan that does not contain positive goals. A small disadvantaged business goal of less than five percent must be approved one level above the contracting officer.

(ii) The contracting officer may use the checklist at PGI 219.705-4 when reviewing subcontracting plans in accordance with FAR 19.705-4.

12. Add section 219.705-6 to read as follows:
219.705-6 Postaward responsibilities of the contracting officer.

(f) See PGI 219.705-6(f) for guidance on reviewing subcontracting reports.

PART 222—APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
222.406-9 [Amended]
13. Amend section 222.406-9(c)(3) by removing “Department of Labor has given blanket approval to forward withheld funds to the Comptroller General” and adding “Department of Labor will retain withheld funds” in its place. PART 225—FOREIGN ACQUISITION 14. Revise section 225.870-4(c)(3) to read as follows:
225.870-4 Contracting procedures.

(c) * * *

(3) The contracting officer shall use the provision at 252.215-7003, Requirement for Submission of Data Other Than Certified Cost or Pricing Data—Canadian Commercial Corporation, and the clause at 252.215-7004, Requirement for Submission of Data Other Than Certified Cost or Pricing Data—Modifications—Canadian Commercial Corporation, as prescribed at 215.408(3)(i) and (ii), respectively.

225.7501 [Amended]
15. Amend section 225.7501(a)(2)(i) by removing “or 225.104(a)”. PART 227—PATENTS, DATA, AND COPYRIGHTS
227.7103-10 [Amended]
16. Amend section 227.7103-10(a)(1) by removing “15.607” and adding “15.306” in its place. PART 237—SERVICE CONTRACTING
237.102-75 [Amended]
17. Amend section 237.102-75 by removing “Chapter 14” and adding “Chapter 10” in its place. PART 239—ACQUISITION OF INFORMATION TECHNOLOGY
239.7001 [Amended]
18. Amend section 239.7001 by removing “DoD 4140.1-R, DoD Supply Chain Materiel Management Regulation, Chapter 9, Section C9.5” and adding “DoD Manual 4140.01, Volume 9, DoD Supply Chain Materiel Management Procedures: Materiel Programs” in its place. PART 242—CONTRACT ADMINISTRATION AND AUDIT SERVICES
242.1105 [Amended]
19. Amend section 242.1105(1)(i) by removing “DoD 4140.1-R, DoD Materiel Management Regulation” and adding “DoD Manual 4140.01, Volume 5, DoD Supply Chain Materiel Management Procedures: Delivery of Materiel” in its place.
242.7301 [Amended]
20. Amend section 242.7301(b) by removing “Agency” and adding “Agent” in its place.
242.7503 [Amended]
21. Amend section 242.7503 by— a. In paragraph (a) adding “or” after the semicolon; and b. In paragraph (b) removing “]” at the end of the sentence. PART 243—CONTRACT MODIFICATIONS
243.204-70-3 [Amended]
22. Amend section 243.204-70-3(b) by removing “contacting” and adding “contracting” in its place. PART 245—GOVERNMENT PROPERTY
245.103-73 [REDESIGNATED AS 245.103-74]
23. Redesignate section 245.103-73 as 245.103-74. 24. Add new section 245.103-73 to read as follows:
245.103-73 Government property under sustainment contracts.

See PGI 245.103-73 for information on the reporting requirements for Government inventory held by contractors under sustainment contracts in accordance with DoD Manual 4140.01, Volume 6, DoD Supply Chain Materiel Management Procedures: Materiel Returns, Retention, and Disposition.

PART 252—SOLICITATION PROVISIONS AND CONTRACT CLAUSES
252.211-7006 [Amended]
25. Amend section 252.211-7006 by— a. Removing the clause date “(JUN 2016)” and adding “(DEC 2017)” in its place; and b. In paragraph (b)(1)(i), removing “DoD 4140.1-R, DoD Supply Chain Material Management Regulation, AP1.1.11” and adding “DoD Manual 4140.01, Volume 6, DoD Supply Chain Materiel Management Procedures: Materiel Returns, Retention, and Disposition” in its place.
252.245-7002 [Amended]
26. Amend section 252.245-7002 by— a. Removing the clause date “(APR 2012)” and adding “(DEC 2017)” in its place; and b. In paragraph (b)(1), removing “http://www.dcma.mil/aboutetools.cfm” and adding “http://www.dcma.mil/WBT/propertyloss/” in its place.
252.245-7004 [Amended]
27. Amend section 252.245-7004 by— a. Removing the clause date “(SEP 2016)” and adding “(DEC 2017)” in its place; b. In paragraph (b), introductory text, removing “http://www.dcma.mil/DCMAIT/cbt/PCARSS/index.cfm” and adding “http://www.dcma.mil/WBT/PCARSS/” in its place; and c. In paragraph (b)(1)(iv), removing “http://www2.dla.mil/j-6/dlmso/elibrary/manuals/dlm/dlm_pubs.asp#” and adding “http://www.dla.mil/HQ/InformationOperations/DLMS/elibrary/manuals/MILSTRAP/” in its place.
252.246-7008 [Amended]
28. Amend section 252.246-7008 by— a. Removing the clause date “(OCT 2016)” and adding “(DEC 2017)” in its place; and b. In paragraph (e), adding a comma after the word “items”.
252.247-7020 [Amended]
29. Amend the section's introductory text by removing “247.270-3(o)” and adding “247.271-3(n)” in its place.
[FR Doc. 2017-27782 Filed 12-27-17; 8:45 am] BILLING CODE 5001-06-P
DEPARTMENT OF DEFENSE Defense Acquisition Regulations System 48 CFR Parts 225 and 252 [Docket DARS-2017-0017] RIN 0750-AJ65 Defense Federal Acquisition Regulation Supplement: Trade Agreements Thresholds (DFARS Case 2018-D001) AGENCY:

Defense Acquisition Regulations System, Department of Defense (DoD).

ACTION:

Final rule.

SUMMARY:

DoD is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to incorporate revised thresholds for application of the World Trade Organization Government Procurement Agreement and the Free Trade Agreements, as determined by the United States Trade Representative.

DATES:

Effective: January 1, 2018.

FOR FURTHER INFORMATION CONTACT:

Ms. Amy G. Williams, 571-372-6106.

SUPPLEMENTARY INFORMATION:

I. Background

This rule adjusts thresholds for application of the World Trade Organization (WTO) Government Procurement Agreement (GPA) and Free Trade Agreements (FTA) as determined by the United States Trade Representative (USTR). The trade agreements thresholds are adjusted every two years according to predetermined formulae set forth in the agreements. The USTR has specified the following new thresholds in the Federal Register (82 FR 58248, December 11, 2017):

Trade Agreement Supply
  • Contract
  • (equal to or
  • exceeding)
  • Construction
  • Contract
  • (equal to or
  • exceeding)
  • WTO GPA $180,000 $6,932,000 FTAs: Australia FTA 80,317 6,932,000 Bahrain FTA 180,000 10,441,216 CAFTA-DR (Costa Rica, Dominican Republic, El Salvador, Guatemala, Honduras, and Nicaragua) 80,317 6,932,000 Chile FTA 80,317 6,932,000 Columbia 80,317 6,932,000 Korea 100,000 6,932,000 Morocco FTA 180,000 6,932,000 NAFTA: —Canada 25,000 10,441,216 —Mexico 80,317 10,441,216 Panama FTA 180,000 6,932,000 Peru FTA 180,000 6,932,000 Singapore FTA 80,317 6,932,000
    II. Publication of This Final Rule for Public Comment Is Not Required by Statute

    The statute that applies to the publication of the Federal Acquisition Regulation (FAR) is 41 U.S.C. 1707 entitled “Publication of Proposed Regulations.” Paragraph (a)(1) of the statute requires that a procurement policy, regulation, procedure or form (including an amendment or modification thereof) must be published for public comment if it relates to the expenditure of appropriated funds, and has either a significant effect beyond the internal operating procedures of the agency issuing the policy, regulation, procedure, or form, or has a significant cost or administrative impact on contractors or offerors. This final rule is not required to be published for public comment, because it does not constitute a significant DFARS revision within the meaning of FAR 1.501-1 and does not have a significant cost or administrative impact on contractors or offerors. This final rule is not required to be published for public comment, because it only adjusts the thresholds according to predetermined formulae to adjust for changes in economic conditions, thus maintaining the status quo, without significant effect beyond the internal operating procedures of the Government.

    III. Applicability to Contracts at or Below the Simplified Acquisition Threshold and for Commercial Items, Including Commercially Available Off-the-Shelf Items

    This rule amends the DFARS to revise thresholds for application of the WTO GPA and the FTA. The revisions do not add any new burdens or impact applicability of clauses and provisions at or below the simplified acquisition threshold, or to commercial items.

    IV. Executive Orders 12866 and 13563

    Executive Order (E.O.) 12866, Regulatory Planning and Review, and E.O. 13563, Improving Regulation and Regulatory Review, 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). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. The Office of Management and Budget, Office of Information and Regulatory Affairs (OIRA), has determined that this is not a significant regulatory action as defined under section 3(f) of E.O. 12866 and, therefore, was not subject to review under section 6(b). This rule is not a major rule as defined at 5 U.S.C. 804(2).

    V. Executive Order 13771

    This rule is not subject to E.O. 13771, Reducing Regulation and Controlling Regulatory Costs, because this rule is not a significant regulatory action under E.O. 12866.

    VI. Regulatory Flexibility Act

    The Regulatory Flexibility Act does not apply to this rule because this final rule does not constitute a significant FAR revision within the meaning of FAR 1.501-1, and 41 U.S.C. 1707 and does not require publication for public comment.

    VII. Paperwork Reduction Act

    The Paperwork Reduction Act (44 U.S.C chapter 35) does apply, because the final rule affects the prescriptions for use of the certification and information collection requirements in the provision at DFARS 252.225-7035, Buy American-Free Trade Agreements-Balance of Payments Program Certificate, and the certification and information collection requirements in the provision at DFARS 252.225-7018, Photovoltaic Devices—Certificate. The changes to these DFARS clauses do not impose additional information collection requirements to the paperwork burden previously approved under OMB Control Number 0704-0229, entitled “DFARS Part 225, Foreign Acquisition and related clauses,” because the threshold changes are in line with inflation and maintain the status quo.

    List of Subjects in 48 CFR Parts 225 and 252

    Government procurement.

    Jennifer L. Hawes, Regulatory Control Officer, Defense Acquisition Regulations System.

    Therefore, 48 CFR parts 225 and 252 are amended as follows:

    1. The authority citation for 48 CFR parts 225 and 252 continues to read as follows: Authority:

    41 U.S.C. 1303 and 48 CFR chapter 1.

    PART 225—FOREIGN ACQUISITION
    225.1101 [Amended]
    2. Amend section 225.1101 by— a. In paragraph (6) introductory text, removing “$191,000” and adding “$180,000” in its place; b. In paragraph (10)(i) introductory text, removing “$191,000” and adding “$180,000” in its place; c. In paragraph (10)(i)(A), removing “$191,000” and adding “$180,000” in its place; d. In paragraph (10)(i)(B), removing “$77,533” and adding “$80,317” in its place; e. In paragraph (10)(i)(C), removing “$191,000” and adding “$180,000” in its place; and f. In paragraphs (10)(i)(D) through (F), removing “$77,533” wherever it appears and adding “$80,317” in its place.
    225.7017-3 [Amended]
    3. Amend section 225.7017-3, in paragraph (b), by removing “$191,000” and adding “$180,000” in its place.
    225.7017-4 [Amended]
    4. Amend section 225.7017-4, in paragraphs (a)(1) and (b)(1), by removing “$191,000” and adding “$180,000” in both places.
    225.7503 [Amended]
    5. Amend section 225.7503 by— a. In paragraphs (a) and (b) introductory text, removing “$7,358,000” and adding “$6,932,000” in both places; b. In paragraph (b)(1), removing “$10,079,365” and adding “$10,441,216” in its place; c. In paragraph (b)(2), removing “$7,358,000” and adding “$6,932,000” in its place, and removing “$10,079,365” and adding “$10,441,216” in its place; d. In paragraph (b)(3), removing “$10,079,365” and adding “$10,441,216” in its place; and e. In paragraph (b)(4), removing “$7,358,000” and adding “$6,932,000” in its place, and removing “$10,079,365” and adding “$10,441,216” in its place. PART 252—SOLICITATION PROVISIONS AND CONTRACT CLAUSES
    252.225-7017 [Amended]
    6. Amend section 252.225-7017 by— a. Removing clause date “(DEC 2016)” and adding “(JAN 2018)” in its place; b. In paragraphs (c)(2) and (3), removing “$77,533” and adding “$80,317” in its place; and c. In paragraphs (c)(4) and (5), removing “$191,000” and adding “$180,000” in its place.
    252.225-7018 [Amended]
    7. Amend section 252.225-7018 by— a. Removing clause date “(JAN 2016)” and adding “(JAN 2018)” in its place; b. In paragraph (b)(1) introductory text, removing “$191,000” and adding “$180,000” in its place; c. In paragraph (b)(2), removing “$191,000” and adding “$180,000” in its place; d. In paragraphs (d)(3) and (4) introductory text, removing “$77,533” and adding “$80,317” in both places; and e. In paragraphs (d)(5) and (6) introductory text, removing “$191,000” and adding “$180,000” in its place.
    [FR Doc. 2017-27781 Filed 12-27-17; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF DEFENSE Defense Acquisition Regulations System 48 CFR Parts 225 and 252 [Docket DARS-2017-0020] RIN 0750-AJ47 Defense Federal Acquisition Regulation Supplement: New Qualifying Country-Latvia (DFARS Case 2017-D037) AGENCY:

    Defense Acquisition Regulations System, Department of Defense (DoD).

    ACTION:

    Final rule.

    SUMMARY:

    DoD is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to add Latvia as a qualifying country.

    DATES:

    Effective December 28, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Ms. Amy Williams, telephone 571-372-6106.

    SUPPLEMENTARY INFORMATION: I. Background

    DoD is amending the DFARS to add Latvia as a qualifying country. On April 10, 2017, the Secretary of Defense and the Minister of Defense of the Republic of Latvia signed a Reciprocal Defense Procurement Agreement. The Secretary of Defense also signed, on that day, a determination and findings that it is inconsistent with the public interest to apply the restrictions of the Buy American Act to the acquisition of articles, materials, and supplies, produced or manufactured in the Republic of Latvia. The agreement removes discriminatory barriers to procurements of supplies and services produced by industrial enterprises of the other country to the extent mutually beneficial and consistent with national laws, regulations, policies, and international obligations. This agreement does not cover construction or construction material. Latvia is already a designated country under the World Trade Organization Government Procurement Agreement.

    II. Applicability to Contracts at or Below the Simplified Acquisition Threshold and for Commercial Items, Including Commercially Available Off-the-Shelf Items

    This rule only updates the list of qualifying countries in the DFARS by adding the newly qualifying country of Latvia. The definition of “qualifying country” is updated in each of the following clauses; however, this revision does not impact the clause prescriptions for use, or applicability at or below the simplified acquisition threshold, or applicability to commercial items. The clauses are: DFARS 252.225-7001, Buy American and Balance of Payments Program; DFARS 252.225-7002, Qualifying Country Sources as Subcontractors; DFARS 252.225-7012, Preference for Certain Domestic Commodities; DFARS 252.225-7017, Photovoltaic Devices; DFARS 252.225-7021, Trade Agreements; and DFARS 252.225-7036, Buy American—Trade Agreements—Balance of Payments Program.

    III. Publication of This Final Rule for Public Comment Is Not Required by Statute

    The statute that applies to the publication of the Federal Acquisition Regulation (FAR) is 41 U.S.C. 1707 entitled “Publication of Proposed Regulations.” Paragraph (a)(1) of the statute requires that a procurement policy, regulation, procedure or form (including an amendment or modification thereof) must be published for public comment if it relates to the expenditure of appropriated funds, and has either a significant effect beyond the internal operating procedures of the agency issuing the policy, regulation, procedure or form, or has a significant cost or administrative impact on contractors or offerors. This final rule is not required to be published for public comment, because it does not constitute a significant DFARS revision within the meaning of FAR 1.501-1 and does not have a significant cost or administrative impact on contractors or offerors. Latvia is added to the list of 26 other countries that have similar reciprocal defense procurement agreements with DoD. These requirements affect only the internal operating procedures of the Government.

    IV. Executive Orders 12866 and 13563

    Executive Order (E.O.) 12866, Regulatory Planning and Review, and E.O. 13563, Improving Regulation and Regulatory Review, 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). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

    V. Executive Order 13771

    This rule is not subject to E.O. 13771, Reducing Regulation and Controlling Regulatory Costs, because this rule is not a significant regulatory action under E.O. 12866.

    VI. Regulatory Flexibility Act

    The Regulatory Flexibility Act does not apply to this rule, because this final rule does not constitute a significant DFARS revision within the meaning of FAR 1.501-1, and 41 U.S.C. 1707 does not require publication for public comment.

    VII. Paperwork Reduction Act

    The Paperwork Reduction Act (44 U.S.C. chapter 35) does apply, because the final rule affects the definition of “qualifying country” in each of the following clauses: DFARS 252.225-7001, Buy American and Balance of Payments Program; DFARS 252.225-7002, Qualifying Country Sources as Subcontractors; DFARS 252.225-7012, Preference for Certain Domestic Commodities; DFARS 252.225-7017, Photovoltaic Devices; DFARS 252.225-7021, Trade Agreements; and DFARS 252.225-7036, Buy American—Trade Agreements—Balance of Payments Program. The changes to these DFARS clauses do not impose additional information collection requirements to the paperwork burden previously approved under OMB Control Number 0704-0229, entitled “DFARS Part 225, Foreign Acquisition and related clauses,” because the rule merely shifts the category under which items from Latvia must be listed.

    List of Subjects in 48 CFR Parts 225 and 252

    Government procurement.

    Jennifer L. Hawes, Regulatory Control Officer, Defense Acquisition Regulations System.

    Therefore, 48 CFR parts 225 and 252 are amended as follows:

    1. The authority citation for 48 CFR parts 225 and 252 continues to read as follows: Authority:

    41 U.S.C. 1303 and 48 CFR chapter 1.

    PART 225—FOREIGN ACQUISITION
    225.003 [Amended]
    2. Section 225.003 is amended in paragraph (10), the definition of “Qualifying country”, by adding, in alphabetical order, the country of “Latvia”.
    225.872-1 [Amended]
    3. Section 225.872-1 is amended in paragraph (a) by adding, in alphabetical order, the country of “Latvia”. PART 252—SOLICITATION PROVISIONS AND CONTRACT CLAUSES
    252.225-7001 [Amended]
    4. Section 252.225-7001 is amended by— a. In the clause heading, removing the date “(DEC 2016)” and adding “(DEC 2017)” in its place; b. In paragraph (a), the definition of “Qualifying country”, adding, in alphabetical order, the country of “Latvia”; and c. In Alternate I— i. In the clause heading, removing the date “(DEC 2016)” and adding “(DEC 2017)” in its place; and ii. In paragraph (a), the definition of “Qualifying country”, adding, in alphabetical order, the country of “Latvia”.
    252.225-7002 [Amended]
    5. Section 252.225-7002 is amended by— a. In the clause heading, removing the date “(DEC 2016)” and adding “(DEC 2017)” in its place; and b. In paragraph (a), the definition of “Qualifying country”, adding, in alphabetical order, the country of “Latvia”.
    252.225-7012 [Amended]
    6. Section 252.225-7012 is amended by— a. In the clause heading, removing the date “(DEC 2016)” and adding “(DEC 2017)” in its place; and b. In paragraph (a), the definition of “Qualifying country”, adding in alphabetical order, the country of “Latvia”.
    252.225-7017 [Amended]
    7. Section 252.225-7017 is amended by— a. In the clause heading, removing the date “(DEC 2016)” and adding “(DEC 2017)” in its place; and b. In paragraph (a), the definition of “Qualifying country”, adding, in alphabetical order, the country of “Latvia”.
    252.225-7021 [Amended]
    8. Section 252.225-7021 is amended by— a. In the clause heading, removing the date “(DEC 2016)” and adding “(DEC 2017)” in its place; b. In paragraph (a), the definition of “Qualifying country”, adding, in alphabetical order, the country of “Latvia”; and c. In Alternate II— i. In the clause heading, removing the date of “(DEC 2016)” and adding “(DEC 2017)” in its place; and ii. In paragraph (a), the definition of “Qualifying country”, adding, in alphabetical order, the country of “Latvia”.
    252.225-7036 [Amended]
    9. Section 252.225-7036 is amended by— a. In the clause heading, removing the date “(DEC 2016)” and adding “(DEC 2017)” in its place; b. In paragraph (a), the definition of “Qualifying country”, adding in alphabetical order, the country of “Latvia”; c. In Alternate I— i. In the clause heading, removing the date “(DEC 2016)” and adding “(DEC 2017)” in its place; and ii. In paragraph (a), the definition of “Qualifying country”, adding, in alphabetical order, the country of “Latvia”; d. In Alternate II— i. In the clause heading, removing the date “(DEC 2016)” and adding “(DEC 2017)” in its place; and ii. In paragraph (a), the definition of “Qualifying country”, adding, in alphabetical order, the country of “Latvia”; e. In Alternate III— i. In the clause heading, removing the date “(DEC 2016)” and adding “(DEC 2017)” in its place; and ii. In paragraph (a), the definition of “Qualifying country”, adding, in alphabetical order, the country of “Latvia”; f. In Alternate IV— i. In the clause heading, removing the date “(DEC 2016)” and adding “(DEC 2017)” in its place; and ii. In paragraph (a), the definition of “Qualifying country”, adding, in alphabetical order, the country of “Latvia”; and g. In Alternate V— i. In the clause heading, removing the date “(DEC 2016)” and adding “(DEC 2017)” in its place; and ii. In paragraph (a), the definition of “Qualifying country”, adding, in alphabetical order, the country of “Latvia”.
    [FR Doc. 2017-27780 Filed 12-27-17; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF TRANSPORTATION Federal Railroad Administration 49 CFR Part 219 [Docket No. FRA-2001-11213, Notice No. 22] Drug and Alcohol Testing: Determination of Minimum Random Testing Rates for 2018 AGENCY:

    Federal Railroad Administration (FRA), Department of Transportation (DOT).

    ACTION:

    Notification of determination.

    SUMMARY:

    This notification of determination announces the FRA Administrator's minimum annual random drug and alcohol testing rates for calendar year 2018.

    DATES:

    This notification of determination is effective December 28, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Jerry Powers, FRA Drug and Alcohol Program Manager, W33-310, Federal Railroad Administration, 1200 New Jersey Avenue SE, Washington, DC 20590 (telephone 202-493-6313); or Sam Noe, FRA Drug and Alcohol Program Specialist (telephone 615-719-2951).

    SUPPLEMENTARY INFORMATION:

    For the next calendar year, FRA determines the minimum annual random drug testing rate and the minimum annual random alcohol testing rate for railroad employees covered by hours of service laws and regulations (covered service employees) based on the railroad industry data available for the two previous calendar years (for this document, calendar years 2015 and 2016). Railroad industry data submitted to FRA's Management Information System (MIS) shows the rail industry's random drug testing positive rate for covered service employees has continued to be below 1.0 percent for the applicable two calendar years. FRA's Administrator has therefore determined the minimum annual random drug testing rate from January 1, 2018 through December 31, 2018, will remain at 25 percent of covered service employees under § 219.602 of FRA's drug and alcohol rule (49 CFR part 219). In addition, because the industry-wide random alcohol testing violation rate for covered service employees has continued to be below 0.5 percent for the applicable two calendar years, the Administrator has determined the minimum annual random alcohol testing rate will remain at 10 percent of covered service employees from January 1, 2018 through December 31, 2018, under § 219.608. Because these rates represent minimums, railroads may conduct FRA random testing of covered service employees at higher rates.

    On June 12, 2017, maintenance-of-way (MOW) employees became subject to FRA random drug and alcohol testing. In the final rule which expanded the scope of part 219 to include MOW employees (81 FR 37894, June 10, 2016), FRA had set the initial minimum annual random testing rates for MOW employees at 50 percent of MOW employees for drugs and 25 percent of MOW employees for alcohol; FRA had set identical initial minimum random testing rates for covered employees when they first became subject to random testing. Unlike covered employees, however, FRA does not yet have two full years of MIS data to gauge the industry-wide random drug and random alcohol positive rates for MOW employees. For this reason, FRA's Administrator has determined that for MOW employees, from January 1, 2018 through December 31, 2018, the minimum annual random drug testing rate will remain at 50 percent of MOW employees, and the minimum annual random alcohol testing rate will remain at 25 percent of MOW employees. As with covered service employees, because these rates represent minimums, railroads may conduct FRA random testing of MOW employees at higher rates.

    Issued in Washington, DC, on December 21, 2017. Juan D. Reyes, III, Chief Counsel.
    [FR Doc. 2017-27976 Filed 12-27-17; 8:45 am] BILLING CODE 4910-06-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 622 [Docket No. 170816768-7999-02] RIN 0648-BH14 Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Reef Fish Fishery of the Gulf of Mexico; Modifications to Greater Amberjack Allowable Harvest and Rebuilding Plan AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Final rule.

    SUMMARY:

    NMFS issues regulations to implement management measures described in a framework action to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (FMP), as prepared by the Gulf of Mexico Fishery Management Council (Council). This final rule revises the commercial and recreational annual catch limits (ACLs) and annual catch targets (ACTs), and modifies the recreational fixed closed season for greater amberjack in the Gulf of Mexico (Gulf) exclusive economic zone (EEZ). The purpose of this final rule and the framework action is to adjust the rebuilding time period and to revise the sector ACLs and ACTs consistent with updated stock status information to end overfishing and rebuild the greater amberjack stock in the Gulf.

    DATES:

    This final rule is effective January 27, 2018.

    ADDRESSES:

    Electronic copies of the framework action, which includes an environmental assessment, a regulatory impact review, and a Regulatory Flexibility Act (RFA) analysis may be obtained from the Southeast Regional Office website at http://sero.nmfs.noaa.gov/sustainable_fisheries/gulf_fisheries/reef_fish/2017/GAJ_Framework/gaj_framework.pdf.

    FOR FURTHER INFORMATION CONTACT:

    Kelli O'Donnell, Southeast Regional Office, NMFS, telephone: 727-824-5305, email: [email protected]

    SUPPLEMENTARY INFORMATION:

    The Gulf reef fish fishery, which includes greater amberjack, is managed under the FMP. The Council prepared the FMP, and NMFS implements the FMP under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Steven Act) through regulations at 50 CFR part 622.

    On November 20, 2017, NMFS published a proposed rule for the framework action and requested public comment (82 FR 55074). The proposed rule and framework action outline the rationale for the actions contained in this final rule. A summary of the management measures described in the framework action and implemented by this final rule is provided below.

    Management Measures Contained in This Final Rule

    This final rule revises the commercial and recreational ACLs and ACTs (which are expressed as quotas in the regulatory text), and revises the recreational fixed closed season for greater amberjack in the Gulf.

    Commercial and Recreational ACLs and ACTs

    The current commercial ACL is 464,400 lb (210,648 kg), and the commercial ACT is 394,740 lb (179,051 kg). The current recreational ACL is 1,255,600 lb (569,530 kg), and the recreational ACT is 1,092,372 lb (495,492 kg). All weights described in this final rule are given in round weight.

    This final rule revises the commercial and recreational ACLs and ACTs for Gulf greater amberjack based on the results of the SEDAR 33 Update (2016) and the acceptable biological catch (ABC) recommendations from the Council's Scientific and Statistical Committee (SSC). This final rule sets the commercial ACL at 319,140 lb (144,759 kg) for 2018, 402,030 lb (182,357 kg) for 2019, and 484,380 lb (219,711 kg) for 2020 and subsequent years. The commercial ACT is set at 277,651 lb (125,940 kg) for 2018, 349,766 lb (158,651 kg) for 2019, and 421,411 lb (191,148 kg) for 2020 and subsequent years. The recreational ACL is set at 862,860 lb (391,386 kg) for 2018, 1,086,970 lb (493,041 kg) for 2019, and 1,309,620 lb (594,033 kg) for 2020 and subsequent years. The recreational ACT is set at 716,173 lb (354,850 kg) for 2018, 902,185 lb (409,223 kg) for 2019, and 1,086,985 lb (493,047 kg) for 2020 and subsequent years. These revisions to the ACLs and ACTs are projected to rebuild the stock by 2027.

    Recreational Fixed Closed Season

    This final rule revises the greater amberjack recreational fixed closed season from June 1 through July 31, which was established in the final rule for Amendment 35 to the FMP (77 FR 67574; November 13, 2012). That closed season was implemented to restrict harvest during times of peak fishing effort in order to prevent a recreational in-season closure as a result of the quota being met, and therefore provide for a longer fishing season for the recreational sector. The June 1 through July 31 recreational fixed closed season also was intended to allow for the harvest of one highly targeted species (red snapper) when the fishing season for the other species (greater amberjack) was closed. However, in-season closures of greater amberjack have continued to occur since the implementation of Amendment 35, and the reduction of the recreational red snapper season, which opens on June 1 each year, has resulted in closures for both of these species simultaneously. This final rule changes the recreational fixed closed season for greater amberjack to January 1 through June 30. The Council determined that extending the length of the recreational fixed closed season to the 6-month period of January 1 through June 30 will protect greater amberjack during peak spawning months (March through April) in the majority of the Gulf, thereby contributing to the rebuilding of the greater amberjack stock. The Council also determined that the 6-month fixed closed season will reduce the likelihood that the recreational sector will meet its quota and trigger an in-season quota closure, or exceed its ACL, which would require a subsequent ACL and ACT payback in the following year because of an ACL overage.

    The Council intends the new 6-month fixed closed season established by this final rule to be a short-term measure; it recently submitted another greater amberjack framework action to NMFS for review. Implementation of that framework action would modify this 6-month recreational closed season to create two separate fishing seasons: one open from May 1 through May 31, and a second open from August 1 through October 31. NMFS expects to publish a proposed rule in early 2018 and to solicit public comments on this change.

    Comments and Responses

    NMFS received a total of 12 comments on the proposed rule for the framework action. Two comments supported the changes to the commercial and recreational ACLs and ACTs and the recreational seasonal closure, and six comments disagreed with the proposed rule, although some of the comments were similar in reasons for disagreement.

    Other comments that were outside the scope of the proposed rule and therefore not addressed here, stated that charter vessel and headboat harvest should be considered commercial and that the use of longlines in the Gulf should be eliminated. Specific comments related to the framework action and the proposed rule are grouped as appropriate and summarized below, followed by NMFS' respective responses.

    Comment 1: Recreational fishing for greater amberjack should not be open during the summer when effort is highest and other species, such as red snapper, are available for harvest.

    Response: NMFS and the Council intend the January 1 through June 30 closure implemented through this final rule to be a short-term measure. As noted above, the Council recently submitted a framework action to NMFS that would change the January 1 through June 30 closure by establishing two separate annual recreational fishing seasons: one open from May 1 through May 31, and a second open from August 1 through October 31. However, even if the January through June closure remains in place, this final rule is expected to extend the fishing season into October, when fishing for other species, such as red snapper, have closed.

    Comment 2: There needs to be at least one species that is important to recreational anglers available for harvest at the beginning of the calendar year.

    Response: NMFS agrees that it is important to have species targeted by the recreational sector available early in the calendar year. Although this final rule would make greater amberjack unavailable at the beginning of the calendar year, there are many other Gulf reef fish species, such as red grouper, deep water groupers, snappers, and hogfish, which are generally available for recreational harvest beginning annually on January 1.

    NMFS recently approved an FMP amendment that establishes a new recreational fixed closed season for gray triggerfish from January 1 through the end of February. This new closed season was implemented through a final rule issued on December 15, 2017 (82 FR 59523), and, as a result, gray triggerfish are no longer available for recreational harvest during the first two months of the calendar year. However, the gray triggerfish fishery will be open starting March 1, while greater amberjack harvest remains closed.

    Comment 3: There should be a recreational vessel limit instead of a longer recreational fixed closed season.

    Response: The Council did not consider establishing a vessel limit in this framework action. However, in response to public comment at its October 2017 meeting, the Council began working on another framework action and will consider including vessel limits in that framework action. NMFS expects the Council to review a draft of this framework action at its January 2018 meeting.

    Comment 4: The greater amberjack stock is healthy and therefore not in need of rebuilding efforts.

    Response: NMFS disagrees. The most recent Gulf greater amberjack population assessment, completed in 2016, indicated greater amberjack are experiencing overfishing and are overfished. The current rebuilding plan time period ends in 2019, but new scientific information indicates the stock will not be rebuilt by that time. Therefore, consistent with the framework action approved by the Council, this final rule establishes a new rebuilding time period ending in 2027 and revises the harvest limits as necessary to end overfishing and rebuild the stock.

    Actions Contained in the Framework Action Not Codified Through This Final Rule

    In addition to the measures in this final rule, the framework action revises the greater amberjack ABC and overfishing limits (OFLs) based upon the results of the SEDAR 33 Update and the Council's SSC recommendations. The current greater amberjack ABC is 1,720,000 lb (780,179 kg), and the OFL is 3,420,000 lb (1,551,286 kg), which were established in the final rule implementing the 2015 framework action (80 FR 75432; December 2, 2015). This framework action revises the ABC and OFL for 3 years, beginning in 2018. The ABC, which is equal to the stock ACL, is set at 1,182,000 lb (536,146 kg) for 2018, 1,489,000 lb (675,399 kg) for 2019, and 1,794,000 lb (813,744 kg) for 2020 and subsequent years. The OFL is set at 1,500,000 lb (680,388 kg) for 2018, 1,836,000 lb (832,795 kg) for 2019, and 2,167,000 lb (982,934 kg) for 2020 and subsequent years.

    Classification

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

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

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

    The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration (SBA) during the proposed rule stage that this rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The factual basis for this determination was published in the proposed rule and is not repeated here. No comments from the public or the SBA's Chief Counsel for Advocacy were received regarding the certification, and NMFS has not received any new information that would affect its determination. As a result, a final regulatory flexibility analysis is not required and none has been prepared.

    List of Subjects in 50 CFR Part 622

    Commercial, Fisheries, Fishing, Greater amberjack, Gulf, Recreational, Reef fish.

    Dated: December 22, 2017. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

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

    PART 622—FISHERIES OF THE CARIBBEAN, GULF OF MEXICO, AND SOUTH ATLANTIC 1. The authority citation for part 622 continues to read as follows: Authority:

    16 U.S.C. 1801 et seq.

    2. In § 622.34, revise paragraph (c) to read as follows:
    § 622.34 Seasonal and area closures designed to protect Gulf reef fish.

    (c) Seasonal closure of the recreational sector for greater amberjack. The recreational sector for greater amberjack in or from the Gulf EEZ is closed from January 1 through June 30, each year. During the closure, the bag and possession limits for greater amberjack in or from the Gulf EEZ are zero.

    3. In § 622.39, revise paragraphs (a)(1)(v) and (a)(2)(ii) to read as follows:
    § 622.39 Quotas.

    (a) * * *

    (1) * * *

    (v) Greater amberjack—(A) For fishing year 2018—277,651 lb (125,940.38 kg), round weight.

    (B) For fishing year 2019—349,766 lb (158,651 kg), round weight.

    (C) For fishing year 2020 and subsequent years—421,411 lb (191,149 kg), round weight.

    (2) * * *

    (ii) Recreational quota for greater amberjack. The recreational quota for greater amberjack, in round weight, is 716,173 lb (324,851 kg), for 2018, 902,185 lb (409,224 kg), for 2019, 1,086,985 lb (493,048 kg), for 2020 and subsequent fishing years.

    4. In § 622.41, revise paragraphs (a)(1)(iii) and (a)(2)(iii) to read as follows:
    § 622.41 Annual catch limits (ACLs), annual catch targets (ACTs), and accountability measures (AMs).

    (a) * * *

    (1) * * *

    (iii) The commercial ACL for greater amberjack, in round weight, is 319,140 lb (144,759 kg), for 2018, 402,030 lb (182,358 kg), for 2019, and 484,380 lb (219,711 kg), for 2020 and subsequent fishing years.

    (2) * * *

    (iii) The recreational ACL for greater amberjack, in round weight, is 862,860 lb (391,387 kg), for 2018, 1,086,970 lb (493,041 kg), for 2019, and 1,309,620 (594,034 kg), for 2020 and subsequent fishing years.

    [FR Doc. 2017-28047 Filed 12-27-17; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 622 RIN 0648-XF539 Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Reef Fish Fishery of the Gulf of Mexico; Amendment 44 AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Notification of Agency decision.

    SUMMARY:

    NMFS announces the approval of Amendment 44 to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (FMP) as submitted by the Gulf of Mexico (Gulf) Fishery Management Council (Council). Amendment 44 revises minimum stock size thresholds (MSST) for seven stocks in the Gulf of Mexico (Gulf) reef fish fishery management unit. The MSST is revised for the gag, red grouper, red snapper, vermilion snapper, gray triggerfish, greater amberjack, and hogfish stocks. The need for Amendment 44 is to provide a sufficient buffer between spawning stock biomass at maximum sustainable yield (BMSY) and MSST to reduce the likelihood that stock status changes frequently between overfished and not overfished as a result of scientific uncertainty or natural fluctuations in biomass levels.

    DATES:

    The amendment was approved December 21, 2017.

    ADDRESSES:

    Electronic copies of Amendment 44 may be obtained from www.regulations.gov or the Southeast Regional Office website at http://sero.nmfs.noaa.gov. Amendment 44 includes an environmental assessment and a fishery impact statement.

    FOR FURTHER INFORMATION CONTACT:

    Peter Hood, NMFS Southeast Regional Office, telephone: 727-824-5305, or email: [email protected]

    SUPPLEMENTARY INFORMATION:

    NMFS and the Council manage the Gulf reef fish fishery, which includes gray triggerfish, under the FMP. The Council prepared the FMP and NMFS implements the FMP through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) (16 U.S.C 1801 et seq.). Amendment 44 was prepared by the Council and will be incorporated into the management of Gulf reef fish through the FMP.

    On September 25, 2017, NMFS published a notice of availability (NOA) for Amendment 44 and requested public comment (82 FR 44582).

    In 1999, the Council submitted the Generic Sustainable Fisheries Act Amendment to comply with status determination criteria (SDC) requirements of the Sustainable Fisheries Act of 1996. NMFS approved most of the fishing mortality threshold (MFMT) criteria, but disapproved all of the definitions for maximum sustainable yield (MSY), optimum yield (OY), and MSST. The Council subsequently began establishing these reference points and SDC on a species-specific basis as stock assessments were later conducted, and is currently preparing a plan amendment to address all of the unassessed reef fish stocks. Amendment 44 focuses on those assessed stocks with MSSTs, which are gag, red grouper, red snapper, vermilion snapper, gray triggerfish, greater amberjack, and hogfish. Red snapper, gray triggerfish, and greater amberjack are currently considered overfished because their stock size is below MSST and are under rebuilding plans. The other four stocks are not considered overfished (gag, red grouper, vermilion snapper, and hogfish) because their stock size is above MSST.

    For most of the assessed federally managed reef fish stocks in the Gulf with defined MSSTs, the overfished status, when applied, has been evaluated using the formula: (1-M) * BMSY (M is the natural mortality rate and B is a measure of stock biomass). For some stocks that have a very low natural mortality rate, the formula (1-M) * BMSY results in an MSST that is very close to the BMSY. For example, red snapper is a moderately long-lived fish that has a natural mortality rate of about 0.1. The above formula results in an MSST of 90 percent of BMSY. In such situations it can be difficult to determine if a stock is actually less than MSST due to the imprecision and accuracy of the data used in stock assessments. In addition, natural fluctuations in stock biomass levels around the BMSY level may temporarily reduce the stock biomass to be less than MSST. Setting a greater buffer between BMSY and MSST can reduce the risk of mistakenly declaring a stock overfished.

    In Amendment 44, the Council evaluated MSSTs ranging from 0.85 * BMSY (or proxy) to 0.50 * BMSY (or proxy), and selected 0.50 * BMSY (or proxy) as its preferred alternative. This is consistent with the National Standard 1 (NS1) guidelines and reduces the likelihood of a stock being declared overfished as a result of scientific uncertainty or natural fluctuations in biomass levels. Setting the MSST at this level could result in a very restrictive rebuilding plan if the biomass level of a stock drops below the MSST and NMFS declares that the stock is overfished. However, the Council determined that the requirements for overfishing limits (OFLs), annual catch limits (ACLs), and accountability measures (AMs), reduce the probability that sustained overfishing would occur and cause a stock to fall below the MSST.

    NMFS expects that with the approval of Amendment 44, the Gulf red snapper and gray triggerfish stocks will be reclassified as not overfished, but rebuilding, because the biomass for these two stocks is currently estimated to be greater than 50 percent of BMSY. The greater amberjack stock will remain classified as overfished.

    Procedural Aspects of Amendment 44

    Because none of the measures included in the amendment involve regulatory changes, no proposed or final rule was prepared. The provisions of Amendment 44 are not specified in regulations but are considered an amendment to the FMP.

    Comments and Responses

    NMFS received 23 comments on the NOA. Twelve comments were in favor of approving the amendment and four were in opposition. Other comments received were not relevant to Amendment 44, expressing frustration with fishing regulations and their implementation in general. Comments specific to the action in Amendment 44 and NMFS' responses to those comments are summarized below.

    Comment 1: NMFS should disapprove Amendment 44 for several reasons. First, the current MSST definitions appear to be working well and are not likely to cause stocks from being unnecessarily declared overfished due to natural variability in fish populations. Second, reducing the MSST to 0.5 * BMSY will allow these stocks to be further depleted before they are declared overfished, which will increase the economic severity of rebuilding and put the stocks at a greater risk of collapse. Third, there is too much uncertainty in the stock assessments to lower the MSST and continue to ensure the protection of these stocks.

    Response: NMFS disagrees that Amendment 44 should be disapproved. Amendment 44 revises the MSST for seven stocks from either 0.75 * BMSY (hogfish) or (1-M) * BMSY (the other six species) to 0.5 * BMSY. The National Standard 1 Guidelines allow the Council to consider a variety of factors is determining the appropriate MSST (50 CFR 622.310(e)(2)(ii)(B)). In Amendment 44, the Council considered natural variability in fish populations, the time it would take a stock to recover from various MSST levels, and the risk of stock biomass declining below the MSST due to overfishing. The Southeast Fisheries Science Center (SEFSC) evaluated the likelihood of stock biomass falling below the MSST due to natural fluctuations. This evaluation, which is included in Appendix C of Amendment 44, found that when recruitment and natural mortality estimates are varied, stock biomass levels declining below MSST at the (1-M) * B BMSY level for reasons other than overfishing ranged from 5 to 30 percent depending on a species' life history characteristics. This likelihood of a stock declining below MSST increases as the as natural mortality rate decreases. Therefore, the Council determined, and NMFS agrees, that there is concern that some stocks with low natural mortality rates could be determined to be overfished because of natural variations in the population and the small buffers between MSST and BMSY.

    The SEFSC also analyzed how long it would take stocks with various life history characteristics to recover from various MSST levels. This analysis is included in Appendix D of Amendment 44 and found that for all species analyzed (including red snapper and gray triggerfish), recovery would occur in the absence of fishing mortality in 10 years or less under any of the MSST levels, including the MSST of 0.5 * BMSY. The Council understood that specifying an MSST of 0.5 * BMSY could result in the need for a restrictive rebuilding plan if a stock was determined to be overfished. However, the Council determined, and NMFS agrees, that the risk of sustained overfishing causing a stock to become overfished is minimal given the requirement to prevent overfishing and use of OFLs, ACLs, and AMs, to achieve this objective.

    With respect to stock assessments, there is a level of uncertainty in the data used. However, consistent with National Standard 2, these assessments use the best scientific information available to provide information on stock status. In addition, for the reasons stated above, the Council determined that the revised MSSTs, when used in combination with OFLs, ACLs, and AMs, will continue to provide the appropriate level of protection for these stocks. Thus, it is not appropriate to disapprove Amendment 44 based on uncertainty in the stock assessments.

    Comment 2: This action to revise the MSST will result in a decrease in the allowable catch for these stocks.

    Response: Revising the MSST will not directly affect catch levels for the seven stocks in Amendment 44. The MSST is the threshold used to determine whether a stock is overfished. If the stock biomass falls below MSST, the stock is considered to be overfished and a rebuilding plan is required. Therefore, the MSST may indirectly affect catch levels for a stock if harvest needs to be restricted for some period of time so the stock can recover. However, of the seven stocks included in Amendment 44, four are not overfished (gag, red grouper, vermilion snapper, and hogfish) and that determination will not change with the revision to the MSSTs for these stocks. The remaining three stocks (red snapper, gray triggerfish, and greater amberjack) are currently classified as overfished but, with the approval of Amendment 44, NMFS expects that red snapper and gray triggerfish stocks will be reclassified as not overfished. However, they will still be subject to their respective rebuilding plans until BMSY is reached. The greater amberjack stock would continue to be classified as overfished until that stock's biomass exceeds the MSST of 0.5 * BMSY.

    Comment 3: NMFS must revisit the previous rulemaking that implemented the quota overage adjustment (payback) for the red snapper recreational sector to correct an error in the regulations that links the recreational payback to “overfished” status as opposed to “rebuilding status.”

    Response: NMFS disagrees that it is necessary to revisit the rulemaking that implemented the red snapper recreational AMs (80 FR 14328, March 19, 2015). The reference to overfished status in the red snapper recreational AM in 50 CFR 622.41(q)(2)(ii) was not an error. This provision was added to the regulations through a framework action in 2015. Although the framework action referred to “rebuilding,” the codified text for the framework that was reviewed and deemed necessary by the Council linked the quota payback provision to overfished status, which was consistent with the other payback provisions for Gulf-managed species that were already in effect prior to that time, such as those for gray triggerfish (50 CFR 622.41(b)(2)(ii)), gag (50 CFR 622.41(d)(2)(iii)), and red grouper (50 CFR 622.41(e)(2)(iii)).

    Although the approval of Amendment 44 may result in the red snapper stock no longer being classified as overfished because the biomass for this stock is currently estimated to be greater than 50 percent of BMSY, the stock continues to be subject to the rebuilding plan established in Amendment 27 to the FMP (73 FR 5117, January 29, 2008). NMFS is required to review the rebuilding progress at routine intervals and notify the Council if there has been inadequate progress toward rebuilding. If notified, the Council would be required to take action consistent with the rebuilding plan requirements in section 305(e) of the Magnuson-Stevens Act.

    In addition, NMFS and the Council have reduced the likelihood of the red snapper recreational ACL being exceeded by the use of recreational annual catch targets (ACTs) to set the Federal charter vessel/headboat (for-hire) and the private angling component recreational season lengths. However, if an overage of the recreational ACL does occur more than once in the last 4 years, the National Standard 1 Guidelines advise the Council to reevaluate the system of ACLs and AMs, and if necessary, modify the system to improve its performance and effectiveness (50 CFR 600.310(e)(7)). If the ACL is exceeded to such an extent that overfishing occurs, the Guidelines state that the Secretary of Commerce will immediately notify the Council and the Council should evaluate the cause of overfishing, address the issue that caused overfishing, and reevaluate the ACLs and AMs to make sure they are adequate (50 CFR 600.310(j)). All of these safeguards will help ensure that the ACLs and AMs continue to function effectively to prevent overfishing and rebuild the stock consistent with the established rebuilding plan.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: December 21, 2017. Samuel D. Rauch, III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.
    [FR Doc. 2017-28058 Filed 12-27-17; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 635 [Docket No. 170823804-7999-02] RIN 0648-BH17 Atlantic Highly Migratory Species; Individual Bluefin Quota Program; Accountability for Bluefin Tuna Catch AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Final rule.

    SUMMARY:

    NMFS modifies the Atlantic highly migratory species (HMS) regulations to require vessels in the pelagic longline fishery to account for bycatch of bluefin tuna (bluefin) using Individual Bluefin Quota (IBQ) on a quarterly basis instead of on a trip-level basis. Previously, vessel owners had to account for quota debt or IBQ balances less than the minimum required before commencing any fishing trip with pelagic longline gear. With this rulemaking, vessels may fish during a given calendar quarter if they have an IBQ balance below the minimum amount required to depart on a fishing trip or with quota debt incurred by exceeding their IBQ balance; however, vessels are required to reconcile quota debt and satisfy the minimum IBQ requirement prior to departing on their first pelagic longline fishing trip in each calendar quarter. The action optimizes fishing opportunity in the directed pelagic longline fishery for target species such as tuna and swordfish and improves the functionality of the IBQ Program and its accounting provisions, consistent with the objectives of Amendment 7 to the 2006 Consolidated HMS Fishery Management Plan (FMP).

    DATES:

    Effective on January 27, 2018.

    ADDRESSES:

    Supporting documents, including the Regulatory Impact Review and Final Regulatory Flexibility Analysis, may be downloaded from the HMS website at www.nmfs.noaa.gov/sfa/hms/.

    FOR FURTHER INFORMATION CONTACT:

    Thomas Warren, 978-281-9260; or Carrie Soltanoff, 301-427-8503.

    SUPPLEMENTARY INFORMATION:

    Regulations implemented under the authority of the Atlantic Tunas Convention Act (ATCA; 16 U.S.C. 971 et seq.) and the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act; 16 U.S.C. 1801 et seq.) governing the harvest of BFT by persons and vessels subject to U.S. jurisdiction are found at 50 CFR part 635. Section 635.27 subdivides the U.S. BFT quota recommended by the International Commission for the Conservation of Atlantic Tunas (ICCAT) among the various domestic fishing categories, per the allocations established in the 2006 Consolidated Atlantic Highly Migratory Species Fishery Management Plan (2006 Consolidated HMS FMP) (71 FR 58058, October 2, 2006), as amended by Amendment 7 to the 2006 Consolidated HMS FMP (Amendment 7) (79 FR 71510, December 2, 2014), and in accordance with implementing regulations. The current baseline U.S. BFT quota and subquotas were established and analyzed in the BFT quota final rule (80 FR 52198, August 28, 2015). NMFS is required under ATCA and the Magnuson-Stevens Act to provide U.S. fishing vessels with a reasonable opportunity to harvest the ICCAT-recommended quota.

    Background

    Bluefin tuna fishing is managed domestically through a quota system (on a calendar-year basis), in conjunction with other management measures including permitting, reporting, gear restrictions, minimum fish sizes, closed areas, trip limits, and catch shares. NMFS implements the ICCAT U.S. quota recommendation, and divides the quota among U.S. fishing categories (i.e., the General, Angling, Harpoon, Purse Seine, Longline, and Trap categories) and the Reserve category on an annual basis. Vessels fishing with pelagic longline gear, which catch bluefin incidentally while fishing for target species (primarily swordfish and yellowfin tuna), hold limited access Atlantic Tunas Longline permits and utilize Longline category quota. Through Amendment 7, NMFS established the IBQ Program, a catch share program that identified 136 permit holders as IBQ share recipients based on specified criteria, including historical target species landings and the bluefin catch-to-target species ratios from 2006 through 2012. The objectives of the IBQ Program include limiting the amount of BFT landings and dead discards in the pelagic longline fishery; providing strong incentives for the vessel owner and operator to avoid bluefin interactions and thus reduce bluefin dead discards; and balancing the objective of limiting bluefin landings and dead discards with the objective of optimizing fishing opportunities and maintaining profitability.

    IBQ share recipients receive an annual allocation of the Longline category quota based on the percentage share they received through Amendment 7, but only if their permit is associated with a vessel in the subject year (i.e., only “qualified IBQ share recipients” receive annual allocations). Through rulemaking, NMFS later modified the regulations to optimize quota transferred inseason by allowing NMFS to distribute inseason transfers of quota to all permitted Atlantic Tunas Longline vessels with recent fishing activity whether they have IBQ shares or not (81 FR 95903; December 29, 2016). Permit holders that did not receive IBQ shares through shares in Amendment 7 or allocation through inseason distribution of bluefin quota to active vessels under the later regulatory provision may still fish, but they are required to lease IBQ through the IBQ electronic system. Every vessel must individually account for its bluefin bycatch (landings and dead discards) with IBQ allocation through the IBQ electronic system.

    Delayed effective dates for some of the regulations implemented through Amendment 7 assisted in the transition to measures adopted in Amendment 7, which substantially increased individual vessel accountability for bluefin bycatchin the Longline fishery. During 2015, the first year of implementation of the IBQ Program, a pelagic longline vessel that had insufficient IBQ to account for its landings and dead discards (i.e., went into “quota debt”) was allowed to continue to fish; however, any additional landings and dead discards continued to accrue, and the cumulative quota debt needed to be accounted for no later than December 31, 2015. A vessel that did not resolve its quota debt by December 31 would retain the quota debt into 2016, and its quota debt would be deducted from its annual IBQ allocation (allocated January 1 to shareholders associated with permitted vessels) or the vessel would be required to lease quota to resolve the outstanding quota balance before taking any trips with pelagic longline gear. As of January 1, 2016, a vessel fishing with pelagic longline gear onboard was required to have a minimum IBQ allocation to embark on a trip. A minimum allocation required to fish was 0.25 mt (551 lb) whole weight (ww) for each trip in the Gulf of Mexico and 0.125 mt ww (276 lb ww) for each trip in the Atlantic. Pelagic longline vessels could lease IBQ allocation from other such vessels or from Purse Seine fishery participants in the IBQ Program to obtain sufficient allocation for each trip and to account for quota debt where necessary. Pelagic longline vessel owners have been accounting for bluefin catch using the IBQ Program since its implementation and leasing quota among themselves (and from Purse Seine fishery participants) as needed to fully account for bluefin catch using IBQ. Notably, estimates of 2015 and 2016 dead discards of bluefin (17.1 mt and 22.6 mt, respectively) by the pelagic longline fishery indicate substantial reductions of greater than 85 percent compared to the pre-2015 levels (159.6 mt on average for 2006 through 2014). However, since implementation, pelagic longline fishery participants have consistently requested additional operational flexibility to address the costs and availability of leased IBQ, which they are concerned may affect the profitability of target species catch and causes uncertainty in a vessel owner's short-term and long-term plans. Vessel owners stated that their ability to account for bluefin using allocated IBQ or IBQ leased at an affordable price is key to the success of the IBQ Program. A vessel that has below the minimum amount of IBQ to fish or is in quota debt is uncertain about their ability to depart on a subsequent fishing trip. Specifically, vessels have been concerned that the IBQ Program, including the trip-level accountability requirements, could negatively impact vessel operations and finances given the timing restrictions, lease pricing of IBQ, the distribution of quota among permit holders as implemented by Amendment 7, and the behavior of some permit holders who, for example, do not appear to be actively fishing nor engaged in any leasing activities. They also say that the expense of leasing IBQ allocation when needed can impact other operational costs such as crew pay. If availability of IBQ is limited, or costs are prohibitive, the operational impacts increase. IBQ Program data generally reflect that, for leasing transactions that occurred, sales revenue received per pound approximated the cost per pound of leasing IBQ. However, IBQ Program participants (which include any permit holder or vessel that leases quota to facilitate pelagic longline operations) and potential lessees have communicated that there were instances where the cost at which lessors were willing to lease their IBQ was prohibitive and leasing did not occur, and this information would not be reflected in NMFS data. Furthermore, expanded opportunities to fish with pelagic longline gear within the available swordfish quota are contingent on access to additional quota to account for bluefin bycatch and discards. Longline fishery participants requested that NMFS take further steps to provide more flexibility regarding timing for vessel owners to lease IBQ needed to cover bluefin catchdue to the dynamics and costs associated with leasing IBQ described above, which can affect profitability of target species catch, increase uncertainty, and negatively affect the ability to plan their business. Such effects may be compounded by the impacts of other constraints associated with Amendment 7, including additional gear restricted areas and VMS and electronic monitoring requirements, as well as non-Amendment 7 related constraints (e.g., market demands etc.).

    In light of these challenges facing the fishery, as well as the Amendment 7 objectives—which include “minimizing constraints on fishing for target species,” as well as “optimizing fishing opportunities and maintaining profitability”—NMFS has utilized its authority to transfer quota inseason to the Longline category (80 FR 45098; July 29, 2015; 81 FR 19; January 4, 2106; 82 FR 12296; March 2, 2017) to foster conditions in which vessel owners become more willing to lease IBQ, optimize fishing opportunity, and reduce uncertainty in the fishery. NMFS modified the IBQ Program in 2017 (81 FR 95903, December 29, 2016) to provide additional flexibility regarding the distribution of inseason Atlantic bluefin tuna (BFT) quota transfers to the Longline category. That rulemaking provided NMFS the flexibility to distribute quota inseason either to all qualified IBQ share recipients (i.e., share recipients who have associated their permit with a vessel) or only to those permitted Atlantic Tunas Longline vessels with recent fishing activity, whether or not they are associated with IBQ shares.

    During its May 2017 Advisory Panel Meeting, pelagic longline vessel owners acknowledged the effectiveness of NMFS' actions in support of the IBQ Program objectives, but reiterated the need for additional flexibility and offered suggestions for high priority regulatory changes to achieve such flexibility.

    NMFS received requests, among other suggestions about the IBQ Program and management of the pelagic longline fishery, to allow more time for vessel owners to resolve quota debt and achieve a minimum balance of IBQ, rather than require vessels to have a minimum balance of IBQ as a prerequisite of every longline trip. In light of past fishery dynamics under the IBQ Program and public input regarding the need for additional flexibility, NMFS published a proposed rule on October 25, 2017 (82 FR 49303), that proposed modifying the accountability provisions of the IBQ Program to provide some additional flexibility for individual vessel owners, while achieving a balance among the IBQ Program objectives. Public comments on the proposed rule were accepted through November 24, 2017.

    The pelagic longline fishery is a diverse fishing fleet, with a variety of vessel sizes and types of operations distributed from the waters off Nova Scotia to the Gulf of Mexico, Caribbean, and South America. Timing of fishing trips are typically based on the availability of target species, weather, moon phase, markets, crew and bait availability, and other factors. Quarterly accountability may achieve a better balance between minimizing constraints on fishing for target species and ensuring accountability for incidental bluefin catch, due to the fact that it allows a vessel owner to determine the timing of lease transactions or level of quota debt they are comfortable maintaining over a longer period. Alleviation of the timing constraint associated with trip-level accountability would provide additional flexibility. A vessel owner may need flexibility to pay costs associated with fishing (fuel, bait, ice, labor, repairs, etc.), including the cost of leasing IBQ, on a timeline unique to their operation and finances. The opportunity to fish with a low IBQ balance or with quota debt may enable a vessel owner to continue to obtain revenue during the time period when they are looking for quota to lease and accommodate different types of fishing operations and financial obligations. Quarterly accountability requires vessel owners to resolve quota debt and obtain the minimum amount of IBQ prior to fishing for the first time in a subsequent calendar quarter.

    Response to Comments

    NMFS received nine written comments on the proposed rule during the comment period. Five commenters expressed support for the rule as proposed; one expressed qualified support; two commenters did not support the proposed changes; and one commenter did not address topics included in the proposed rule. All written comments can be found at http://www.regulations.gov/. The comments are summarized below by topic together with NMFS' responses.

    Comment 1: Two commenters noted the IBQ system was implemented without an established trading system in place and that vessels have had difficulty finding quota to lease in a diverse, widely dispersed fishery. Three commenters stated that under quarterly accountability, lessors and lessees, as well as NMFS, will develop a better understanding of the IBQ market. One commenter stated that participants in the IBQ market would have a better understanding of the market value of available IBQ with quarterly accountability.

    Response: NMFS agrees that upon inception of the IBQ program (January 2015), the leasing market for IBQ was not yet established, there was not yet an operative understanding of the dynamics and pricing of IBQ in the Atlantic bluefin tuna fishery, and some vessels reported having a difficult time finding IBQ to lease and/or leasing IBQ at an affordable price. When implementing Amendment 7, NMFS acknowledged that the novelty of the IBQ system (as well as other Amendment 7 requirements) could create uncertainty in the fishery, and therefore delayed implementation of trip-level accountability during the first year of the IBQ Program, instead requiring annual accountability during 2015. During 2016 and 2017, both the pelagic longline fishery and NMFS gained a better understanding of the IBQ market. NMFS anticipates that understanding of the IBQ market will continue to improve with time and agrees with the commenters that such understanding will be augmented by quarterly accountability.

    Comment 2: The five commenters that fully supported the proposed measures anticipated improvements to the IBQ leasing market, including aspects of the cost and logistics of leasing. Regarding costs and logistics, five commenters noted the importance of quarterly accountability in providing additional time to lease IBQ and that quarterly accountability would allow more time to obtain IBQ when prices are low. One commenter stated that leasing is highly compromised when a lessee is bidding for IBQ on short notice, even if the lessee knows a vessel owner from whom to lease quota, stating that bids under time pressure favor lessors, in terms of price. Under quarterly accountability, the commenter stated, leasing prices would be more reasonable, and reflect the “ample supply” of IBQ, instead of the lease pricing being “inflated and unreasonable.” One commenter stated that lessors tend to have different levels of participation in the fishery, or less of a need for IBQ than lessees, which tends to provide an advantage to the lessor under trip-level accountability (that may be reduced under quarterly accountability). For example, the commenter stated that lessors may not be actively fishing in the pelagic longline fishery or, if fishing, may be fishing in locations and times where they do not expect to catch bluefin. One commenter stated that quarterly accountability would be beneficial because it can be difficult to contact people when searching for available IBQ to lease, and even after negotiation, the lessor may not have access to the online system in a timely manner. The commenter stated that the time constraint of trip-level accountability is particularly difficult for vessel operators who are looking for IBQ to lease in a short window of time between two fishing trips. One commenter stated that quarterly accountability would enhance the ability for vessel owners to plan their businesses.

    Response: NMFS agrees that quarterly accountability will improve the IBQ market by providing lessees more time to shop for IBQ and lease at reasonable prices, which more accurately reflect supply. NMFS agrees that the flexibility associated with quarterly accountability will help facilitate successive fishing trips consistent with typical longline vessel practice (i.e., without extended wait time between trips), reduce uncertainty in planning, and provide more time to conduct the logistics associated with IBQ leasing.

    Comment 3: Several commenters stated that quarterly accountability would improve the IBQ market at the end of the year because IBQ would be leased as needed rather than on a speculative basis and would increase the availability of IBQ for lease to those that need it during the end of the year time period. One commenter stated that the perceived need to “hoard” IBQ by vessels would be reduced. Furthermore, the commenter stated, under quarterly accountability (and removal of the minimum amount of IBQ to fish), vessels would not lose the value of IBQ during the latter part of the year by maintaining the minimum amount of quota, whether or not they anticipate needing the quota to account for bluefin catch.

    Response: NMFS agrees that quarterly accountability may improve the end-of-the year IBQ market. At the end of a year, if a vessel has quota debt remaining at, the quota debt will carry forward to the subsequent year, whereas available IBQ balance does not carry forward. This creates increased incentives to resolve quota debt immediately at a time when there may not be as much quota in the IBQ market. Under trip-level accounatability, a vessel that is fishing during December in the Atlantic may not be willing to lease to another vessel due to the minimum quota requirement (276 lb) and the desire to retain some quota in case the vessel encounters a bluefin tuna. This final rule removes the minimum quota requirement after the first trip of the quarter, thus vessel owners may be willing to lease more at year's end without concern about interfering with their ability to fish during that quarter.

    Comment 4: The five commenters that fully supported the proposed measures anticipated ancillary benefits from quarterly accountability that are less directly related to IBQ leasing per se, but that are related to flexibility in their fishing operations, resulting in benefits to the fishery as a whole. One commenter stated that U.S. pelagic longline operators would have peace of mind as they leave the dock fishing for target species, due to the flexibility associated with quarterly accountability. Another commenter stated that, under quarterly accountability, captains would be able to fish more confidently in search of target species without fear of immediate shutdown because of interactions with BFT that went beyond their available IBQ balance at the time. One commenter stated that trip-level accountability was burdensome to vessels and hurt their ability to get back on the water if they were unfortunate and had an interaction with bluefin and that active vessels will gain additional economic and operational flexibility because they will no longer have to `stockpile' IBQ. One commenter stated that the flexibility affects operations in multiple ways that have the net effect of more effectively fishing for target species and that quarterly accountability would reduce the chances the pelagic longline vessels would be tied to the dock while attempting to acquire IBQ, especially for those vessels that received little or no IBQ shares under Amendment 7. Several commenters stated the fishery would have a better opportunity to fully utilize U.S. ICCAT quotas for target species such as swordfish. One commenter noted that the proposed measure would add revenue to help the “dwindling” American fleet, as well as reduce the U.S. seafood trade deficit.

    Response: NMFS agrees that the additional flexibility for fishing operations resulting from quarterly accountability would result in social benefits for the portion of the fleet that is constrained by quota debt or low IBQ balances. The social benefits include a decrease in some vessel owner/operator stress and uncertainty in addition to economic benefits described below and under Responses to Comments 3 and 4. NMFS agrees that quarterly accountability will reduce the chances that vessels with quota debt or low IBQ balance will not be able to depart on fishing trips and to earn fishing revenue due to a lack of IBQ, will support increased revenue for some of the pelagic longline fleet and contribute towards full utilization of the U.S. ICCAT quotas for target species, and may contribute to the reduction of the U.S. seafood trade deficit.

    Comment 5: One commenter supported providing additional flexibility to the pelagic longline fishery through quarterly accountability because they were encouraged by the results of the IBQ program, specifically by the reduction in dead discards by the pelagic longline fishery during 2015 and 2016 (compared to 2014, prior to the implementation of Amendment 7). The commenter stated that the dead discard data suggests the IBQ Program is achieving the goals of limiting dead discards and providing strong incentives to avoid bluefin interactions. The commenter stated that in order to be fully successful, the IBQ Program must also balance those objectives with the objective of optimizing fishing opportunities and maintaining profitability. Another commenter acknowledged the success of the IBQ Program to date, but was concerned that quarterly accountability would undermine its success.

    Response: NMFS agrees that based on available information to date, the IBQ Program has reduced the amount of dead discards in the pelagic longline fishery, and appears to be meeting the objectives of the IBQ Program. A full evaluation of the IBQ Program during its first 3 years of operation (2015 through 2017) will occur during the 3-year review, completion of which is anticipated in 2019. The 3-year review will evaluate all the objectives of the IBQ Program, including limiting bluefin tuna interactions, reducing bluefin dead discards, optimizing fishing opportunities, and maintaining profitability. The response to the commenter's concerns about undermining the success of the IBQ Program is addressed in the response to Comment 6.

    Comment 6: One commenter did not support quarterly accountability, stating that it would encourage a “debt mindset” in which vessel operators fish more in the present with only the hope of future leasing to `pay for' the bluefin catch, that a quarter is too long before requiring full accounting, and that they were concerned about a lack of IBQ to account for the bluefin caught by all pelagic longline fishers. The commenter was concerned about weakening the IBQ restrictions and undermining the past success of the IBQ program in minimizing bluefin bycatch and reducing dead discards, while minimizing reductions in target catch. Specifically the commenter was concerned that quarterly accountability could result in exceeding the overall pelagic longline quota at the end of the calendar year, especially with the occurrence of a `disaster set'. The commenter also stated that the proposed change to the IBQ regulations is premature, in light of the upcoming formal review of the IBQ Program (“3-year review”) by NMFS, as well as the fact that NMFS already made a modification to the IBQ to increase flexibility (81 FR 95903, December 29, 2016). The commenter stated that multiple changes to the IBQ Program prior to the 3-year review will make it difficult to evaluate the IBQ Program, and that any changes to the IBQ Program should only occur after the 3-year review.

    Response: NMFS disagrees with the conclusions of the commenters that quarterly accountability will increase the potential for bluefin catch (landings and dead discards) to exceed the pelagic longline quota and the concern that the measures will undermine the success of the IBQ Program to date. Although quarterly accountability will modify the timing of IBQ accountability, full accountability for bluefin tuna catch will be maintained and will not affect the overall limits set on bluefin tuna catch through quotas and other measures. The regulatory change is relatively minor with respect to the full scope of Amendment 7 regulations associated with the IBQ Program, affecting only the timing of full accountability. Quarterly accountability will require vessel owners to resolve quota debt and obtain the minimum amount of IBQ prior to fishing for the first time in a calendar year quarter. NMFS believes that vessel owners will not forget that they must fully account for bluefin tuna retained or discarded dead, even if on a quarterly basis. Quarterly accountability will not result in a generalized “quota debt mindset,” but will provide vessel owners some additional flexibility to carry an amount of quota debt commensurate with their unique business operations. Vessel owners will have more flexibility in their fishing operations, but no less incentive to avoid bluefin, given that all bluefin must be accounted for using IBQ, IBQ is allocated to vessels in limited amounts, and leasing additional IBQ comes at a price. It should be noted the amount of bluefin retained or discarded dead will continue to be tracked on a trip-level basis and the appropriate balance of IBQ (either a positive balance or negative balance/‘quota debt’) will be maintained. At the end of a trip on which bluefin tuna are retained or discarded dead, a vessel's IBQ balance will be reduced by the appropriate amount. If the trip catch exceeds the vessel's available quota, the vessel will incur quota debt.

    Current landings and dead discard data do not support the commenter's concern that there will not be enough IBQ to account for all bluefin caught by the pelagic longline fleet. During 2015, the first year of the IBQ Program, there was annual accountability (i.e., vessels could fish in quota debt and there was no minimum amount of IBQ to fish, but quota debt accumulated during the full year). Trip-level accountability was not implemented until 2016. During 2015 and 2016, 35 percent and 50 percent (respectively) of the adjusted Longline Category quota was caught (not including the distinct Northeast Distant Area quota that has different IBQ accountability rules for the first 25 mt). In the unlikely event that the Longline Category quota were approached, NMFS has the authority under § 635.28(a)(3) to close the fishery when the Atlantic Tunas Longline category quota is reached, projected to be reached, or exceeded, or when there is high uncertainty regarding the estimated or documented levels of bluefin tuna catch. Lastly, the extensive vessel reporting and monitoring requirements applicable to vessels fishing with pelagic longline gear will remain in effect, including Vessel Monitoring Systems (satellite tracking) and Electronic Monitoring Systems (video cameras as associated equipment).

    Additionally, NMFS has determined that the 3-year review will be able to effectively evaluate the IBQ Program including consideration of two minor regulatory changes to the program since its inception (this final rule, and previous rule regarding the distribution of inseason quota transfers to the Longline category; 81 FR 95903, December 29, 2016). The pelagic longline fishery is a highly diverse and dynamic fishery, and NMFS believes it is important to incorporate operational flexibility into management of the fishery where possible. Analyzing the pelagic longline fishery under varying conditions may in fact enhance NMFS' ability to understand and evaluate the IBQ Program.

    Quarterly accountability will achieve a better balance between minimizing some operational constraints on fishing for target species and ensuring accountability for incidental bluefin catch by allowing a vessel owner more flexibility to determine the timing of lease transactions or level of quota debt they are comfortable maintaining over a longer period. Alleviation of the timing constraint associated with trip-level accountability will provide additional flexibility. A vessel owner may need flexibility to pay costs associated with fishing (fuel, bait, ice, labor, repairs, etc.), including the cost of leasing IBQ, on a timeline unique to their operation and finances. The opportunity to fish with a low IBQ balance or with quota debt may enable a vessel owner to continue to obtain revenue during the time period when they are looking for quota to lease and accommodate different types of fishing operations and financial obligations.

    Comment 7: One commenter was unsure of the intent of the proposed measures with respect to the balance of impacts on the operation of the fishery and the impacts on bluefin bycatch. Specifically, the commenter supported quarterly accountability, provided the primary intent is to address the economic objectives of the 2006 Consolidated HMS FMP. If the intent of the action is also to further reduce bycatch of bluefin, the commenter did not think quarterly accountability would achieve that objective.

    Response: This action, as an adjustment to Amendment 7, is consistent with all of the objectives in Amendment 7 and with all 10 national standards of the Magnuson-Stevens Act. This final rule is not anticipated to impact the overall level of bluefin bycatch by the pelagic longline fishery or the overall level of accountability, which is managed through the IBQ Program consistent with Amendment 7.

    Changes From the Proposed Rule

    Changes to regulatory text from those in the proposed rule were made to correct cross-references that were incorrect at the proposed rule stage and to improve clarity of the proposed regulations. The proposed regulatory text at § 635.15(b)(3)(i) specified that a vessel owner or operator must have “the relevant required minimum IBQ allocation for the region in which the fishing activity will occur.” This same language was added to § 635.15(b)(3)(ii) and (b)(5)(i) to improve clarity. Incorrect cross-references in § 635.15(b)(5)(i) and (ii) were corrected to refer to § 635.15(b)(9) rather than § 635.15(f).

    Classification

    The NMFS Assistant Administrator has determined that the final rule is consistent with the 2006 Consolidated HMS FMP and its amendments, the Magnuson-Stevens Act, ATCA, and other applicable law.

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

    This action is categorically excluded from the requirement to prepare an environmental assessment in accordance with NOAA Administrative Order (NAO) 216-6A. This action may appropriately be categorically excluded from the requirement to prepare either an environmental assessment or environmental impact statement in accordance with CE A1 of the Companion Manual for NAO 216-6A for an action that is a technical correction or a change to a fishery management action or regulation, which does not result in a substantial change in any of the following: Fishing location, timing, effort, authorized gear types, access to fishery resources or harvest levels. By somewhat altering the timing of the accounting for bluefin tuna by individual pelagic longline vessels, the changes in this action could also be expected to alter some fishing timing, and this is the intent of the additional flexibility offered by this action. NMFS expects this to result in some minor alterations in fishing trip timing by individual vessel owners. Timing would not, however, be altered in a way that would constitute a substantial change. In practice, this action provides some individual vessels flexibility to alter the timing of some of their fishing trips within a three-month period. Given the size of the fleet and the number of fishing trips taken, such minor variations in individual fishing trips will not result in substantial changes to fishing timing overall. Moreover, the level of fishing remains capped by the U.S. bluefin tuna quota; the timing of the fishing is substantively managed by the various subquota categories, inseason actions (e.g., regarding retention limits), and seasons. Minor modifications in individual vessel practice related to the timing of certain trips will not increase or decrease the quota nor the fishing mortality associated with that quota or have any other environmental effects. The annual U.S. bluefin tuna quota and subquota allocations to the Longline category will not be affected by this action.

    NMFS has prepared a Regulatory Impact Review (RIR) and a Final Regulatory Flexibility Analysis (FRFA), which present and analyze anticipated social and economic impacts of the alternatives contained in this final rule. The list of alternatives and their analyses are provided in the RIR and are not repeated here in their entirety. A copy of the RIR prepared for this final rule is available from NMFS (see ADDRESSES).

    A FRFA was prepared, as required by section 604 of the Regulatory Flexibility Act (RFA, 5 U.S.C. 604 et seq.), and is included below. The FRFA describes the economic impact this rule will have on small entities. A description of the action, why it is being implemented, and the legal basis for this action are contained in the SUMMARY section of the preamble.

    The goal of the RFA is to minimize the economic burden of federal regulations on small entities. To that end, the RFA directs federal agencies to assess whether the regulation is likely to result in significant economic impacts to a substantial number of small entities, and identify and analyze any significant alternatives to the rule that accomplish the objectives of applicable statutes and minimizes any significant effects on small entities.

    Statement of the Need for and Objectives of This Final Rule

    In compliance with section 604(b)(1) of the RFA, this action is needed is to provide some additional flexibility regarding the timing of accounting for bluefin tuna catch with the IBQ Program in a manner that maintains accountability for bluefin tuna bycatch and a strong incentive for pelagic longline vessels to avoid interactions with bluefin tuna, while minimizing constraints on fishing for target species and, to the greatest extent possible, the socioeconomic impacts on affected fisheries.

    Current regulations require permitted Atlantic Tunas Longline vessels to possess a minimum amount of IBQ to depart on a fishing trip with pelagic longline gear and account for bluefin tuna catch (fish retained or discarded dead) using IBQ (0.25 mt for a trip in the Gulf of Mexico and 0.125 mt for a trip in the Atlantic). At the end of a trip on which bluefin tuna are caught, a vessel's IBQ balance is reduced by the amount caught. If the trip catch exceeds the vessel's available quota, the vessel will incur quota debt (i.e., exceeding its available IBQ balance). In this case, the regulations required the vessel to obtain additional IBQ through leasing to resolve that quota debt and to acquire the minimum IBQ amount before departing on a subsequent trip using pelagic longline gear. Thus, a pelagic longline vessel owner who took consecutive trips had to account for bluefin tuna catch in almost real time, effectively creating a system of “trip-level accountability” for those vessels.

    This action modifies these rules to require vessels to resolve quota debt on a quarterly basis (i.e., they must balance the debt and obtain the minimum amount required to depart on a fishing trip before going on a trip in the next quarter). Vessels will be allowed to fish with a low IBQ balance or with quota debt during a calendar quarter. Vessels will still be required to report bluefin tuna catch at the end of each trip (and account for it with IBQ), but this regulatory change would provide the flexibility to fish even if the vessel has less than the minimum amount of IBQ, including quota debt, until the first fishing trip in each calendar quarter. For example, under the new measure, after the initial trip, if a vessel has a low balance or quota debt in January 2018, the vessel will be allowed to fish without first resolving that low balance or quota debt through March 31, 2018. In order to depart on a pelagic longline fishing trip in the following quarter, starting April 1, 2018, that vessel will need to lease additional IBQ resolve the quota debt and acquire the minimum amount of IBQ required to fish.

    The rule will provide flexibility for two important operational business decisions made by vessel owners: Decisions regarding quota balance and quota debt (subject to full accounting quarterly) and decisions regarding the timing and price at which they lease additional quota. Importantly, this regulatory change will maintain vessel accountability for bluefin tuna catch and the associated incentives for vessel operators to minimize catch of bluefin tuna. By changing the timing of the accountability, however, the proposed rule will provide some additional flexibility in vessel operations and thus provide vessel owners more of a reasonable opportunity to catch available quota for target species (i.e., swordfish and yellowfin tuna).

    A Summary of the Significant Issues Raised by the Public Comments in Response to the Initial Regulatory Flexibility Analysis, a Summary of the Agency's Assessment of Such Issues, and a Statement of Any Changes Made in the Rule as a Result of Such Comments

    In compliance with section 604(a)(2) of the RFA, NMFS reviewed the public comments in response to the proposed rule and the Initial Regulatory Flexibility Analysis (IRFA). While NFMS received several comments regarding the proposed rule, none of those comments was specific to the IRFA. In addition, no comments were received by the Chief Counsel for Advocacy of the Small Business Administration in response to the proposed rule. The Agency did not make any changes as a result of comments.

    Description and Estimate of the Number of Small Entities to Which the Final Rule Will Apply

    Section 604(b)(4) of the RFA requires agencies to provide an estimate of the number of small entities to which the rule will apply. The SBA has established size criteria for all major industry sectors in the United States, including fish harvesters. Provision is made under SBA's regulations for an agency to develop its own industry-specific size standards after consultation with the SBA Office of Advocacy and an opportunity for public comment (see 13 CFR 121.903(c)). Under this provision, NMFS may establish size standards that differ from those established by the SBA Office of Size Standards, but only for use by NMFS and only for the purpose of conducting an analysis of economic effects in fulfillment of the agency's obligations under the RFA. To utilize this provision, NMFS must publish such size standards in the Federal Register, which NMFS did on December 29, 2015 (80 FR 81194, December 29, 2015).

    In this final rule effective on July 1, 2016, NMFS established a small business size standard of $11 million in annual gross receipts for all businesses in the commercial fishing industry (NAICS 11411) for RFA compliance purposes. NMFS considers all HMS Atlantic Tunas Longline permit holders (280 as of October 2016) to be small entities because these vessels have reported annual gross receipts of less than $11 million for commercial fishing. The average annual gross revenue per active pelagic longline vessel was estimated to be $187,000 based on the 170 active vessels between 2006 and 2012 that produced an estimated $31.8 million in revenue annually. The maximum annual revenue for any pelagic longline vessel between 2006 and 2015 was $1.9 million, well below the NMFS small business size threshold of $11 million in gross receipts for commercial fishing. Therefore, NMFS considers all Atlantic Tunas Longline permit holders to be small entities.

    NMFS has determined that this rule will apply to the small businesses associated with the 136 Atlantic Tunas Longline permits with IBQ shares and the additional permitted Atlantic Tunas Longline vessels that fish with quota leased through the IBQ Program. NMFS has determined that this action will not likely directly affect any small organizations or small government jurisdictions defined under the RFA.

    Description of the Projected Reporting, Record-Keeping, and Other Compliance Requirements of the Rule, Including an Estimate of the Classes of Small Entities That Would Be Subject to the Requirements of the Report or Record

    Section 604(a)(5) of the RFA requires agencies to describe any new reporting, record-keeping and other compliance requirements. This rule does not contain any new collection of information, reporting, or record-keeping requirements but only modifies existing requirements.

    Description of the Steps the Agency Has Taken To Minimize the Significant Economic Impact on Small Entities Consistent With the States Objectives of Applicable Statues, Including a Statement of the Factual, Policy, and Legal Reasons for Selecting the Alternative Adopted in the Final Rule and the Reason That Each One of the Other Significant Alternatives to the Rule Considered by the Agency Which Affect Small Entities Was Rejected

    One of the requirements of a FRFA is to describe any significant alternatives to the rule which accomplish the stated objectives of applicable statutes and which minimize any significant economic impact of the rule on small entities. The analysis shall discuss significant alternatives such as:

    1. Establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities;

    2. Clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities;

    3. Use of performance rather than design standards; and

    4. Exemptions from coverage of the rule, or any part thereof, for small entities.

    These categories of alternatives are described at 5 U.S.C. 603 (c)(1)-(4). NMFS examined each of these categories of alternatives. Regarding the first and fourth categories, NMFS cannot establish differing compliance or reporting requirements for small entities or exempt small entities from coverage of the rule or parts of it because all of the businesses impacted by this rule are considered small entities and thus the requirements are already designed for small entities. NMFS examined alternatives that fall under the second category, which requires agencies to consider whether they can clarify, consolidate, or simplify compliance and reporting requirements under the rule for small entities. The quarterly and annual accountability alternatives in the rule would reduce the burden of complying with the existing trip level accountability requirement and thus would fall into this category of alternatives by simplifying compliance and reporting requirements for small entities. The IBQ Program was designed to adhere to performance standards, the third category above; modifications to the regulations implementing the IBQ Program simply make adjustments to the administration of those underlying performance standards. Thus, NMFS has considered the significant alternatives to the rule and focused on simplifying compliance and reporting requirements associated with IBQ accountability in order to minimize any significant economic impact of the rule on small entities.

    NMFS analyzed several different alternatives in this rulemaking, and the rationale that NMFS used to determine the alternative for achieving the desired objectives is described below.

    The first alternative is the “no action” (status quo) alternative. The second alternative, the preferred alternative, would adjust the Atlantic HMS regulations to require the pelagic longline fishery to account for bycatch of bluefin tuna using IBQ on a quarterly basis instead of before embarking on a trip after incurring quota debt. The third alternative would adjust the Atlantic HMS regulations to require the pelagic longline fishery to account for bycatch of bluefin tuna using IBQ on an annual basis instead of before embarking on a trip after incurring quota debt. The economic impacts of these three alternatives are detailed below. Under all three alternatives, a vessel's IBQ balance would be reduced to account for bluefin tuna discarded dead or retained immediately after the catch is reported in the IBQ system. The difference among the alternatives is the timing of when quota debt or a low balance of IBQ precludes fishing and must be resolved prior to departing on a subsequent trip using pelagic longline gear (trip level, quarterly, or annually).

    Under the “no action” alternative, NMFS would maintain the current regulations regarding accounting for bluefin tuna catch and prerequisites for departing on a fishing trip with pelagic longline gear on board. Current regulations require permitted Atlantic Tunas Longline vessel owners (or vessel operators, where applicable) to possess a minimum amount of IBQ to depart on a fishing trip with pelagic longline gear and account for bluefin tuna caught (retained or discarded dead) using IBQ at the end of the trip. Therefore, at the end of a trip on which bluefin tuna are caught, a vessel owner's balance of IBQ would be reduced, possibly below the minimum amount needed for a subsequent trip, or the vessel owner may incur quota debt by exceeding their IBQ balance. In either of these cases, the vessel owner must obtain additional IBQ through leasing in order to satisfy the minimum requirement (and resolve any quota debt they may have) prior to departing on another trip using pelagic longline gear. The net effect of these rules is that a pelagic longline vessel owner that takes multiple sequential trips must account for bluefin tuna in real-time, which NMFS refers to as “trip-level accountability.”

    This approach was implemented by Amendment 7, but effectiveness was delayed until January 1, 2016, in contrast to most of the other Amendment 7 measures that were effective on January 1, 2015. During 2016, there were 1,025 pelagic longline trips by 85 vessels, which deployed 6,885 sets and 5,217,547 hooks. During 2016, there were 81 IBQ lease transactions with a total of 141,183 lb IBQ leased and an average price of $2.52 per pound (weighted average). There were a total of 17 vessels that incurred quota debt at some time during the year, with a total amount of 40,237 lb of debt incurred and resolved. Mean revenue per trip during 2016 based on logbook, dealer, and weigh out data was $24,707.

    During 2016, pelagic longline vessel owners successfully accounted for bluefin tuna catch using the IBQ Program and leasing quota among themselves (and from Purse Seine fishery participants) as needed in order to fully account for bluefin tuna catch using IBQ. However, since implementation, pelagic longline fishery participants have consistently requested some additional flexibility due to the costs associated with leasing IBQ, which can affect profitability of target species catch, as well as the concern that vessel owners appear to be unwilling to lease IBQ at certain times, uncertainties regarding the availability of IBQ to lease, and the impacts of other constraints associated with Amendment 7, including additional gear restricted areas and VMS and electronic monitoring requirements. The ability of vessel owners to account for bluefin tuna using allocated quota or IBQ leased at an affordable price is key to the success of the IBQ Program. A trend that may in part reflect the uncertainties and constraints associated with trip-level accountability is the lower amount of fishing effort in 2016 compared to 2015 (despite the active IBQ leasing market in 2016). For example, the number of trips, active vessels, longline sets and hooks fished were all lower in 2016 than they were in 2015. The No Action alternative would not, however, provide the timing flexibility benefits that could facilitate better operational and economic decisions and options for individual vessel owners who need to lease IBQ, and NMFS therefore does not prefer the no action alternative.

    Under the second alternative (preferred), NMFS would adjust the Atlantic HMS regulations to require the pelagic longline fishery to account for bycatch of bluefin tuna using IBQ on a quarterly basis instead of before commencing any fishing trip while in quota debt or with less than the minimum required IBQ balance. The preferred alternative would provide flexibility for two important operational business decisions made by vessel owners. First, decisions regarding quota balance and quota debt (subject to full accounting quarterly); and second, decisions regarding the timing and price at which they lease additional quota. It is likely that the vessels would take advantage of increased operational flexibility as a result of removal of the constraints associated with the trip-level accountability. Specifically, operational flexibility associated with the preferred alternative may enable vessels to fish at more optimal times and avoid delay in the timing of a trip due to a low IBQ balance and issues related to availability of quota to lease; lease IBQ at a lower price by providing the flexibility for a vessel owner to `shop around'; reduce uncertainty in the IBQ market such that vessels are willing to plan and undertake fishing trips they previously may not have; and improve their cash flow by allowing fishing while in quota debt (i.e., accrual of revenue with which to lease additional IBQ). In 2016, each additional trip earned vessels on average $24,707 in revenue.

    NMFS used the available data on the IBQ lease markets to estimate the potential reduction in transaction costs (mainly labor costs) associated with moving from trip-level accountability to quarterly accountability. There were 33 vessels that leased quota in 2016 and they were involved in 81 transactions. On average, that is almost 2.5 transactions per vessel that entered the IBQ lease market. Under the quarterly accountability requirement of Alternative 2, these vessels might be able to reduce their number of lease transactions to one lease per quarter, which would reduce business costs and have economic and operational benefits. Based on data from 2016 and the first-half of 2017, quarterly accountability could lead to 51 fewer lease transactions if vessel owners reduced their number of lease transaction to one per quarter under this alternative. Each lease transaction costs vessel owners additional labor time to search for available IBQ, contact potential lessors, negotiate prices, and complete the transactions. NMFS estimates that could involve approximately four hours per transaction. Using the Bureau of Labor Statistics mean hourly wage rate for first-line supervisors of farming, fishing and forestry workers of $23 per hour in 2016 (https://www.bls.gov/oes/current/oes451011.htm), NMFS estimates the value of the time involved in these additional 51 leases to be approximately worth $4,692 (51 transactions × 4 hours × $23/hr). Since this amount is based on six quarters, the annual estimated savings in the time associated with these leases is approximately $3,128 per year ($4,692/1.5 years). Given that 33 vessels were involved in leasing in 2016, the per vessel savings per year would be approximately $95 per vessel.

    Although it is not possible to precisely quantify the economic impacts of the preferred alternative, the no action alternative with trip-level accountability (i.e., the regulations implemented in 2016) and the third alternative with annual accountability (i.e., the regulations implemented in 2015) may be informative about the likely impacts of the alternatives. The amount of flexibility to account for bluefin tuna catch afforded by the preferred alternative is likely somewhere in between the two other alternatives: Trip-level accountability (no action alternative) and annual accountability (third alternative).

    Under the third alternative, there would be no minimum amount of IBQ required to fish and vessels would only be required to account for their catch at the end of the year. The third alternative is the same as the IBQ accounting regulations that were in effect during 2015. During 2015, there were 1,124 pelagic longline trips, by 104 vessels, which deployed 7,769 sets and 5,549,451 hooks. During 2015, there were 49 IBQ lease transactions from 24 distinct vessels with a total of 126,407 lb IBQ leased, and an average price of $3.46 per pound (weighted average). There were a total of 16 vessels that incurred quota debt, with a total amount of 42,746 lb. The mean revenue per trip during 2015 based on dealer data was $17,603 (not including bluefin tuna or dolphin revenue). Although it is possible to glean some insights from data from 2015 as the basis for evaluating potential economic impacts of the third alternative, the fishing behavior of the pelagic longline fleet during 2015, the first year of Amendment 7 regulations, was likely heavily influenced by the newness of the regulations and the relatively high amount of uncertainty in 2015.

    There were approximately 2.0 lease transactions per vessel in 2015 versus 2.5 leases per vessel in 2016. Assuming the 33 vessels that leased in 2016 only leased 2 times per year under annual accountability, the number of leases would be reduced from 81 to 66, a reduction of 15 transactions. This reduction in 15 transactions taking approximately 4 hours of an owner's time would be worth $1,380 in labor costs per year (15 × 4 hours × $23/hr). Given the 33 vessels that leased in 2016, the per vessel cost savings would be approximately $42 per vessel per year. Alternatively, if vessel owners could reduce the number of leases to one per year, the number of lease transactions could be reduced down to 33 transactions based on 2016 lease activity. This would result in 48 fewer transactions, and would result in a savings of up to $4,416 per year for the whole fleet or $134 per vessel that leased. However, based on the 2015 IBQ lease data under annual accountability that year, it is unlikely that the number of lease transactions would be reduced by this much. It is likely that there would be more leasing activity associated with this alternative than occurred during 2015, since 2015 was the initial implementation of the IBQ Program and participants were just learning how the IBQ lease market worked and which IBQ Program participants were interested in leasing IBQ, as well as a lower average price per pound for leased IBQ.

    There is uncertainty as to the full impact of moving from trip-level accountability to annual accountability. Annual accountability might cause vessel owners to wait until December to try to lease quota. Quota available for lease in December might become scarcer and this holiday period might cause fewer IBQ shareholders to participate in the market. This increased scarcity of IBQ available for lease and the tight end of the year timeframe might result in spikes in the price for IBQ, thus driving up costs and potentially leaving some vessel owners unable to resolve their quota debt at the last minute as the year ends. NMFS prefers to incrementally move to quarterly accountability under Alternative 2 to avoid some of the risks associated with Alternative 3.

    List of Subjects in 50 CFR Part 635

    Fisheries, Fishing, Fishing vessels, Foreign relations, Imports, Penalties, Reporting and recordkeeping requirements, Treaties.

    Dated: December 22, 2017. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 635 is amended as follows:

    PART 635—ATLANTIC HIGHLY MIGRATORY SPECIES 1. The authority citation for part 635 continues to read as follows: Authority:

    16 U.S.C. 971 et seq.; 16 U.S.C. 1801 et seq.

    2. In § 635.15, revise paragraphs (b)(3), (b)(4)(i) and (ii), (b)(5)(i) and (ii), and (b)(8)(i) to read as follows:
    § 635.15 Individual bluefin tuna quotas.

    (b) * * *

    (3) Minimum IBQ allocation. For purposes of this paragraph (b), calendar year quarters start on January 1, April 1, July 1, and October 1.

    (i) First fishing trip in a calendar year quarter. Before departing on the first fishing trip in a calendar year quarter, a vessel with an eligible Atlantic Tunas Longline category permit that fishes with or has pelagic longline gear onboard must have the minimum IBQ allocation for either the Gulf of Mexico or Atlantic, depending on fishing location. The minimum IBQ allocation for a vessel fishing in the Gulf of Mexico, or departing for a fishing trip in the Gulf of Mexico, is 0.25 mt ww (551 lb ww). The minimum IBQ allocation for a vessel fishing in the Atlantic or departing for a fishing trip in the Atlantic is 0.125 mt ww (276 lb ww). A vessel owner or operator may not declare into or depart on the first fishing trip in a calendar year quarter with pelagic longline gear onboard unless it has the relevant required minimum IBQ allocation for the region in which the fishing activity will occur.

    (ii) Subsequent fishing trips in a calendar year quarter. Subsequent to the first fishing trip in a calendar year quarter, a vessel owner or operator may declare into or depart on other fishing trips with pelagic longline gear onboard with less than the relevant minimum IBQ allocation for the region in which the fishing activity will occur, but only within that same calendar year quarter.

    (4) Accounting for bluefin tuna caught. (i) With the exception of vessels fishing in the NED, in compliance with the requirements of paragraph (b)(8) of this section, all bluefin tuna catch (dead discards and landings) must be deducted from the vessel's IBQ allocation at the end of each pelagic longline trip.

    (ii) If the amount of bluefin tuna catch on a particular trip exceeds the amount of the vessel's IBQ allocation or results in an IBQ balance less than the minimum amount described in paragraph (b)(3) of this section, the vessel may continue to fish, complete the trip, and depart on subsequent trips within the same calendar year quarter. The vessel must resolve any quota debt (see paragraph (b)(5) of this section) before declaring into or departing on a fishing trip with pelagic longline gear onboard in a subsequent calendar year quarter by acquiring adequate IBQ allocation to resolve the debt and acquire the needed minimum allocation through leasing, as described in paragraph (c) of this section.

    (5) * * *

    (i) Quarter level quota debt. A vessel with quota debt incurred in a given calendar year quarter cannot depart on a trip with pelagic longline gear onboard in a subsequent calendar year quarter until the vessel leases allocation or receives additional allocation (see paragraphs (c) and (b)(9) of this section), and applies allocation for the appropriate region to settle the quota debt such that the vessel has the relevant minimum quota allocation required to fish for the region in which the fishing activity will occur (see paragraph (b)(3) of this section). For example, a vessel with quota debt incurred during January through March may not depart on a trip with pelagic longline gear onboard during April through June (or subsequent quarters) until the quota debt has been resolved such that the vessel has the relevant minimum quota allocation required to fish for the region in which the fishing activity will occur.

    (ii) Annual level quota debt. If, by the end of the fishing year, a permit holder does not have adequate allocation to settle its vessel's quota debt through leasing or additional allocation (see paragraphs (c) and (b)(9) of this section), the vessel's allocation will be reduced in the amount equal to the quota debt in the subsequent year or years until the quota debt is fully accounted for. A vessel may not depart on any pelagic longline trips if it has outstanding quota debt from a previous fishing year.

    (8) * * *

    (i) When NED bluefin quota is available. Permitted vessels fishing with pelagic longline gear may fish in the NED, and any bluefin catch will count toward the ICCAT-allocated separate NED quota until the NED quota has been filled. Permitted vessels fishing in the NED must still fish in accordance with the relevant minimum IBQ allocation requirements specified under paragraph (b)(3) of this section to depart on a trip using pelagic longline gear.

    3. In § 635.71, revise paragraphs (b)(48) and (56) to read as follows:
    § 635.71 Prohibitions.

    (b) * * *

    (48) Depart on a fishing trip or deploy or fish with any fishing gear from a vessel with a pelagic longline on board without accounting for bluefin caught as specified in § 635.15(b)(4).

    (56) Fish with or have pelagic longline gear on board if any quota debt associated with the permit from a preceding calendar year quarter has not been settled as specified in § 635.15(b)(5)(i).

    [FR Doc. 2017-28046 Filed 12-27-17; 8:45 am] BILLING CODE 3510-22-P
    82 248 Thursday, December 28, 2017 Proposed Rules DEPARTMENT OF ENERGY Federal Energy Regulatory Commission 18 CFR Part 40 [Docket Nos. RM18-2-000 and AD17-9-000] Cyber Security Incident Reporting Reliability Standards AGENCY:

    Federal Energy Regulatory Commission, DOE.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    The Federal Energy Regulatory Commission (Commission) proposes to direct the North American Electric Reliability Corporation (NERC), the Commission-certified Electric Reliability Organization, to develop and submit modifications to the NERC Reliability Standards to improve mandatory reporting of Cyber Security Incidents, including incidents that might facilitate subsequent efforts to harm the reliable operation of the bulk electric system.

    DATES:

    Comments are due February 26, 2018.

    ADDRESSES:

    Comments, identified by docket number, may be filed in the following ways:

    • Electronic Filing through http://www.ferc.gov. Documents created electronically using word processing software should be filed in native applications or print-to-PDF format and not in a scanned format.

    • Mail/Hand Delivery: Those unable to file electronically may mail or hand-deliver comments to: Federal Energy Regulatory Commission, Secretary of the Commission, 888 First Street NE, Washington, DC 20426.

    Instructions: For detailed instructions on submitting comments and additional information on the rulemaking process, see the Comment Procedures Section of this document.

    FOR FURTHER INFORMATION CONTACT:

    Margaret Scott (Technical Information), Office of Electric Reliability, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, (202) 502-6704, [email protected] Kevin Ryan (Legal Information), Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, (202) 502-6840, [email protected] SUPPLEMENTARY INFORMATION:

    1. The Foundation for Resilient Societies filed a petition asking the Commission to require additional measures for malware detection, mitigation, removal and reporting. We decline to propose additional Reliability Standard measures at this time for malware detection, mitigation and removal, based on the scope of existing Reliability Standards, Commission-directed improvements already being developed and other ongoing efforts. However, we propose to direct broader reporting requirements. Currently, incidents must be reported only if they have “compromised or disrupted one or more reliability tasks,” and we propose to require reporting of certain incidents even before they have caused such harm or if they did not themselves cause any harm.

    2. Specifically, pursuant to section 215(d)(5) of the Federal Power Act (FPA),1 the Commission proposes to direct the North American Electric Reliability Corporation (NERC), the Commission-certified Electric Reliability Organization (ERO), to develop and submit modifications to the Critical Infrastructure Protection (CIP) Reliability Standards to improve the reporting of Cyber Security Incidents, including incidents that might facilitate subsequent efforts to harm the reliable operation of the bulk electric system. The proposed development of modified mandatory reporting requirements is intended to improve awareness of existing and future cyber security threats and potential vulnerabilities. We propose to continue having the reports go to the Electricity Information Sharing and Analysis Center (E-ISAC) instead of the Commission, but we propose to require that reports also be sent to the Industrial Control Systems Cyber Emergency Response Team (ICS-CERT) and that NERC file an annual, public, and anonymized summary of the reports.

    1 16 U.S.C. 824o(d)(5).

    3. The current reporting threshold for Cyber Security Incidents, as set forth in Reliability Standard CIP-008-5 (Cyber Security—Incident Reporting and Response Planning) together with the definition of Reportable Cyber Security Incident, may understate the true scope of cyber-related threats facing the Bulk-Power System. The reporting of cyber-related incidents, in particular the lack of any reported incidents in 2015 and 2016, suggests a gap in the current mandatory reporting requirements. This reporting gap may result in a lack of timely awareness for responsible entities subject to compliance with the CIP Reliability Standards, NERC, and the Commission. As discussed below, NERC's 2017 State of Reliability report echoed this concern in stating that the “mandatory reporting process does not create an accurate picture of cyber security risk . . .” 2

    2 NERC, 2017 State of Reliability Report at 4 (June 2017), http://www.nerc.com/pa/RAPA/PA/Performance%20Analysis%20DL/SOR_2017_MASTER_20170613.pdf.

    4. To address this gap, pursuant to section 215(d)(5) of the FPA, the Commission proposes to direct NERC to develop modifications to the CIP Reliability Standards to include the mandatory reporting of Cyber Security Incidents that compromise, or attempt to compromise, a responsible entity's Electronic Security Perimeter (ESP) or associated Electronic Access Control or Monitoring Systems (EACMS).3 Such modifications will enhance awareness for NERC, industry, the Commission, other federal and state entities, and interested stakeholders regarding existing or developing cyber security threats. In addition, we propose to direct NERC to modify the CIP Reliability Standards to specify the required information in Cyber Security Incident reports to improve the quality of reporting and allow for ease of comparison by ensuring that each report includes specified fields of information. Finally, we propose to direct NERC to modify the CIP Reliability Standards to establish a deadline for filing a report once a compromise or disruption to reliable bulk electric system operation, or an attempted compromise or disruption, is identified by a responsible entity.

    3 The NERC Glossary of Terms Used in NERC Reliability Standards (October 6, 2017) (NERC Glossary) defines “ESP” as “[t]he logical border surrounding a network to which BES Cyber Systems are connected using a routable protocol.” The NERC Glossary defines “EACMS” as “Cyber Assets that perform electronic access control or electronic access monitoring of the Electronic Security Perimeter(s) or BES Cyber Systems. This includes Intermediate Systems.”

    I. Background A. Section 215 and Mandatory Reliability Standards

    5. Section 215 of the FPA requires a Commission-certified ERO to develop mandatory and enforceable Reliability Standards, subject to Commission review and approval. Reliability Standards may be enforced by the ERO, subject to Commission oversight, or by the Commission independently.4 Pursuant to section 215 of the FPA, the Commission established a process to select and certify an ERO,5 and subsequently certified NERC.6

    4 16 U.S.C. 824o(e).

    5Rules Concerning Certification of the Electric Reliability Organization; and Procedures for the Establishment, Approval, and Enforcement of Electric Reliability Standards, Order No. 672, FERC Stats. & Regs. ¶ 31,204 (cross-referenced at 114 FERC ¶ 61,104), order on reh'g, Order No. 672-A, FERC Stats. & Regs. ¶ 31,212 (cross-referenced at 114 FERC ¶ 61,328) (2006).

    6North American Electric Reliability Corp., 116 FERC ¶ 61,062, order on reh'g and compliance, 117 FERC ¶ 61,126 (2006), aff'd sub nom. Alcoa, Inc. v. FERC, 564 F.3d 1342 (DC Cir. 2009).

    B. Foundation for Resilient Societies' Petition

    6. On January 13, 2017, the Foundation for Resilient Societies (Resilient Societies) filed a petition requesting that the Commission initiate a rulemaking to require an enhanced Reliability Standard for malware detection, reporting, mitigation and removal from the Bulk-Power System.7 Resilient Societies stated that the Bulk-Power System is increasingly at risk from malware. Resilient Societies also maintained that current mandatory and voluntary reporting methods underreport the actual annual rate of occurrence of cybersecurity incidents in the U.S. electric grid.

    7 Resilient Societies' filings and responsive comments are available on the Commission's eLibrary document retrieval system in Docket No. AD17-9-000.

    7. In support of its petition, Resilient Societies asserted that evidence in the public domain shows that electric grids in the U.S. and critical infrastructure that depends upon reliable power are increasingly at risk from malware, resulting in a threat of widespread, long-term blackouts. Resilient Societies asserted that Bulk-Power System assets are interconnected with the public internet, which could allow foreign adversaries to implant malware in electric utility computer systems. Resilient Societies stated that malware can infect high, medium, and low impact BES Cyber Systems,8 and, once inserted, can be a pathway for cyber-attackers.9 Resilient Societies further stated that an infected low impact BES Cyber System can serve as an entry point from where an adversary can attack medium and high impact BES Cyber Systems. Resilient Societies asserted that a “simultaneous cyberattack on many low impact assets may cause greater impact than an attack on a single high impact asset.” 10

    8 Reliability Standard CIP-002-5.1a (Cyber Security System Categorization) provides a “tiered” approach to cybersecurity requirements, based on classifications of high, medium and low impact BES Cyber Systems.

    9 BES Cyber System is defined by NERC as “[o]ne or more BES Cyber Assets logically grouped by a responsible entity to perform one or more reliability tasks for a functional entity.” NERC Glossary. The acronym BES refers to the bulk electric system.

    10 Resilient Societies Petition at 2-3.

    8. Resilient Societies alleged that it has found gaps relating to malware protection requirements in the current Commission-approved CIP Reliability Standards. In particular, Resilient Societies maintained that the ESP concept, used in the CIP Reliability Standards, suffers from several fundamental flaws. Specifically, Resilient Societies asserted that: (1) Cyber attacks on systems outside the ESP can take down systems within it; (2) passwords and other user credentials associated with BES Cyber Systems may be stored on systems outside the ESP; and (3) Electronic Access Points that control access to systems within the ESP may be breached. Resilient Societies also raised a concern that there is currently no required reporting of malware infections, both inside and outside the ESP.11

    11Id. at 10-12.

    9. Based on its analysis, Resilient Societies offered several suggestions for the essential components of an enhanced malware Reliability Standard and what the technical elements of an enhanced malware standard might include. The essentials identified by Resilient Societies include: (1) Malware detection; (2) malware reporting (regardless of whether reliability tasks of a functional entity have been compromised or disrupted); (3) malware mitigation; and (4) mandatory malware removal. Resilient Societies also provided a list of possible technical elements for an enhanced malware Reliability Standard.12

    12Id. at 14-15.

    10. In support of its request for an enhanced Reliability Standard for malware reporting, Resilient Societies asserted that current mandatory and voluntary cybersecurity incident reporting methodologies are not representative of the actual annual rate of occurrence of cybersecurity incidents in the U.S. electric grid. Resilient Societies cited NERC's State of Reliability Reports for 2014 and 2015, noting that NERC identified only three Reportable Cyber Security Incidents in 2014 and zero Reportable Cyber Security Incidents in 2015. In addition, Resilient Societies observed that according to Department of Energy (DOE) Disturbance Reports (OE-417), there were three reported cybersecurity incidents in 2014, zero in 2015, and two in 2016. Finally, Resilient Societies stated that in contrast to the number of cybersecurity incidents reported through NERC and DOE Form OE-417, ICS-CERT responded to 79 cybersecurity incidents in 2014 and 46 cybersecurity incidents in 2015.13

    13Id. at 8-9.

    11. On February 17, 2017, Resilient Societies filed supplemental comments that included an appendix containing a February 10, 2017 Department of Homeland Security (DHS) Report, “Enhanced Analysis of GRIZZLY STEPPE Activity,” which, Resilient Societies alleged, “provides independent validation of the need for a mandatory standard to detect, report, mitigate, and remove identified malware from the Bulk Power System.” 14

    14 Resilient Societies Supplemental Comments at 4.

    Comments on Petition

    12. The Commission received five sets of comments in response to Resilient Societies' petition. Among the commenters, NERC, Trade Associations 15 and International Transmission Company (ITC) stated that the Commission should not act on Resilient Societies' petition, claiming that the issues raised therein are adequately addressed in the currently-effective CIP Reliability Standards or are, in response to outstanding Commission directives, the subject of ongoing standards projects. The other two commenters, Kaspersky Lab, and David Bardin, supported Resilient Societies' petition to better address the detection, reporting and mitigation of malware.

    15 American Public Power Association, Edison Electric Institute, Electricity Consumers Resource Council, Electric Power Supply Association, Large Public Power Council, National Rural Electric Cooperative Association, and Transmission Access Policy Study Group.

    13. NERC opposed Resilient Societies' petition because, NERC asserted, existing CIP Reliability Standards, current standard development activity and other cyber security efforts adequately address the threats, vulnerabilities and risks associated with malware detailed in the Resilient Societies' petition. Accordingly, NERC concluded that a new Reliability Standard to address malware detection, reporting, mitigation and removal is not necessary at this time.16 With regard to the Commission-approved CIP Reliability Standards, NERC stated that several existing requirements require responsible entities to implement protections to address the threat of malware.17 NERC identified seven currently-effective CIP requirements that it alleged address the risks associated with malware.18

    16 NERC Comments at 1-2.

    17Id. at 2.

    18Id. at 5-6.

    14. With regard to current standard development activity, NERC observed that modifications to the CIP Reliability Standards being developed in response to Commission Order Nos. 822 and 829 will further mitigate the risks posed by malware.19 Specifically, NERC stated that the modifications under development in response to Order No. 822 address malware protections for assets containing low impact BES Cyber Systems and protections for communication links and sensitive data communicated between bulk electric system control centers. In particular, NERC identified proposed Reliability Standard CIP-003-7 and stated that the proposed Reliability Standard clarifies electronic access controls and mitigates the introduction of malicious code from transient devices for assets containing low impact BES Cyber Systems.20

    19Revised Critical Infrastructure Protection Reliability Standards, Order No. 822, 154 FERC ¶ 61,037, reh'g denied, Order No. 822-A, 156 FERC ¶ 61,052 (2016); Revised Critical Infrastructure Protection Reliability Standards, Order No. 829, 156 FERC ¶ 61,050 (2016).

    20 NERC Comments at 8. On October 19, 2017, the Commission issued a notice of proposed rulemaking proposing to approve proposed Reliability Standard CIP-003-7. See Revised Critical Infrastructure Protection Reliability Standard CIP-003-7—Cyber Security—Security Management Controls, Notice of Proposed Rulemaking, 82 FR 49,541 (October 26, 2017), 161 FERC ¶ 61,047 (2017).

    15. NERC stated that proposed Reliability Standard CIP-013-1 (Cyber Security—Supply Chain Risk Management), developed in response to Order No. 829, requires responsible entities to, among other things, implement at least one process to verify the integrity and authenticity of certain software and firmware and implement at least one process to control vendor remote access to high and medium impact BES Cyber Systems.21 For low impact BES Cyber Systems, NERC explained that the proposed Reliability Standard requires responsible entities to have at least one cyber security policy that addresses integrity and authenticity of software and hardware and to adopt controls for vendor-initiated remote access. NERC states that this proposed Reliability Standard shows NERC and industry “are taking significant steps in addressing the risks posed by malware campaigns targeting supply chain vendors.” 22

    21 On September 26, 2017, NERC submitted proposed Reliability Standards CIP-013-1, CIP-005-6 and CIP-010-3 for Commission approval. NERC's filing is available on the Commission's eLibrary document retrieval system in Docket No. RM17-13-000 and on the NERC website, www.nerc.com.

    22 NERC Comments at 9.

    16. With regard to other ongoing cyber security efforts, NERC noted the activities of the E-ISAC. Specifically, NERC stated that, through the E-ISAC, NERC has “fostered an information sharing culture that promotes a proactive approach towards identification of malware, pooling of resources to combat malware, and sharing of best practices based on lessons learned, among other things.” 23 In addition, NERC maintained that it facilitates industry information sharing in two other ways: NERC Alerts and the activities of the Critical Infrastructure Protection Committee (CIPC). NERC concluded that these activities promote necessary information sharing of cyber security threats and help foster the type of incident reporting requested in Resilient Societies' petition.24

    23Id.

    24Id. at 12-13.

    17. While acknowledging the validity of concerns regarding the threat malware poses to the bulk electric system, ITC asserted that Resilient Societies' conclusion that existing CIP Reliability Standards contain gaps with respect to malware defense is inaccurate. ITC stated that, contrary to Resilient Societies' conclusions, the lack of specific malware-related controls in the CIP Reliability Standards “reflects a critically important objectives-based approach which the Commission has intentionally adopted.” 25 ITC explained that the existing CIP Reliability Standards “collectively mandate robust and effective malware security measures, through both direct security measures that thwart malware attacks, and through complementary measures, such as personnel training against social engineering attacks.” 26 ITC concluded that the specific controls in Resilient Societies' requests that the Commission mandate are duplicative, unnecessary and/or overly and unreasonably burdensome, and would make the bulk electric system less reliable and more vulnerable compared to the existing protections.27

    25 ITC Comments at 2-3.

    26Id. at 3.

    27Id. at 2-3.

    18. Trade Associations stated that the risks raised in Resilient Societies' petition are addressed under the current CIP Reliability Standards and in ongoing Commission dockets and standards development efforts. Trade Associations observed that Reliability Standard CIP-007-6, Requirement R3 is the primary existing Reliability Standard addressing the risks posed by malware. Trade Associations explained that the Reliability Standard requires responsible entities to deter, detect, or prevent malicious code; mitigate the threat of detected malicious code; and have a process to update signatures or patterns associated with malicious code. Trade Associations asserted that other relevant requirements are spread throughout the currently-effective CIP Reliability Standards, including Reliability Standards CIP-005-5, Requirement R1 (Electronic Security Perimeter); CIP-005-5, Requirement R2 (Protections for Interactive Remote Access); CIP-007-6, Requirement R1 (limiting and protecting accessible ports); and CIP-007-6, Requirement R2 (patch management required to detect software vulnerabilities).28

    28 Trade Associations Comments at 5-6.

    19. In addition, Trade Associations noted recently-approved new CIP Reliability Standards addressing transient devices associated with high and medium impact BES Cyber Systems, as well as the Commission's directive in Order No. 822 for the development of similar protections for low impact BES Cyber Systems. Trade Associations also identified the Commission's directives in Order No. 829 relating to cybersecurity risks posed by vendors as open initiatives that will help protect against the introduction of malware into BES Cyber Systems.29

    29Id. at 7.

    20. Kaspersky Lab supported the development of an enhanced Reliability Standard for malware detection, reporting, mitigation and removal. Kaspersky Lab stated that the current CIP Reliability Standards “do not sufficiently address malware protection as a critical component in securing BES Cyber Assets and Systems.” 30 Kaspersky Lab offered a list of reasons why it believes that electric utilities face an increased risk of being infiltrated by malware, highlighting, among other issues, that information concerning exploitable vulnerabilities is increasingly becoming public. Kaspersky Lab noted that it recognizes that the CIP Reliability Standards “strive to address the complex cyber and physical security needs of the [bulk electric system]” and that cybersecurity standards “must be flexible and not overly prescriptive to address threats as they evolve,” but it states that the current CIP Reliability Standards only address malware protection “in a cursory fashion.” 31

    30 Kaspersky Lab Comments at 1.

    31Id. at 2.

    21. David Bardin supported the goals in Resilient Societies' petition and suggested that the Commission initiate one or more proceedings to facilitate a conversation on malware protections. In support of his position, Bardin presented a list of questions that could be raised in such discussions.32

    32 Bardin Comments at 1.

    C. NERC 2017 State of Reliability Report

    22. In June 2017, NERC published the 2017 NERC State of Reliability Report which, among other things, indicates that there were no Reportable Cyber Security Incidents in 2016. The report also lists “key findings” regarding reliability performance observed over the previous year and recommendations for improvements. Key Finding 4 of the report addresses the reporting of Cyber Security Incidents. In particular, NERC states that the current “mandatory reporting process does not create an accurate picture of cyber security risk since most of the cyber threats detected by the electricity industry manifest themselves in . . . email, websites, smart phone applications . . . rather than the control system environment where impacts could cause loss of load and result in a mandatory report.” 33 Based on that finding, the report includes a recommendation that NERC and industry should “redefine reportable incidents to be more granular and include zero-consequence incidents that might be precursors to something more serious.” 34

    33 2017 NERC State of Reliability Report at 4.

    34Id.

    II. Discussion

    23. Pursuant to section 215(d)(5) of the FPA, the Commission proposes to direct NERC to develop modifications to the CIP Reliability Standards to address the Commission's concerns regarding mandatory reporting requirements. Based on our review of the comments received in response to Resilient Societies' petition, however, we conclude that the current Commission-approved CIP Reliability Standards, ongoing NERC efforts to address open Commission directives, and other industry efforts have addressed or will address the malware detection and mitigation issues raised by Resilient Societies. For example, provisions of currently effective Reliability Standards, including CIP-005-5 and CIP-007-6, address malware detection and mitigation. Ongoing efforts described by NERC and other commenters, such as the development of a supply chain risk management standard, should also address malware concerns. Thus, the Commission declines to act on this aspect of the petition.35

    35 While the Commission proposes that NERC develop modifications to the NERC Reliability Standards under section 215(d)(5) of the FPA in Docket No. RM18-2-000, we exercise our discretion to terminate the proceeding in Docket No. AD17-9-000.

    24. We believe that the current reporting threshold for Cyber Security Incidents, as set forth in the current definition of Reportable Cyber Security Incident, may not reflect the true scope of cyber-related threats facing the Bulk-Power System, consistent with NERC's view. Accordingly, pursuant to section 215(d)(5) of the FPA, the Commission proposes to direct that NERC develop modifications to the CIP Reliability Standards to improve the mandatory reporting of Cyber Security Incidents, including incidents that might facilitate subsequent efforts to harm the reliable operation of the bulk electric system, to improve awareness of existing and future cyber security threats and potential vulnerabilities.

    25. Below, we discuss the following elements of the proposed directive: (A) Cyber Security Incident reporting threshold; (B) information in Cyber Security Incident reports; and (C) timing of Cyber Security Incident reports.

    A. Cyber Security Incident Reporting Threshold

    26. Cyber-related event reporting is currently addressed in Reliability Standard CIP-008-5, Requirement R1, Part 1.2, which requires that each responsible entity shall document one or more Cyber Security Incident Plan(s) with one or more processes to determine if an identified Cyber Security Incident is a Reportable Cyber Security Incident. Where a cyber-related event is determined to qualify as a Reportable Cyber Security Incident, responsible entities are required to notify the E-ISAC with initial notification to be made within one hour from the determination of a Reportable Cyber Security Incident.36

    36See Reliability Standard CIP-008-5 (Cyber Security—Incident Reporting and Response Planning), Requirement R1, Part 1.2. This requirement pertains to high impact BES Cyber Systems and medium impact BES Cyber Systems.

    27. A Cyber Security Incident is defined in the NERC Glossary as:

    A malicious act or suspicious event that:

    • Compromises, or was an attempt to compromise, the Electronic Security Perimeter or Physical Security Perimeter or,

    • Disrupts, or was an attempt to disrupt, the operation of a BES Cyber System.

    This is similar, but not identical, to the definition of a cybersecurity incident in FPA section 215, which is “a malicious act or suspicious event that disrupts, or was an attempt to disrupt, the operation of those programmable electronic devices and communication networks including hardware, software and data that are essential to the reliable operation of the bulk power system.” 37 A Reportable Cyber Security Incident, however, is defined more narrowly in the NERC Glossary as “[a] Cyber Security Incident that has compromised or disrupted one or more reliability tasks of a functional entity.” Therefore, in order for a cyber-related event to be considered reportable under the existing CIP Reliability Standards, it must compromise or disrupt a core activity (e.g., a reliability task) of a responsible entity that is intended to maintain bulk electric system reliability.38 Under these definitions, unsuccessful attempts to compromise or disrupt a responsible entity's core activities are not subject to the current reporting requirements in Reliability Standard CIP-008-5.

    37 16 U.S.C. 824o(a)(8).

    38 The NERC Functional Model “describes a set of Functions that are performed to ensure the reliability of the Bulk Electric System. Each Function consists of a set of related reliability Tasks. The Model assigns each Function to a functional entity, that is, the entity that performs the function. The Model also describes the interrelationships between that functional entity and other functional entities (that perform other Functions).” NERC, Reliability Functional Model: Function Definitions and Functional Entities, Version 5 at 7 (November 2009), http://www.nerc.com/pa/Stand/Functional%20Model%20Archive%201/Functional_Model_V5_Final_2009Dec1.pdf.

    28. As discussed above, recent NERC State of Reliability Reports indicate that there were no Reportable Cyber Security Incidents in 2015 and 2016. As noted by NERC, “[w]hile there were no reportable cyber security incidents during 2016 and therefore none that caused a loss of load, this does not necessarily suggest that the risk of a cyber security incident is low.” 39 In contrast, the 2016 annual summary of DOE's Electric Disturbance Reporting Form OE-417 contained four cybersecurity incidents reported in 2016: Two suspected cyber attacks and two actual cyber attacks.40 Moreover, ICS-CERT responded to fifty-nine cybersecurity incidents within the Energy Sector in 2016.41

    39 2017 NERC State of Reliability Report at 4.

    40 2016 DOE Electric Disturbance Events (OE-417) Annual Summary Archives, https://www.oe.netl.doe.gov/OE417_annual_summary.aspx.

    41 ICS-CERT cybersecurity incident statistics for the Energy Sector combine statistics from the electric subsector and the oil and natural gas subsector. ICS-CERT does not break out the cybersecurity incidents that only impact the electric subsector. 2016 ICS-CERT Year in Review, https://ics-cert.us-cert.gov/Year-Review-2016.

    29. Based on this comparison, the current reporting threshold in Reliability Standard CIP-008-5 may not reflect the true scope and scale of cyber-related threats facing responsible entities. The disparity in the reporting of cyber-related incidents under existing reporting requirements, in particular the lack of any incidents reported to NERC in 2015 and 2016, suggests a gap in the current reporting requirements. We are concerned that this apparent reporting gap results in a lack of awareness for NERC, responsible entities, and the Commission. This concern is echoed in the 2017 NERC State of Reliability Report, which includes a recommendation that NERC and industry should “redefine reportable incidents to be more granular and include zero-consequence incidents that might be precursors to something more serious.” 42 We agree with NERC's recommendation. The disparity highlights the need to improve the reporting obligation under the CIP Reliability Standards.

    42 2017 NERC State of Reliability Report at 4.

    30. The Commission proposes to direct NERC to address the gap in cyber-related incident reporting. Specifically, we propose to direct NERC to modify the CIP Reliability Standards to include the mandatory reporting of Cyber Security Incidents that compromise, or attempt to compromise, a responsible entity's ESP or associated EACMS. Enhanced mandatory reporting of cyber-related incidents will provide better awareness to NERC, industry and the Commission regarding existing or developing cyber security threats.

    31. Reporting of attempts to compromise, instead of only successful compromises, is consistent with current monitoring requirements. For example, Reliability Standard CIP-007-6, Requirement R4.1, mandates logging of detected successful login attempts, detected failed access attempts, and failed login attempts. Also, the Guidelines and Technical Basis for this requirement state that events should be logged even if access attempts were blocked or otherwise unsuccessful.43

    43See Reliability Standard CIP-007-6 (Cyber Security—Systems Security Management), Requirement R4, Part 1.

    32. Similarly, DHS defines a “cyber incident” as “attempts (either failed or successful) to gain unauthorized access to a system or its data . . . .” 44 The E-ISAC defines a “cyber incident” as including unauthorized access through the electronic perimeter as well as “a detected effort . . . without obvious success.” 45 Also, ICS-CERT defines a “cyber incident” as an “occurrence that actually or potentially results in adverse consequences . . . .” 46

    44See United States Computer Emergency Readiness Team (US-CERT) Incident Definition: https://www.us-cert.gov/government-users/compliance-and-reporting/incident-definition.

    45See E-ISAC Incident Reporting Fact Sheet document: http://www.nerc.com/files/Incident-Reporting.pdf.

    46See ICS-CERT Published “Common Cyber Security Language” document: https://ics-cert.us-cert.gov/About-Industrial-Control-Systems-Cyber-Emergency-Response-Team.

    33. We propose to establish a compromise or an attempt to compromise a responsible entity's ESP or associated EACMS, due to their close association with ESPs, as the boundary point for a reportable Cyber Security Incident. An ESP is defined in the NERC Glossary as the “logical border surrounding a network to which BES Cyber Systems are connected using a routable protocol.” The purpose of an ESP is to manage electronic access to BES Cyber Systems to support the protection of the BES Cyber Systems against compromise that could lead to misoperation or instability in the bulk electric system.47 EACMS are defined in the NERC Glossary as “Cyber Assets that perform electronic access control or electronic access monitoring of the Electronic Security Perimeter(s) or BES Cyber Systems. This includes Intermediate Systems.” More specifically, EACMS include, for example, firewalls, authentication servers, security event monitoring systems, intrusion detection systems and alerting systems.48 Therefore, EACMS control electronic access into the ESP and play a significant role in the protection of high and medium impact BES Cyber Systems.49 Once an EACMS is compromised, an attacker could more easily enter the ESP and effectively control the BES Cyber System or Protected Cyber Asset.

    47See Reliability Standard CIP-005-5 (Cyber Security—Electronic Security Perimeter(s)).

    48See Reliability Standard CIP-002-5.1 (Cyber Security—BES Cyber System Categorization), Background at 6; Reliability Standard CIP-007-6 (Cyber Security—System Security Management), Background at 4.

    49See Reliability Standard CIP-002-5.1a (Cyber Security—BES Cyber System Categorization), Background at 5-6 (“BES Cyber Systems have associated Cyber Assets, which, if compromised, pose a threat to the BES Cyber System by virtue of: (a) Their location within the Electronic Security Perimeter (Protected Cyber Assets), or (b) the security control function they perform (Electronic Access Control or Monitoring Systems and Physical Access Control Systems”).

    34. Since an ESP is intended to protect BES Cyber Systems and EACMS are intended to control electronic access into an ESP, we believe it is reasonable to establish the compromise of, or attempt to compromise, an ESP or its associated EACMS as the minimum reporting threshold.

    35. In sum, pursuant to section 215(d)(5) of the FPA, we propose to direct NERC to develop modifications to the CIP Reliability Standards described above to improve the reporting of Cyber Security Incidents, including incidents that did not cause any harm but could facilitate subsequent efforts to harm the reliable operation of the bulk electric system. The Commission seeks comment on this proposal.

    36. In addition, the Commission seeks comment on whether to exclude EACMS from any Commission directive and, instead, establish the compromise, or attempt to compromise, an ESP as the minimum reporting threshold. The Commission also seeks comment on potential alternatives to modifying the mandatory reporting requirements in the NERC Reliability Standards. Specifically, we seek comment on whether a request for data or information pursuant to Section 1600 of the NERC Rules of Procedure would effectively address the reporting gap and current lack of awareness of cyber-related incidents, discussed above, among NERC, responsible entities and the Commission, and satisfy the goals of the proposed directive.

    B. Content of Cyber Security Incident Reports

    37. Currently-effective Reliability Standard CIP-008-5, Requirement R1, Part 1.2 requires that a responsible entity provide an initial notification of a Reportable Cyber Security Incident to the E-ISAC within one hour of the determination that a Cyber Security Incident is reportable, unless prohibited by law. The initial notification may be made by phone call, email, or through a Web-based notice.50 Reliability Standard CIP-008-5 does not specify the content of a report.

    50See Reliability Standard CIP-008-5 (Cyber Security—Incident Reporting and Response Planning), Guidelines and Technical Basis at 19.

    38. The Commission proposes to direct that NERC modify the CIP Reliability Standards to specify the required content in a Cyber Security Incident report. We propose that the minimum set of attributes to be reported should include: (1) The functional impact, when identifiable, that the Cyber Security Incident achieved or attempted to achieve; (2) the attack vector that was used to achieve or attempted to achieve the Cyber Security Incident; and (3) the level of intrusion that was achieved or attempted as a result of the Cyber Security Incident. Knowledge of these attributes regarding a specific Cyber Security Incident will improve awareness of cyber threats to bulk electric system reliability. These attributes are the same as attributes already used by DHS for its multi-sector reporting and summarized by DHS in an annual report.51 Specifying the required content should improve the quality of reporting by ensuring that basic information is provided and allows for ease of comparison across reports by ensuring that each report includes specified fields of information.

    51 2016 ICS-CERT Year in Review, https://ics-cert.us-cert.gov/Year-Review-2016.

    39. Functional impact is a measure of the actual, ongoing impact to the organization, the affected BES Cyber System(s), and the responsible entity's ability to protect and/or operate the affected BES Cyber System(s) to ensure reliable bulk electric system operations. In many cases, such as scans and probes by attackers or a successfully defended attack, there is little or no impact on the responsible entity as a result of the incident. The attack vector is the method used by the attacker to exploit a vulnerability, such as a phishing attack for user credentials or a virus designed to exploit a known vulnerability. The level of intrusion reflects the extent of the penetration into a responsible entity's ESP, EACMS as applicable, or BES Cyber Systems within the ESP, that was achieved as a result of the Cyber Security Incident.

    40. The Commission seeks comment on this proposal and, more generally, the appropriate content for Cyber Security Incident reporting to improve awareness of existing and future cyber security threats and potential vulnerabilities.

    C. Timing of Cyber Security Incident Reports

    41. In addition to addressing the specific content for Cyber Security Incident reports, the Commission proposes that NERC establish requirements outlining deadlines for filing a report once a compromise or disruption to reliable bulk electric system operation, or an attempted compromise or disruption, is identified by a responsible entity. While currently-effective Reliability Standard CIP-008-5, Requirement R1, Part 1.2 requires that a responsible entity provide an initial notification of a Reportable Cyber Security Incident to the E-ISAC within one hour of the determination that a Cyber Security Incident is reportable, unless prohibited by law, the Reliability Standard “does not require a specific timeframe for completing the full report.” 52 The reporting timeline should reflect the actual or potential threat to reliability, with more serious incidents reported in a more timely fashion. A reporting timeline that takes into consideration the severity of a Cyber Security Incident should minimize potential burdens on responsible entities. The intent of this directive is to provide NERC with the information necessary to maintain awareness regarding cyber threats to bulk electric system reliability. We propose that the reports submitted under the enhanced mandatory reporting requirements would be provided to E-ISAC, similar to the current reporting scheme, as well as ICS-CERT. The detailed incident reporting would not be submitted to the Commission.

    52See Reliability Standard CIP-008-5 (Cyber Security—Incident Reporting and Response Planning), Guidelines and Technical Basis at 19.

    42. The Commission and others will also benefit from enhanced Cyber Security Incident reporting as we continue to evaluate the effectiveness of the CIP Reliability Standards. Currently, NERC identifies the number of Reportable Cyber Security Incidents in its annual State of Reliability report. In that regard, however, we propose to direct NERC to file publicly an annual report reflecting the Cyber Security Incidents reported to NERC during the previous year. Specifically, we propose to direct NERC to file annually an anonymized report providing an aggregated summary of the reported information. We believe that the ICS-CERT annual report, which includes pie charts reflecting the energy sector's cybersecurity incidents by level of intrusion, threat vector and functional impact, would be a reasonable model for what NERC reports to the Commission.53

    53 ICS-CERT, https://ics-cert.us-cert.gov/sites/default/files/FactSheets/ICS-CERT_FactSheet_IR_Pie_Chart_FY2016_S508C.pdf.

    43. The Commission seeks comment on the appropriate timing for Cyber Security Incident reporting to better ensure timely sharing of information and thereby enhance situational awareness. In addition, the Commission seeks comment on the proposal to direct NERC to file an annual report with the Commission.

    III. Information Collection Statement

    44. The Paperwork Reduction Act (PRA) requires each federal agency to seek and obtain approval from the Office of Management and Budget (OMB) before undertaking a collection of information directed to ten or more persons, or contained in a rule of general applicability. OMB's implementing regulations require approval of certain information collection requirements imposed by agency rules.54 Upon approval of a collection(s) of information, OMB will assign an OMB control number and an expiration date. Respondents subject to the filing requirements of an agency rule will not be penalized for failing to respond to these collections of information unless the collections of information display a valid OMB control number.

    54See 5 CFR 1320.

    45. The Commission is submitting these proposed reporting requirements to OMB for its review and approval under section 3507(d) of the PRA. Comments are solicited on the Commission's need for the information proposed to be reported, whether the information will have practical utility, ways to enhance the quality, utility, and clarity of the information to be collected, and any suggested methods for minimizing the respondent's burden, including the use of automated information techniques.

    46. The Public Reporting Burden and cost related to the proposed rule in Docket No. RM18-2-000 are covered by, and already included in, the existing FERC-725, Certification of Electric Reliability Organization; Procedures for Electric Reliability Standards (OMB Control No. 1902-0225). FERC-725 includes the ERO's overall responsibility for developing Reliability Standards, such as any Reliability Standards that relate to Cyber Security Incident reporting.

    47. Internal review: The Commission has reviewed the proposed changes and has determined that the changes are necessary to ensure the reliability and integrity of the Nation's Bulk-Power System.

    48. Interested persons may obtain information on the reporting requirements by contacting: Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426 [Attention: Ellen Brown, Office of the Executive Director, email: [email protected], Phone: (202) 502-8663, fax: (202) 273-0873]. Comments on the requirements of this rule may also be sent to the Office of Information and Regulatory Affairs, Office of Management and Budget, Washington, DC 20503 [Attention: Desk Officer for the Federal Energy Regulatory Commission]. For security reasons, comments should be sent by email to OMB at [email protected] Please refer to OMB Control No. 1902-0225 and FERC-725 in your submission.

    IV. Environmental Analysis

    49. The Commission is required to prepare an Environmental Assessment or an Environmental Impact Statement for any action that may have a significant adverse effect on the human environment.55 The Commission has categorically excluded certain actions from this requirement as not having a significant effect on the human environment. Included in the exclusion are rules that are clarifying, corrective, or procedural or that do not substantially change the effect of the regulations being amended.56 The actions proposed herein fall within this categorical exclusion in the Commission's regulations.

    55Regulations Implementing the National Environmental Policy Act of 1969, Order No. 486, FERC Stats. & Regs. ¶ 30,783 (1987) (cross-referenced at 41 FERC ¶ 61,284).

    56 18 CFR 380.4(a)(2)(ii).

    V. Regulatory Flexibility Act Analysis

    50. The Regulatory Flexibility Act of 1980 (RFA) 57 generally requires a description and analysis of proposed rules that will have significant economic impact on a substantial number of small entities.

    57 5 U.S.C. 601-612.

    51. By only proposing to direct NERC, the Commission-certified ERO, to develop modified Reliability Standards for Cyber Security Incident reporting, this Notice of Proposed Rulemaking will not have a significant or substantial impact on entities other than NERC. Therefore, the Commission certifies that this Notice of Proposed Rulemaking will not have a significant economic impact on a substantial number of small entities.

    52. Any Reliability Standards proposed by NERC in compliance with this rulemaking will be considered by the Commission in future proceedings. As part of any future proceedings, the Commission will make determinations pertaining to the Regulatory Flexibility Act based on the content of the Reliability Standards proposed by NERC.

    VI. Comment Procedures

    53. The Commission invites interested persons to submit comments on the matters and issues proposed in this notice to be adopted, including any related matters or alternative proposals that commenters may wish to discuss. Comments are due February 26, 2018. Comments must refer to Docket No. RM18-2-000, and must include the commenter's name, the organization they represent, if applicable, and address.

    54. The Commission encourages comments to be filed electronically via the eFiling link on the Commission's website at http://www.ferc.gov. The Commission accepts most standard word processing formats. Documents created electronically using word processing software should be filed in native applications or print-to-PDF format and not in a scanned format. Commenters filing electronically do not need to make a paper filing.

    55. Commenters that are not able to file comments electronically must send an original of their comments to: Federal Energy Regulatory Commission, Secretary of the Commission, 888 First Street NE, Washington, DC 20426.

    56. All comments will be placed in the Commission's public files and may be viewed, printed, or downloaded remotely as described in the Document Availability section below. Commenters on this proposal are not required to serve copies of their comments on other commenters.

    VII. Document Availability

    57. In addition to publishing the full text of this document in the Federal Register, the Commission provides all interested persons an opportunity to view and/or print the contents of this document via the internet through the Commission's Home Page (http://www.ferc.gov) and in the Commission's Public Reference Room during normal business hours (8:30 a.m. to 5:00 p.m. Eastern time) at 888 First Street NE, Room 2A, Washington, DC 20426.

    58. From the Commission's Home Page on the internet, this information is available on eLibrary. The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number of this document, excluding the last three digits, in the docket number field.

    59. User assistance is available for eLibrary and the Commission's website during normal business hours from the Commission's Online Support at 202-502-6652 (toll free at 1-866-208-3676) or email at [email protected], or the Public Reference Room at (202) 502-8371, TTY (202) 502-8659. Email the Public Reference Room at [email protected]

    By direction of the Commission.

    Issued: December 21, 2017. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2017-28083 Filed 12-27-17; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF THE TREASURY 31 CFR Part 148 RIN 1505-AC57 Qualified Financial Contracts Recordkeeping Related to Orderly Liquidation Authority AGENCY:

    Department of the Treasury.

    ACTION:

    Proposed rule.

    SUMMARY:

    The Secretary of the Treasury (the “Secretary”), as Chairperson of the Financial Stability Oversight Council, is proposing, in consultation with the Federal Deposit Insurance Corporation (the “FDIC”), an amendment to the regulation implementing the qualified financial contract (“QFC”) recordkeeping requirements of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act” or the “Act”) that would extend the compliance dates of the regulation.

    DATES:

    Written comments must be received by January 29, 2018.

    ADDRESSES:

    Submit comments electronically through the Federal eRulemaking Portal: http://www.regulations.gov, or by mail (if hard copy, preferably an original and two copies) to: The Treasury Department, Attn: Qualified Financial Contracts Recordkeeping Comments, 1500 Pennsylvania Avenue NW, Washington, DC 20220. Because paper mail in the Washington, DC area may be subject to delay, it is recommended that comments be submitted electronically. Please include your name, affiliation, address, email address, and telephone number in your comment. Comments will be available for public inspection on www.regulations.gov. In general, comments received, including attachments and other supporting materials, are part of the public record and are available to the public. Do not submit any information in your comment or supporting materials that you consider confidential or inappropriate for public disclosure.

    FOR FURTHER INFORMATION CONTACT:

    Brian Smith, Director, Office of Capital Markets, (202) 622-0157; Peter Nickoloff, Financial Economist, Office of Capital Markets, (202) 622-1692; Steven D. Laughton, Assistant General Counsel (Banking & Finance), (202) 622-8413; or Stephen T. Milligan, Attorney-Advisor, (202) 622-4051.

    SUPPLEMENTARY INFORMATION:

    On October 31, 2016, the Secretary published a final regulation pursuant to section 210(c)(8)(H) of the Dodd-Frank Act requiring certain financial companies to maintain records with respect to their QFC positions, counterparties, legal documentation, and collateral that would assist the FDIC as receiver in exercising its rights and fulfilling its obligations under Title II of the Act.1

    1 81 FR 75624 (Oct. 31, 2016).

    The regulation provides for staggered compliance dates for the bulk of the recordkeeping requirements as follows. The regulation generally provides that records entities with $1 trillion or more in total consolidated assets have 540 days (approximately 18 months) after the effective date to comply with the regulation; that records entities with total assets equal to or greater than $500 billion (but less than $1 trillion) have two years from the effective date to comply with the regulation; that records entities with total assets equal to or greater than $250 billion (but less than $500 billion) have three years from the effective date to comply with the regulation; and that all other records entities have four years from the effective date to comply with the regulation.2 Given that the effective date is December 30, 2016, the first of these compliance dates is currently June 23, 2018.

    2 31 CFR 148.1(d)(1)(i).

    Separately, the regulation provides that the Secretary may grant conditional or unconditional exemptions from the regulation's requirements after receiving a recommendation from the FDIC, prepared in consultation with the relevant primary financial regulatory agencies (as defined in the regulation).3 Since the regulation became effective, the Secretary, the FDIC, and the primary financial regulatory agencies have received requests for exemptions from the requirements of the regulation for certain types of records entities within a corporate group and certain types of QFCs. These exemption requests are currently subject to review by the Secretary, the FDIC, and the primary financial regulatory agencies.

    3 31 CFR 148.3(c)(4).

    In light of the pending exemption requests and the Administration's general policy of alleviating unnecessary regulatory burdens,4 the Secretary, in consultation with the FDIC, is proposing a six month extension of the compliance dates in the regulation. Although the Secretary recognizes the importance of the QFC recordkeeping requirements, the Secretary has concluded that it would impose an unnecessary burden on records entities to require their compliance with the regulation before the scope of their recordkeeping responsibilities is determined. A short extension of the compliance dates is appropriate pending the Secretary's decisions whether to grant, in whole or in part, conditional or unconditional exemptions based on the exemption requests received to date, and to allow adequate time for records entities to prepare for compliance once the exemption requests are resolved.

    4See Executive Order No. 13771, Reducing Regulation and Controlling Regulatory Costs § 1, 82 FR 9339 (Feb. 3, 2017); Executive Order No. 13777, Enforcing the Regulatory Reform Agenda, § 1, 82 FR 12285 (Mar. 1, 2017).

    Specifically, the Secretary is proposing that all records entities be given approximately an additional six months to comply with the regulation. The Secretary estimates that this will allow sufficient time for the FDIC, in consultation with the primary financial regulatory agencies, to formulate recommendations to the Secretary and for the Secretary to make a determination as to the exemption requests. The Secretary requests comment on whether the compliance date should be extended and, if so, whether six months is the proper length for the extension and whether the compliance date should only be extended with respect to records entities in the first tier, i.e., those records entities with a June 23, 2018 compliance date.

    Administrative Law Matters 1. Regulatory Flexibility Act

    This proposed rule would not impose any additional burden on any records entities; rather, it would reduce the existing regulatory burden by extending the periods in which records entities have to comply with the regulation's requirements. For these reasons and as discussed further in the release of the 2016 final regulation, the Secretary certifies, pursuant to 5 U.S.C. 605(b), that this proposed rule will not have a significant economic impact on a substantial number of small entities under the Small Business Administration's most recently revised standards for small entities, which went into effect on October 1, 2017.

    2. Executive Order 12866

    This proposed rule is not a significant regulatory action as defined in section 3.f of Executive Order 12866.

    List of Subjects in 31 CFR Part 148

    Reporting and recordkeeping requirements.

    Authority and Issuance

    For the reasons set forth in the preamble, the Department of the Treasury proposes to revise part 148 to 31 CFR to read as follows:

    PART 148—QUALIFIED FINANCIAL CONTRACTS RECORDKEEPING RELATED TO THE FDIC ORDERLY LIQUIDATION AUTHORITY 1. The authority citation for part 148 continues to read as follows: Authority:

    31 U.S.C. 321(b) and 12 U.S.C 5390(c)(8)(H).

    2. Amend 31 CFR 148.1(d) by revising the introductory text to paragraphs (d)(1)(i), (d)(1)(i)(A), (d)(1)(i)(B), (d)(1)(i)(C), and (d)(1)(i)(D) as follows:
    § 148.1 Scope, purpose, effective date, and compliance dates.

    (d) Compliance. (1) Initial compliance dates. (i) A records entity subject to this part on the effective date must comply with § 148.3(a)(2) on the date that is 90 days after the effective date and with all other applicable requirements of this part on:

    (A) December 31, 2018 for a records entity that:

    (B) June 30, 2019 for any records entity that is not subject to the compliance date set forth in paragraph (d)(1)(i)(A) of this section and:

    (C) June 30, 2020 for any records entity that is not subject to the compliance date set forth in paragraphs (d)(1)(i)(A) or (B) of this section and:

    (D) June 30, 2021 for any records entity that is not subject to the compliance dates set forth in paragraphs (d)(1)(i)(A), (B), or (C) of this section.

    Dated: December 21, 2017. Clay Berry, Deputy Assistant Secretary for Capital Markets.
    [FR Doc. 2017-28073 Filed 12-27-17; 8:45 am] BILLING CODE 4810-25-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 60 [EPA-HQ-OAR-2017-0545; FRL-9972-50-OAR] RIN 2060-AT67 State Guidelines for Greenhouse Gas Emissions from Existing Electric Utility Generating Units AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Advance notice of proposed rulemaking.

    SUMMARY:

    An advance notice of proposed rulemaking (ANPRM) is a notice intended to solicit information from the public as the Environmental Protection Agency (EPA) considers proposing a future rule. In this ANPRM, the EPA is considering proposing emission guidelines to limit greenhouse gas (GHG) emissions from existing electric utility generating units (EGUs) and is soliciting information on the proper respective roles of the state and federal governments in that process, as well as information on systems of emission reduction that are applicable at or to an existing EGU, information on compliance measures, and information on state planning requirements under the Clean Air Act (CAA). This ANPRM does not propose any regulatory requirements.

    DATES:

    Comments must be received on or before February 26, 2018.

    ADDRESSES:

    Comments. Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2017-0545, at http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the Web, cloud, or other file sharing system).

    Comments may also be submitted by mail. Send your comments to: EPA Docket Center, U.S. EPA, Mail Code 28221T, 1200 Pennsylvania Ave. NW, Washington, DC 20460, Attn: Docket No. ID EPA-HQ-OAR-2017-0545.

    For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

    Instructions. Direct your comments on the proposed rule to Docket ID No. EPA-HQ-OAR-2017-0545. The EPA's policy is that all comments received will be included in the public docket and may be made available online at http://www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be CBI or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through http://www.regulations.gov or email. The http://www.regulations.gov website is an “anonymous access” system, which means the EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to the EPA without going through http://www.regulations.gov, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the internet. If you submit an electronic comment, the EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If the EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, the EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.

    Docket. The EPA has established a new docket for this action under Docket ID No. EPA-HQ-OAR-2017-0545. The EPA previously established a docket for the October 23, 2015, Clean Power Plan (CPP) under Docket ID No. EPA-HQ-OAR-2013-0602. All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy form. Publicly available docket materials are available either electronically at http://www.regulations.gov or in hard copy at the EPA Docket Center (EPA/DC), EPA WJC West Building, Room 3334, 1301 Constitution Ave. NW, Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the EPA Docket Center is (202) 566-1742.

    FOR FURTHER INFORMATION CONTACT:

    Dr. Nick Hutson, Energy Strategies Group, Sector Policies and Programs Division (D243-01), U.S. Environmental Protection Agency, Research Triangle Park, NC 27711; telephone number: (919) 541-2968; email address: [email protected]

    SUPPLEMENTARY INFORMATION:

    Submitting CBI. Do not submit information that you consider to be CBI electronically through http://www.regulations.gov or email. Send or deliver information identified as CBI to only the following address: OAQPS Document Control Officer (Room C404-02), Environmental Protection Agency, Research Triangle Park, North Carolina 27711; Attn: Docket ID No. EPA-HQ-OAR-2017-0545.

    Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to the EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. If you submit a CD-ROM or disk that does not contain CBI, mark the outside of the disk or CD-ROM clearly that it does not contain CBI. Information marked as CBI will not be disclosed except in accordance with procedures set forth in 40 Code of Federal Regulations (CFR) part 2.

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

    I. General Information A. What is the purpose of this ANPRM? B. Introduction C. Where can I get a copy of this document? II. Background III. The Statutory and Regulatory Framework under CAA Section 111(d) A. Introduction B. States' Role and Responsibilities under CAA Section 111(d) C. The EPA's Interpretation of CAA Section 111(a)(1) D. The EPA's Role and Responsibilities under CAA Section 111(d) IV. Available Systems of GHG Emission Reduction A. Heat Rate Improvements for Boilers B. Heat Rate Improvements at Natural Gas-fired Combustion Turbines C. Other Available Systems of GHG Emission Reduction D. EGU Source Categories and Subcategories V. Potential Interactions with Other Regulatory Programs A. New Source Review (NSR) B. New Source Performance Standards (NSPS) VI. Statutory and Executive Order Reviews I. General Information A. What is the purpose of this ANPRM?

    An ANPRM is an action intended to solicit information from the public in order to inform the EPA as the Agency considers proposing a future rule. In light of the proposed repeal of the CPP, 82 FR 48035 (October 16, 2017), this ANPRM focuses on considerations pertinent to a potential new rule establishing emission guidelines for GHG (likely expressed as carbon dioxide (CO2)) 1 emissions from existing EGUs. In this ANPRM, the EPA sets out and requests comment on the roles, responsibilities, and limitations of the federal government, state governments, and regulated entities in developing and implementing such a rule, and the EPA solicits information regarding the appropriate scope of such a rule and associated technologies and approaches.

    1 The air pollutants of interest in this ANPRM are GHGs. However, any emission guidelines in a potential rule likely would be expressed as guidelines to limit emissions of CO2 as it is the primary GHG emitted from fossil fuel-fired EGUs.

    B. Introduction

    When an agency considers proposing a new regulation, it should inform the public of the need and statutory authority for its action. In particular, for this ANPRM, the EPA believes it appropriate to inform the public of the reasons why the Agency is considering a future rulemaking addressing greenhouse gas emissions from existing electric utility generating units. The EPA is mindful that its regulatory powers are limited to those delegated to it by Congress. Here, the Clean Air Act—as interpreted by the EPA and the federal courts, in particular the Supreme Court and the Court of Appeals for the District of Columbia Circuit—determines the scope of whatever obligation and authority the EPA may have.

    When passing and amending the CAA, Congress sought to address and remedy the dangers posed by air pollution to human beings and the environment. While the text of the CAA does not reflect an explicit intent on the part of Congress to address the potential effects of elevated atmospheric GHG concentrations, the U.S. Supreme Court in Massachusetts v. EPA, 549 U.S. 497 (2007), concluded that Congress had drafted the CAA broadly enough so that GHGs constituted air pollutants within the meaning of the CAA. Based on this decision, the EPA subsequently determined that emissions of GHGs from new motor vehicles cause or contribute to air pollution that may reasonably be anticipated to endanger public health or welfare. This determination required the EPA to regulate GHG emissions from motor vehicles.

    Thereafter, the EPA moved to regulate GHG emissions from two types of stationary sources: Fossil fuel-fired electric utility steam generating units and fossil fuel-fired stationary combustion turbines (collectively, EGUs). Under CAA section 111(b) the EPA Administrator is required to list a category of stationary sources and adopt regulations establishing standards of performance for that category “if in his judgment [the category of sources] causes, or contributes significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare.” 42 U.S.C. 7411(b)(1)(A).

    In October 2015, the EPA promulgated standards of performance for new fossil fuel-fired EGUs. 80 FR 64510 (October 23, 2015). The EPA took the position that no new or separate endangerment finding was necessary, explaining that “[u]nder the plain language of CAA section 111(b)(1)(A), an endangerment finding is required only to list a source category,” id. at 64529-30, and that such a finding had already been made for the fossil fuel-fired EGU source categories many years before. Further, the EPA stated that “section 111(b)(1)(A) does not provide that an endangerment finding is made as to specific pollutants.” Id. at 64530. The EPA continued that “[t]his contrasts with other CAA provisions that do require the EPA to make endangerment findings for each particular pollutant that the EPA regulates under those provisions.” Id. (citing CAA sections 202(a)(1), 211(c)(1), and 231(a)(2)(A).2

    2 In response to commenters who had argued that the EPA was “required to make a new endangerment finding before it may regulate CO2 from EGUs,” the EPA reiterated its disagreement, but then added that, “even if CAA section 111 required the EPA to make endangerment and cause-or-contribute significantly findings as prerequisites” for its CAA section 111(b) rulemaking, the “information and conclusions” set forth in the preamble accompanying the final rule “should be considered to constitute the requisite endangerment finding.” 80 FR 64530.

    Given this understanding of the CAA, the EPA disclaimed explicit reliance on the endangerment finding that it had previously made under CAA section 202(a)(1) with respect to GHG emissions from new motor vehicles for its decision to establish standards of performance for GHG emissions from EGUs. To the contrary, the EPA said, “once a source category is listed” under CAA section 111(b)(1)(A), “the CAA does not specify what pollutants should be the subject of standards from that source category.” 80 FR 64530. Rather, the EPA continued, “the statute, in section 111(b)(1)(B), simply directs the EPA to propose and then promulgate `. . . standards of performance for new sources within such category,' ” with the CAA otherwise giving no “specific direction or enumerated criteria . . . concerning what pollutants from a given source category should be the subject of standards.” Id. The EPA then pointed out that it had “previously interpreted [CAA section 111(b)(1)(B)] as granting it the discretion to determine which pollutants should be regulated.” Id. In the instant case, the EPA went on to explain, the Agency had a “rational basis for concluding that emissions of GHGs from fossil fuel-fired power plants, which are the major U.S. source of GHG air pollution, merit regulation under CAA section 111.” Id. While the EPA said that it was not required to make a new or separate endangerment finding, the Agency did point to the endangerment finding it had made in 2009 under CAA section 202(a)(1) as providing the “rational basis” for regulating GHG emissions from EGUs. Id.

    By regulating GHG emissions from new stationary sources under CAA section 111(b), the EPA concluded that, under the regulations that the EPA had previously adopted for implementing CAA section 111(d), it triggered obligations to regulate GHG from existing sources. See 40 CFR 60.22(a). Pursuant to those regulatory obligations, the EPA, simultaneously with the new-source rule, issued regulations pertaining to GHG emissions from existing stationary sources. It was under CAA section 111(d), a rarely used provision, that EPA issued its “Clean Power Plan.” 3

    3 Nothing in this ANPRM should be construed as addressing or modifying the prior findings made under titles I and II of the CAA discussed in the preceding paragraphs with respect to endangerment and the requirements under 111. The ANPRM mentions them merely to explain the genesis of the CPP. Moreover, this ANPRM does not propose any modifications to the GHG regulations on new stationary sources promulgated under CAA section 111(b). The EPA has previously announced that it is undertaking a review of those regulations, and, at the conclusion of that review, if appropriate, “will initiate proceedings to suspend, revise or rescind” those regulations. 82 FR 16330 (April 4, 2017). The EPA is not soliciting comment on those actions in this ANPRM.

    After considering the statutory text, context, legislative history, and purpose, and in consideration of the EPA's historical practice under CAA section 111 as reflected in its other existing CAA section 111 regulations and of certain policy concerns, the EPA has proposed to repeal the CPP. 82 FR 48035. At the same time, the EPA continues to consider the possibility of replacing certain aspects of the CPP in coordination with a proposed revision. Therefore, this ANPRM solicits comment on what the EPA should include in a potential new existing-source regulation under CAA section 111(d), including comment on aspects of the States' and the EPA's role in that process, on the Best System of Emission Reduction (BSER) in this context under the statutory interpretation contained in the proposed repeal of the CPP, on what systems of emission reduction may be available and appropriate, and the interaction of a potential new existing-source regulation with the New Source Review (NSR) program and with New Source Performance Standards under CAA section 111(b).

    Section 111(d)(1) of the CAA states that the EPA “Administrator shall prescribe regulations which shall establish a procedure . . . under which each State shall submit to the Administrator a plan which (A) establishes standards of performance for any existing source for any air pollutant . . . to which a standard of performance under this section would apply if such existing source were a new source, and (B) provides for the implementation and enforcement of such standards of performance.” 42 U.S.C. 7411(d). CAA section 111(d)(1) also requires the Administrator to “permit the State in applying a standard of performance to any particular source under a plan submitted under this paragraph to take into consideration, among other factors, the remaining useful life of the existing source to which such standard applies.” Id.

    As the plain language of the statute provides, the EPA's authorized role under section 111(d)(1) is to develop a procedure for States to establish standards of performance for existing sources. “Section 111(d) grants a more significant role to the states in development and implementation of standards of performance than does [section 111(b)].” 4 Indeed, the Supreme Court has acknowledged the role and authority of states under CAA section 111(d): this provision allows “each State to take the first cut at determining how best to achieve EPA emissions standards within its domain.” Am. Elec. Power Co. v. Connecticut, 131 S. Ct. 2527, 2539 (2011). The Court addressed the statutory framework as implemented through regulation, under which the EPA promulgates emission guidelines and the States establish performance standards: “For existing sources, EPA issues emissions guidelines; in compliance with those guidelines and subject to federal oversight, the States then issue performance standards for stationary sources within their jurisdiction, § 7411(d)(1).” Id. at 2537-38.

    4 Jonas Monast, Tim Profeta, Brooks Rainey Pearson, and John Doyle, Regulating Greenhouse Gas Emissions from Existing Sources: Section 111(d) and State Equivalency, 42 Envtl. L., 10206, (2012).

    As contemplated by CAA section 111(d)(1), States possess the authority and discretion to establish appropriate standards of performance for existing sources. CAA section 111(a)(1) defines “standard of performance” as “a standard of emissions of air pollutants which reflects” what is colloquially referred to as the “Best System of Emission Reduction” or “BSER”—i.e., “the degree of emission limitation achievable through the application of the best system of emission reduction which (taking into account the cost of achieving such reduction and any nonair quality health and environmental impact and energy requirements) the Administrator determines has been adequately demonstrated.” 42 U.S.C. 7411(a)(1) (emphasis added).

    The EPA's principal task under CAA section 111(d)(1), as implemented by the EPA's regulations, is to publish a guideline document for use by the States, with that guideline document containing, among other things, an “emission guideline” that reflects the BSER, as determined by the Agency, for the category of existing sources being regulated. See 40 CFR 60.22(b) (“Guideline documents published under this section will provide information for the development of State plans, such as: . . . (5) An emission guideline that reflects the application of the best system of emission reduction (considering the cost of such reduction) that has been adequately demonstrated.”). In undertaking this task, the EPA is to specify “different emission guidelines . . . for different sizes, types, and classes of . . . facilities when costs of control, physical limitations, geographical location, or similar factors make subcategorization appropriate.” 40 CFR 60.22(b)(5).

    In short, under the EPA's regulations implementing CAA section 111(d), the guideline document serves to “provide information for the development of state plans.” 40 CFR 60.22(b), with the “emission guideline,” reflecting BSER as determined by the EPA, being the principal piece of information States use to develop their plans—plans which, under the statute, “establish[] standards of performance for . . . existing source[s].” 42 U.S.C. 7411(d)(1).

    Because the Clean Air Act cannot necessarily be applied to GHGs in the same manner as other pollutants, Utility Air Regulatory Group, 134 S. Ct. 2427, 2455 (2014) (Alito, J., concurring in part and dissenting in part), it is fortuitous that the regulations implementing CAA section 111(d) recognize that States possess considerable flexibility in developing their plans in response to the emission guideline(s) established by the EPA.5 40 CFR 60.24(c) specifies that the “emission standards” adopted by States “shall be no less stringent than the corresponding emission guideline(s)” published by the EPA. That is to say, in those circumstances where the Agency, in an exercise of discretion, chooses to make its emission guideline binding,6 state-adopted standards may not be less stringent than the federal emission guidelines. However, the implementing regulations also provide that, where the EPA has not exercised its discretion to make its emission guideline binding, States “may provide for the application of less stringent emissions standards,” where a State makes certain demonstrations. 40 CFR 60.24(f) (emphasis added).7 Those demonstrations include a case-by-case determination that a less stringent standard is “significantly more reasonable” due to such considerations as cost of control, a physical limitation of installing necessary control equipment, and other factors specific to the facility. 40 CFR 60.24(f).

    5 Subpart B of 40 CFR part 60 sets forth the procedures and requirements for States' submittal of, and the EPA's action on, state plans for control of designated pollutants from designated facilities under section 111(d) of the CAA (we refer to these as the “implementing regulations”).

    6 The implementing regulations authorize the EPA to make its emission guideline binding on the States only where the EPA has specifically determined that the pollutant that is the target of regulation “may cause or contribute to endangerment of public health.” 40 CFR 60.24(c).

    7 States are, as a general matter, free to adopt more stringent standards than federal standards under CAA title I. See 42 U.S.C. 7416.

    Additionally, while CAA section 111(d)(1) clearly authorizes States to develop state plans that establish performance standards and provides States with certain discretion in determining appropriate standards, CAA section 111(d)(2) provides the EPA specifically a role with respect to such state plans. This provision requires the EPA to prescribe a plan for a State “in cases where the State fails to submit a satisfactory plan.” The EPA therefore is charged with determining whether state plans developed and submitted under section 111(d)(1) are satisfactory,” and 40 CFR 60.27 accordingly provides timing and procedural requirements for the EPA to make such a determination. Just as guideline documents may provide information for States in developing plans that establish standards of performance, they may also provide information for EPA, particularly where EPA makes an emission guideline binding as described above, to consider when reviewing and taking action on a submitted state plan, as 40 CFR 60.27(c) references the ability of the EPA to find a state plan as “unsatisfactory because the requirements of (the implementing regulations) have not been met.” 8

    8See also 40 FR at 53343 (“If there is to be substantive review, there must be criteria for the review, and EPA believes it is desirable (if not legally required) that the criteria be made known in advance to the States, to industry, and to the general public. The emission guidelines, each of which will be subjected to public comment before final adoption, will serve this function.”).

    Through this ANPRM, the EPA solicits information on multiple aspects of a potential rule that would establish emission guidelines for States to establish performance standards for GHG emissions from existing EGUs. To facilitate effective and efficient provision and review of comments, we here identify main areas in which we are soliciting comment and request that commenters include the corresponding numeric identifier(s) when providing comments. We emphasize that we are not limiting comment to these identified areas, but that we are identifying these to provide a framework and consistent approach for commenters. In the following discussion, we solicit comment on (1) the roles and responsibilities of the States and the EPA in regulating existing EGUs for GHGs. As discussed below, we are particularly interested in comment on (1a) the suitability of provisions of the EPA's regulations that set forth the procedures and requirements for States' submittals of, and the EPA's action on, state plans for controlling emissions under CAA section 111, as applied in this context of regulating existing EGUs for GHG and on (1b) the extent of involvement and roles of the EPA in developing emission guidelines, including, but not limited to, providing sample state plan text, determining the BSER, considering existing or nascent duplicative state programs, and reviewing state plan submittals; the roles of the States in this endeavor, including determining the scope of most appropriate emissions standards, e.g., setting unit-by-unit or broader-based standards; and joint considerations, such as the form of the emission standard, i.e., rate- or mass-based, and compliance flexibilities, such as emissions averaging and trading.

    We further solicit comment on (2) application, in the specific context of limiting GHG emissions from existing EGUs, of reading CAA section 111(a)(1) as limited to emission measures that can be applied to or at a stationary source, at the source-specific level. Note that the solicitation in this ANPRM is application- and context-specific; comments on interpreting CAA section 111(a)(1) as generally applied to CAA section 111(d) should be submitted to the docket on the CPP repeal proposal. See 82 FR 48035.

    Under this source-specific reading of CAA section 111(a)(1), we solicit comment on (3) how to best define the BSER and develop GHG emission guidelines for existing EGUs, specifically with respect to (3a) identifying the BSER that can be implemented at the level of an affected source, including aspects related to efficiency (heat rate) improvement technologies and practices as well as other systems of emission reduction; (3b) considering whether GHG emission guidelines for existing EGUs should include presumptively approvable limits; and (3c) aspects relating to use of carbon capture and storage (CCS) as a compliance option to reduce GHG emissions. With respect to applicability of a potential rule, we solicit comment on (3d) criteria for determining affected sources and on (3e) potential subcategories and any effects on an appropriate corresponding BSER and standards.

    Additionally, we solicit comment on (4) potential interactions of a possible rule limiting GHG emissions from existing EGUs with existing statutory and regulatory programs, such as New Source Review (NSR) applicability and permitting criteria and processes and impacts on state plans of New Source Performance Standards (NSPS) coverage of existing sources that undergo reconstruction or modification sufficient to trigger regulation as a new source in that federal program.

    We again emphasize that we list these main areas in which we are soliciting comment only to provide a conceptual and organizational structure for providing comments and not to limit comment; we encourage provision of (5) any other comment that may assist the Agency in considering setting emission guidelines to limit GHG emissions from existing EGUs.

    C. Where can I get a copy of this document?

    In addition to being available in the docket, an electronic copy of this ANPRM will also be available on the internet. Following signature by the EPA Administrator, a copy of this ANPRM will be posted at the following address: https://www.epa.gov/Energy-Independence. Following publication in the Federal Register, the EPA will post the Federal Register version of the ANPRM and key technical documents at this same website.

    II. Background

    In accordance with Executive Order 13783, 82 FR 16093 (March 31, 2017), the EPA has reviewed the CPP and issued a notice of proposed repeal on October 16, 2017, 82 FR 48035. As discussed in that notice, the EPA proposes a change in the legal interpretation underlying the CPP to an interpretation that is consistent with the text, context, structure, purpose, and legislative history of the CAA, as well as with the Agency's historical understanding and exercise of its statutory authority. If the proposed interpretation were to be finalized, the CPP would be repealed. 82 FR 48038-39. The EPA also explains in that proposal that the Agency is considering the scope of its legal authority to issue a potential new rule and, in this ANPRM, is soliciting information on systems of emission reduction that are in accord with the legal interpretation discussed in the CPP repeal proposal and information on potential compliance measures and state planning requirements.

    III. The Statutory and Regulatory Framework under CAA Section 111(d) A. Introduction

    As discussed above, the EPA's authorized role under CAA section 111(d) is to establish a procedure under which States submit plans establishing standards of performance for existing sources, reflecting the application of the best system of emission reduction (BSER) that the EPA has determined is adequately demonstrated for the source category. Under the statute and the EPA's implementing regulations, the States have authority and discretion to establish less stringent standards where appropriate.

    This ANPRM solicits comment, as specified below, on certain aspects of the proper implementation of this statutory and regulatory framework with respect to GHG emissions from existing EGUs. This ANPRM further solicits comment both on the proper application in this context of the interpretation of CAA section 111 contained in the proposed repeal of the CPP—under which a BSER is limited to measures that apply to and at individual sources, on the source-specific level—and on the EPA's proper role and responsibilities under CAA section 111 as applied to GHG emissions from existing EGUs.

    B. States' Role and Responsibilities Under CAA Section 111(d) 1. Designing State Plans

    The implementing regulations at subpart B of 40 CFR part 60 set forth the procedures and requirements for States' submittal of, and the EPA's action on, state plans for control of designated pollutants from designated facilities under CAA section 111(d). A summary of the implementing regulations and a discussion of the basic concepts underlying them appear in the preamble published in connection with its promulgation (40 FR 53340, November 17, 1975). In brief, the implementing regulations provide that after a standard of performance applicable to emissions of a designated pollutant from new sources is promulgated, the Administrator will publish a draft guideline document containing information pertinent to the control of the same pollutant from designated (i.e., existing) facilities. The Administrator will also publish a notice of availability of the draft guideline document, and invite comments on its contents. After publication of a final guideline document for the pollutant in question, the States will have 9 months to develop and submit plans for control of that pollutant from designated facilities. Within 4 months after the date for submission of plans, the Administrator will approve or disapprove each plan (or portion thereof). If a state plan (or portion thereof) is disapproved, the Administrator will promulgate a federal plan (or portion thereof) within 6 months after the date for plan submission. These and related provisions of the implementing regulations were patterned after section 110 of the CAA and 40 CFR part 51 (concerning adoption and submittal of state implementation plans (SIPs) under CAA section 110).

    As discussed in the preamble to the implementing regulations, those regulations provide certain flexibilities available to States in establishing state plans. For example, as provided in 40 CFR 60.24, States may consider certain factors such as cost and other limitations in setting emission standards or compliance schedules. After the implementing regulations were first promulgated, CAA section 111(d) was amended to authorize States “to take into consideration, among other factors, the remaining useful life” of existing sources when applying standards to such sources. Public Law 95-95, 109(b), 91 Stat. 685, 699 (August 7, 1977). The EPA solicits comment on the proper application of this provision to a potential new rule addressing GHG emissions from existing EGUs, and whether any change to that provision—or to other provisions of the implementing regulations, particularly those establishing the time frames for States to submit their plans to the EPA, for the EPA to act on those plans, and for the EPA to develop its own plan or plans in the absence of an approvable state submission, as well as criteria for approval of state plans—is warranted in the context of such a potential new rulemaking. The EPA further solicits comment on which mechanisms, if any, presently available under CAA section 110 for SIPs may also be appropriate for the EPA to adopt and utilize in the context of state plans submitted under CAA section 111(d) (e.g., conditional approvals). The EPA also solicits comment on whether any other changes to the implementing regulations are appropriate.

    2. Application of Standards to Sources

    Historically, the EPA has provided States with guidance on the preparation of state plans (for example, by providing model rules or sample rule language). While providing this text provides States with a clear direction in creating their state plans, the EPA understands that it may also be perceived as sending a signal of limiting flexibility and limiting the consideration of other factors that are unique to each State and situation. The EPA is soliciting comment on whether it would be beneficial to States for the EPA to provide sample state plan text as part of the development of emission guidelines.

    Each State has its own unique circumstances to consider when regulating air pollution emissions from the power industry within that State. A prime example is the remaining useful life (RUL) of the State's fleet of EGUs. A State may take into account the RUL of sources within its fleet, such as how much longer an EGU will operate and how viable it is to invest in upgrades that can be applied at or to the source, when establishing emission standards as part of its state plan. These are source-specific considerations and play a role in a State evaluating the future of a fleet. The EPA solicits comment on the role of a State in setting unit-by-unit or broader emission standards for EGUs within its borders, including potential advantages of such an approach (e.g., it provides flexibility to tailor standards that take into account the characteristics specific to each boiler or turbine) and potential challenges (e.g., the impact that varying requirements could have on emissions and dispatch in such an interconnected system). The EPA also solicits comment on an approach where the EPA determines what systems may constitute BSER without defining presumptive emission limits and then allows the States to set unit-by-unit or broader emission standards based on the identified BSER while considering the unique circumstances of the State and the EGU. The EPA requests more information on the burden that it would create for States to determine unit-by-unit emission standards for each EGU, for determining what the remaining useful life of a given source is and how that should impact the level of the standard and on what role subcategorization can play in the emission standard setting process.

    The process that the State of North Carolina used in the development of its draft rule,9 in response to the CPP, may provide a useful example of a process a State could go through to determine unit-level emission standards based on technology that can be applied at or to a source.10 In that draft rule, North Carolina developed a menu of potential heat rate improvements. The State then examined these potential opportunities on a unit-by-unit basis, determined that some units had opportunities for cost-effective improvements and developed unit-specific emission standards consistent with those rates. North Carolina determined that other units did not have such opportunities (for reasons including that a given heat rate improvement opportunity was not applicable to a particular unit, that it had already been applied, or that the unit was scheduled to retire soon (i.e., RUL)).

    9https://files.nc.gov/ncdeq/Air%20Quality/rules/hearing/111dRules.pdf.

    10 The EPA is not otherwise endorsing nor judging whether this draft plan was or is adequate to meet any previous or future CAA section 111(d) emission guidelines.

    Another example of a unit-by-unit heat rate improvement analysis can be found in the final CAA section 111(b) GHG standards of performance for modified fossil fuel-fired steam generating EGUs (80 FR 64510, October 23, 2015). There, the EPA determined that the BSER for existing steam generating EGUs that trigger the modification provisions is the affected EGU's own best potential performance as determined by that source's historical performance. Relying on this BSER, the EPA finalized an emission standard that is based on a unit-specific emission limitation consistent with each modified unit's best 1-year historical performance and can be met through a combination of best operating practices and equipment upgrades. See 80 FR 64658. The EPA seeks comment on this approach to evaluate unit-specific heat rate improvement opportunities. We also seek comment on potential limitations to this approach, such as the potential for degradation of heat rate over time and the effects of changing operating conditions (e.g., changing from stable baseload operations to variable load-following operations or vice-versa).

    The EPA is aware that some States have already developed, or are in the process of developing, programs to limit GHG emissions from EGUs. The EPA requests comment on how these programs could interact with, or perhaps, satisfy, a potential rule under CAA section 111(d) to regulate GHG emissions from existing EGUs.

    a. Rate-Based and Mass-Based Compliance Options and Other Potential Compliance Flexibilities

    The Agency's existing CAA section 111 rules (both new-source rules under 111(b) and existing-source rules under 111(d)) are all based on emission rate standards (e.g., mass of pollutant per unit of heat input or production). The potential opportunities for improvements in a unit's GHG performance seem similarly amenable to emission rate standards. The EPA requests comment on whether emission guidelines for GHG emission rate standards is all that it or the States should consider in a potential future rulemaking or whether the use of mass-based emission standards should also be considered.

    In addition to the form of the emission standard, the EPA solicits comment on what factors the EPA should consider when reviewing State plans, as well as additional compliance flexibilities States should be able to employ in developing state plans. Should States be able to develop plans that allow emissions averaging? If so, should averaging be limited to units within a single facility, to units within a State, to units within an operating company, or beyond the State or company? If averaging is not limited between units in different States or between units owned by the same company, are any special requirements needed to facilitate such trading? Should mass-based trading be considered? If so, how should rate-based compliance instruments intended to meet unit-specific emission rates be translated into mass-based compliance instruments? Should rate-based trading programs be able to interact with mass-based trading programs? What considerations should States and the EPA take into account when determining appropriate implementing and enforcing measures for emission standards? The EPA requests information and feedback on all of these questions and on what limitations, if any, apply to States as they set standards.

    C. The EPA's Interpretation of CAA Section 111(a)(1)

    In the CPP repeal proposal, the EPA explained that the Administrator proposes to return to the traditional reading of CAA section 111(a)(1) as being limited to emission reduction measures that can be applied to or at a stationary source, at the source-specific level. Under this reading, such measures must be based on a physical or operational change to a building, structure, facility, or installation at that source, rather than measures that the source's owner or operator can implement on behalf of the source at another location. The EPA is not soliciting comment through this ANPRM on this proposed interpretation; rather, comments on interpreting CAA section 111(a)(1) should be submitted on the CPP repeal proposal. Here, the EPA is requesting comment on how the program should be implemented assuming adoption of that proposed interpretation.

    D. The EPA's Role and Responsibilities Under CAA Section 111(d)

    The EPA has certain responsibilities to fulfill and certain authority to act when issuing a rule under CAA section 111(d). Specifically, the EPA is required to prescribe regulations establishing a procedure under which States submit plans that establish standards of performance for existing sources and that provide for the implementation and enforcement of such standards. The EPA's regulations implementing CAA section 111(d) created a process by which the EPA issues “emission guidelines” reflecting the Administrator's judgment on the degree of control attainable with the BSER that has been adequately demonstrated for existing sources in relevant source categories. See generally 40 FR 53340 (November 17, 1975). The EPA has set emission guidelines consistent with this approach for five source categories under CAA section 111(d).11 These earlier emission guidelines shared a number of common features or elements:

    11 These categories are: Phosphate Fertilizer Plants, see 42 FR 12022 (March 1, 1977); Sulfuric Acid Plants, see 42 FR 55796 (October 18, 1977); Kraft Pulp Mills, see 44 FR 29828 (May 22, 1979); Primary Aluminum Plants, see 45 FR 26294 (April 17, 1980); and Municipal Solid Waste Landfills, see 61 FR 9905 (March 12, 1996). (Note that the Agency also finalized CAA section111(d) emission guidelines for municipal waste combustors, see 56 FR 5514 (February 11, 1991); however, those rules were subsequently withdrawn and superseded by requirements under CAA section 129, see 60 FR 65387 (December 19, 1995)).

    • A description of the BSER that has been adequately demonstrated based on controls or actions that could be implemented at the level of the individual source;

    • A consideration of the degree of emission limitation achievable, taking into account costs and energy and environmental impacts from the application of the BSER;

    • A compliance schedule;

    • A level or degree of emission reductions achievable with application of the BSER;

    • Rule language implementing the emission guideline; and

    • Other information to facilitate the development of state plans.

    Once the EPA issues an emission guideline, States develop CAA section 111(d) plans establishing standards of performance for the covered sources within their borders and providing procedures for the implementation and enforcement of such standards similar to the process used for SIPs for National Ambient Air Quality Standards under CAA section 110. In accordance with CAA section 111(d)(1), state plans may—when applying a standard of performance to a particular source—“take into consideration, among other factors, the remaining useful life” of an existing source to which such standard applies. 42 U.S.C. 7411(d)(1). The state plans are submitted to the EPA for review and approval or disapproval through notice-and-comment rulemaking. In cases where a State fails to submit a “satisfactory” plan, the EPA has authority to prescribe a plan for that State. Where a State fails to enforce an EPA-approved plan, the EPA has the authority to enforce the provisions of such a plan.

    The EPA is taking comment on how best to define the BSER and to develop emission guidelines for EGUs for emissions of GHG. Specifically, we are requesting comment on the following three subjects:

    (1) Identifying the BSER that can be implemented at the level of an affected source (section IV below discusses what such a BSER might look like in more detail).

    (2) Whether emission guidelines for EGUs for emissions of GHG should include presumptively approvable limits.

    (3) How much discretion States have to depart from the EPA's emission guidelines.

    As discussed in the proposed repeal of the CPP, there have been significant changes in the power sector since the CPP was finalized. We take comment on how these changes should be factored into any analysis that the EPA does regarding determination of a BSER that can be applied to or at an individual source, at the source-specific level. In particular, the EPA is interested in comment on how the EPA should consider the impact on the benefits and costs of any potential new rule from state programs to reduce GHG emissions from existing EGUs that are not federally mandated.

    1. BSER

    The EPA's traditional approach to establishing the BSER focused on technological or operational measures that can be applied to or at a single source. The Agency is now requesting comment on how to take an approach to regulating GHG from existing EGUs in line with its prior practice under CAA section 111(d) whereby it would consider only measures that can be applied at or to individual sources to develop the BSER and emission guidelines.12 The types of measures that may be considered are discussed in more detail below in section IV.

    12 As noted above, the EPA is not soliciting comment through this ANPRM on that proposed interpretation. Rather, comments on how the EPA should interpret CAA section 111(a)(1) should be submitted to the docket for the CPP repeal proposal.

    2. Presumptively Approvable Limits

    As discussed in section IV of this document, with regard to coal-fired EGUs, the potential for emission reductions at the unit-level or source-level may vary widely from unit to unit. Consequently, broadly applicable, presumptively approvable emission limitations (even at a subcategorized level) may not be appropriate for GHG emissions from EGUs. Therefore, in this ANPRM, the EPA is taking comment on an approach where the Agency defines BSER or otherwise provides emission guidelines without providing a presumptively approvable emission limitation.

    IV. Available Systems of GHG Emission Reduction

    The EPA has examined technologies and strategies that could potentially be applied at or to existing EGUs to reduce emissions of GHG. The Agency primarily focused on opportunities for heat rate (or efficiency) improvements at fossil fuel-fired steam generating EGUs to be a part of the BSER.

    A. Heat Rate Improvements for Boilers 1. Heat Rate Improvement

    Heat rate is a measure of efficiency for fossil fuel-fired EGUs. An EGU's heat rate is the amount of energy input, measured in British thermal units (Btu), required to generate one kilowatt hour (kWh) of electricity. The more efficiently an EGU operates, the lower its heat rate will be. As a result, an EGU with a lower heat rate will consume less fuel per kWh generated and emit lower amounts of GHG and other air pollutants per kWh generated as compared to a less efficient unit. An EGU's heat rate can be affected by a variety of design characteristics, site-specific factors, and operating conditions, including:

    • Thermodynamic cycle of the boiler;

    • Boiler and steam turbine size and design;

    • Cooling system type;

    • Auxiliary equipment, including pollution controls;

    • Operations and maintenance;

    • Fuel quality; and

    • Ambient conditions.

    The EPA has previously assessed the potential heat rate improvements of existing coal-fired EGUs by conducting statistical analyses using historical gross heat rate data from 2002 to 2012 for 884 coal-fired EGUs that reported both heat input and gross electricity output to the Agency in 2012.13 The Agency grouped the EGUs by regional interconnections—Western, Texas, and Eastern—and analyzed potential heat rate improvements within each interconnection. The results of the statistical analyses indicated that there may be significant potential for heat rate improvement—both regionally and nationally. However, these results represent fleet-wide average heat rate improvement. The EPA did not conduct analyses to identify heat rate improvement opportunities at the unit level, and the Agency recognizes that the fleet of U.S. fossil fuel-fired EGUs is varied in terms of size, age, fuel type, fuel usage (e.g. baseload, cycling, etc.) boiler type, etc. The EPA solicits comment on this statistical approach and its applicability in identifying heat rate improvement opportunities at the unit level. The EPA also is aware that many coal-fired EGUs now often operate under load following and cycling conditions. The EPA solicits comment on how best to evaluate unit level heat rate improvement opportunities while properly accounting for the effects of changes in the historical operation of such units. The EPA also invites comment on how heat rate is impacted when EGUs operate outside their design conditions and what options are available to remedy the efficiency losses these units may incur when responding to variable load demands. The EPA also requests comment on whether there are any data that the Agency should consider collecting either for the purpose of proposing emission guidelines or that could ultimately be helpful to States in developing state plans.

    13 Greenhouse Gas Mitigation Measures Technical Support Document (TSD), Docket ID: EPA-HQ-OAR-2013-0602-36859.

    There are several technologies and equipment upgrades—as well as good operating and maintenance practices—that EGU owners or operators may utilize to reduce an EGU's heat rate, in particular for utility boilers. Table 1 lists some technology and equipment upgrades that owners or operators of EGUs may be able to deploy to improve heat rate. Table 2 lists some good practices that have the potential to reduce an EGU's heat rate. (Note, these lists of technologies and practices, along with their respective potential heat rate improvements, were drawn from studies listed below in Table 3.)

    The EPA is seeking comment on all technologies and practices that may be implemented to improve heat rate—including, but not limited to, those listed in Tables 1 and 2. Specifically, the Agency is interested in the availability and applicability of technologies and best operating and maintenance practices for the U.S. fossil fuel-fired EGU fleet. We are also soliciting comment on potential heat rate improvements from technologies and practices; on likely costs of deploying these technologies and the good operating and maintenance practices, including applicable planning, capital, and operating and maintenance costs; on owner and operator experiences deploying these technologies and employing these operating and maintenance practices; on barriers to or from deploying these technologies and operating and maintenance practices; and on any other technologies or operating and maintenance practices that may exist for improving heat rate, but are not reflected on these lists. The EPA solicits comments on any differences in cost or effectiveness in technologies that are due to impacts of regional or geographical considerations (e.g., regional labor or materials costs).

    The EPA also requests comment on the merits of differentiating between gross and net heat rate. This may be particularly important when considering the effects of part load operations (i.e., net heat rate would include inefficiencies of the air quality control system at a part load whereas gross heat rate would not). The EPA explicitly requests comment on how the technologies and operating practices are potentially affected by the operation of the EGU (e.g., at part load or in cycling operations).

    Table 1—Example Equipment Upgrades and Technology to Improve Heat Rates at Utility Boilers Equipment upgrade(s) Potential heat rate
  • improvement
  • Replace materials handling motors and drives with more efficient motors and/or variable frequency drives to reduce ancillary energy consumption Negligible. Improve coal pulverizers to produce more finely ground coal to improve combustion efficiency 0.52-2.6%. Use waste heat to dry low-grade coal and improve combustion efficiency N/A. Automate boiler drains to manage make-up water intake N/A. Improve boiler, furnace, ductwork, and pipe insulation to reduce heat loss N/A. Upgrade economizer to increase heat recovery 50-100 Btu/kWh. Install a neural network and advanced sensors and controls to optimize plant station operation 0-150 Btu/kWh. Install intelligent sootblowers to enhance furnace efficiency 30-150 Btu/kWh. Improve seals on regenerative air pre-heaters to reduce air in-leakage and increase heat recovery 10-40 Btu/kWh. Install sorbent injection system to reduce flue gas sulfuric acid content and allow increased energy recovery at the air heater 50-120 Btu/kWh. Upgrade steam turbine internals to improve efficiency and replace worn seals to reduce steam leakage 100-300 Btu/kWh; 1.5-5.5%. Retube the condenser to restore efficiency or expand condenser surface area to improve efficiency 3-70 Btu/kWh; 1.0-3.5%. Replace feedwater pump seals to reduce water loss N/A. Install solar systems to pre-heat feedwater to improve efficiency N/A. Increase feedwater heating surface to improve efficiency N/A. Overhaul or upgrade boiler feedwater pumps to improve efficiency 25-50 Btu/kWh. Replace centrifugal induced draft (ID) fans with axial ID fans 10-50 Btu/kWh. Replace ID fan motors with variable frequency drives 10-150 Btu/kWh. Upgrade flue-gas desulfurization components (e.g., co-current spray tower quencher, turning vanes, variable frequency drives) to reduce pressure drop, improve flow distribution, and reduce ancillary energy consumption 0-50 Btu/kWh. Upgrade the electrostatic precipitator energy system (e.g., high voltage transformer/rectifier sets) to improve particulate matter capture and reduce energy consumption 0-5 Btu/kWh. Replace older motors with more efficient motors to reduce ancillary energy consumption 0-21 Btu/kWh. Refurbish and/or upgrade cooling tower packing material to improve cycle efficiency 0-70 Btu/kWh. Install condenser tube cleaning system to reduce scaling, improve heat transfer and restore efficiency N/A. N/A = The potential heat rate improvement is unknown.
    Table 2—Example Good Practices to Improve Heat Rates at Utility Boilers Good practice(s) Potential heat rate
  • improvement
  • Reduce excess air to improve combustion efficiency N/A. Optimize primary air temperature to improve combustion efficiency N/A. Measure and control primary and secondary air flow rates to improve combustion efficiency N/A. Tune individual burners (balance air/fuel ratio) to improve combustion efficiency N/A. Conduct more frequent condenser cleanings to maintain cycle performance 30-70 Btu/kWh. Monitor condenser performance to track efficiency/performance N/A. Use secondary air for ammonia vaporization and dilution to reduce ancillary energy consumption 0-5 Btu/kWh. Careful monitoring of the water treatment system for optimal feedwater quality and cooling water performance to reduce scale build-up and corrosion plus maintain efficiency N/A. Conduct maintenance of cooling towers (e.g., replace missing/damaged planks) to restore cooling tower efficiency N/A. Chemical clean scale build-up on feedwater heaters to improve heat transfer N/A. Repair steam and water leaks (e.g., replace valves and steam traps) to reduce makeup water consumption N/A. Repair boiler, furnace, ductwork, and air heater cracks to reduce air in-leakage and auxiliary energy consumption N/A. Clean air pre-heater to improve heat transfer N/A. Adopt sliding pressure operation to reduce turbine throttling losses N/A. Reduce attemperator activation to reduce heat input N/A. Clean turbine blades to remove deposits and improve turbine efficiency N/A. Maintain instrument calibration to ensure valid operating data N/A. Perform on-site appraisals to identify areas for improved heat rate performance N/A. Adopt training program for operating and maintenance staff on heat rate improvements N/A. Adopt incentive program to reward actions to improve heat rate N/A. Implement heat rate analytics to identify real-time heat rate deviations N/A. Plant lighting upgrades to reduce ancillary energy consumption N/A. Use predictive maintenance to avoid outages and de-rate events N/A. N/A = The potential heat rate improvement is unknown.

    The technologies and operating and maintenance practices listed above may not be available or appropriate for all types of EGUs; and some owners or operators may have already deployed some of the technologies and/or employed some of the best operating and maintenance practices at their fossil fuel-fired EGUs. In addition, some of the technologies and operating and maintenance practices listed above might be alternatives to other actions on the list and, therefore, mutually exclusive of other technologies and practices.

    Government agencies and laboratories, industry research organizations, engineering firms, equipment suppliers, and environmental organizations have conducted studies examining the potential for improving heat rate in the U.S. EGU fleet or a subset of the fleet. Table 3 provides a list of some reports, case studies, and analyses about heat rate improvement opportunities in the U.S. The EPA is seeking comment on the appropriateness of the studies for informing our understanding of potential heat rate improvement opportunities. The EPA is also seeking information on any additional publicly available studies that identify heat rate improvement measures or demonstrate actual or potential heat rate improvements at fossil fuel-fired EGUs, including the appropriateness of the studies for establishing heat rate improvement goals.

    Table 3—Heat Rate Improvement Reports, Case Studies, and Analyses Heat rate improvement report organization/publication (author, if known)—title—year [URL] ABB Power Generation—Energy Efficient Design of Auxiliary Systems in Fossil-Fuel Power Plants [https://library.e.abb.com/public/5e627b842a63d389c1257b2f002c7e77/Energy%20Efficiency%20for%20Power%20Plant%20Auxiliaries-V2_0.pdf]. Alstom Engineering (Sutton)—CO2 Reduction Through Energy Efficiency in Coal-Fired Boilers—2011 [http://www.mcilvainecompany.com/Universal_Power/Subscriber/PowerDescriptionLinks/Jim%20Sutton%20-%20Alstom%20-%203-31-2011.pdf]. Congressional Research Service (Campbell)—Increasing the Efficiency of Existing Coal-fired Power Plants (R43343)—2013 [https://fas.org/sgp/crs/misc/R43343.pdf]. EIA—Analysis of Heat Rate Improvement Potential at Coal-Fired Power Plants—2015 [https://www.eia.gov/analysis/studies/powerplants/heatrate/pdf/heatrate.pdf]. EPA—Greenhouse Gas Mitigation Measures—2015 [https://www.regulations.gov/document?D=EPA-HQ-OAR-2013-0602-37114]. EPRI—Range of Applicability of Heat Rate Improvements—2014 [https://www.epri.com/#/pages/product/000000003002003457]. European Commission—Integrated Pollution Prevention and Control Reference Document on Best Available Techniques for Large Combustion Plants—2006 [http://eippcb.jrc.ec.europa.eu/reference/BREF/lcp_bref_0706.pdf]. GE—Comments of the General Electric Company—2014 [https://www.regulations.gov/document?D=EPA-HQ-OAR-2013-0602-22971]. IEA (Reid)—Retrofitting Lignite Plants to Improve Efficiency and Performance (CCC/264)—2016 [http://bookshop.iea-coal.org/reports/ccc-264/83861]. IEA (Henderson)—Upgrading and Efficiency Improvement in Coal-fired Power Plants (CCC/221)—2013 [http://bookshop.iea-coal.org/reports/ccc-221/83186]. Lehigh University—Reducing Heat Rates of Coal-fired Power Plants—2009 [http://www.lehigh.edu/~inenr/leu/leu_61.pdf]. NETL—Opportunities to Improve the Efficiency of Existing Coal-fired Power Plants—2009 [http://www.netl.doe.gov/File%20Library/Research/Energy%20Analysis/Publications/OpportImproveEfficExistCFPP-ReportFinal.pdf]. NETL—Improving the Thermal Efficiency of Coal-Fired Power Plants in the United States—2010 [http://www.netl.doe.gov/File%20Library/Research/Energy%20Analysis/Publications/ThermalEfficCoalFiredPowerPlants-TechWorkshopRpt.pdf]. NETL—Improving the Efficiency of Coal-Fired Power Plants for Near Term Greenhouse Gas Emissions Reductions (DOE/NETL-2010/1411)—2010 [http://www.netl.doe.gov/File%20Library/Research/Energy%20Analysis/Publications/DOE-NETL-2010-1411-ImpEfficCFPPGHGRdctns-0410.pdf]. NETL—Options for Improving the Efficiency of Existing Coal-Fired Power Plants (DOE/NETL-2013/1611)—2014 [https://www.netl.doe.gov/energy-analyses/temp/FY14_OptionsforImprovingtheEfficiencyofExistingCoalFiredPowerPlants_040114.pdf]. National Petroleum Council—Electric Generation Efficiency—2007 [http://www.npc.org/Study_Topic_Papers/4-DTG-ElectricEfficiency.pdf]. NRDC—Closing the Power Plant Carbon Pollution Loophole: Smart Ways the Clean Air Act Can Clean Up America's Biggest Climate Polluters (12-11-A)—2013 [https://www.nrdc.org/sites/default/files/pollution-standards-report.pdf]. Power Engineering International (Cox)—Dry Sorbent Injection for SOX Emissions Control—2017 [http://www.powerengineeringint.com/articles/print/volume-25/issue-6/features/dry-sorbent-injection-for-sox-emissions-control.html]. Power Mag (Korellis)—Coal-Fired Power Plant Heat Rate Improvement Options, Parts 1 & 2—2014 [http://www.powermag.com/coal-fired-power-plant-heat-rate-improvement-options-part-1] [http://www.powermag.com/coal-fired-power-plant-heat-rate-improvement-options-part-2]. Power Mag (Peltier)—Steam Turbine Upgrading: Low-hanging Fruit—2006 [http://www.powermag.com/steam-turbine-upgrading-low-hanging-fruit]. Resources for the Future (Lin et al)—Regulating Greenhouse Gases from Coal Power Plants Under the Clean Air Act (RFF-DP-13-05)—2014 [http://www.rff.org/files/sharepoint/WorkImages/Download/RFF-DP-13-05.pdf]. S&L—Coal-fired Power Plant Heat Rate Reductions (SL-009597)—2009 [https://www.regulations.gov/document?D=EPA-HQ-OAR-2013-0602-36895] S&L—Coal Fired Power Plant Heat Rate Reduction—NRECA (SL-012541)—2014 [https://www.regulations.gov/document?D=EPA-HQ-OAR-2013-0602-22767 Supp 33]. Sierra Club (Buckheit & Spiegel)—Sierra Club 52 Unit Study—2014 [http://content.sierraclub.org/environmentallaw/sites/content.sierraclub.org.environmentallaw/files/Appendix%201%20-%20Rate%20v%20Load%20Summary.pdf]. Storm Technologies—Applying the Fundamentals for Best Heat Rate Performance of Pulverized Coal Fueled Boilers—2009 [http://www.stormeng.com/pdf/EPRI2009HeatRateConference%20FINAL.pdf].

    It has been noted that unit-level heat rate improvements, with the resulting reductions in variable operating costs at those improved EGUs, could lead to increases in utilization of those EGUs as compared to other generating options. See generally 80 FR 64745. This so-called “rebound effect” could result in smaller overall reductions in GHG emissions (depending on the GHG emission rates of the displaced generating capacity). The EPA solicits comments on this potential “rebound effect,” on whether the EPA should consider it in a potential future rulemaking, and on any available measures that the Agency can take to minimize any potential effect.

    2. Measuring Heat Rate at Fossil Fuel-Fired EGUs

    Accurately monitoring changes in heat rate is vital for assessing the degree of heat rate improvement at fossil fuel-fired EGUs. Most coal-fired EGUs already continuously monitor heat input and gross electric output and report the information to the EPA under 40 CFR part 75. To calculate heat input, coal-fired EGUs monitor the CO2 concentration and stack volumetric flow rates. Part 75 classifies hourly CO2 concentration and stack volumetric flow rates measurements as valid, if the continuous emissions monitoring systems' (CEMS') relative accuracies are within plus or minus 10 percent when compared to federal reference methods.

    In 1999, the EPA introduced new federal reference methods to address angular stack flow (Methods 2F and 2G) and the effect of the stack walls on gas flow (Method 2H). In general, these alternative measurement methods reduce or eliminate the over-estimation of stack gas volumetric flow that results from the use of Method 2 when specific flow conditions (e.g., angular flow) are present in the stack. Generally, the alternative methods lead to lower flow rates, and, as a result, lower heat input. After the introduction of these new methods, many coal-fired EGUs adopted the alternative methods to measure flow and calculate mass emissions. However, coal-fired EGUs are not required to use the alternative measurement methods, and they may change methods when conducting a Relative Accuracy Test Audit (RATA).

    The EPA is seeking comment on the level of uncertainty of measurement of flue gas CO2 concentration and stack volumetric flow rate; options to reduce the uncertainty associated with CEMS at coal-fired EGUs and fuel flow monitors (40 CFR part 75, appendix D) and 40 CFR part 75, appendix G, equation G-4 at natural gas- and oil-fired EGUs; options for eliminating or revising 40 CFR part 75, appendix G, equation G-1 at natural gas- and oil-fired EGUs; and alternative approaches to accurately measure heat rate at fossil fuel-fired EGUs.

    The EPA also requests comment on the need for and utility of direct heat input monitoring as EGUs generally do not monitor heat input directly, but instead calculate it from CEMS data.

    B. Heat Rate Improvements at Natural Gas-fired Combustion Turbines

    The EPA has also considered opportunities for emission reductions at natural gas-fired stationary combustion turbines as a part of the BSER—at both simple cycle turbines and combined cycle turbines—and previously determined that the available emission reductions would likely be too expensive or would likely provide only small overall reductions. In the development of the CAA section 111(b) standards of performance for new, modified, and reconstructed EGUs, several commenters provided information on various options that may be available to improve the efficiency of existing natural gas-fired stationary combustion turbines. See 80 FR 64620. Commenters—including turbine manufacturers—described specific technology upgrades for the compressor, combustor, and gas turbine components that operators of existing combustion turbines may deploy. These state-of-the-art gas path upgrades, software upgrades, and combustor upgrades can reduce GHG emissions by a significant amount. In addition, one turbine manufacturer stated that existing combustion turbines can achieve the largest efficiency improvements by upgrading existing compressors with more advanced compressor technologies, potentially improving the combustion turbine's efficiency by an additional margin. See 80 FR 64620.

    In addition to upgrades to the combustion turbine, the operator of a natural gas combined cycle (NGCC) unit will have the opportunity to improve the efficiency of the heat recovery steam generator and steam cycle using retrofit technologies that may reduce the GHG emissions by 1.5 to 3 percent. These include (1) steam path upgrades that can minimize aerodynamic and steam leakage losses; (2) replacement of the existing high pressure turbine stages with state-of-the-art stages capable of extracting more energy from the same steam supply; and (3) replacement of low-pressure turbine stages with larger diameter components that extract additional energy and that reduce velocities, wear, and corrosion.

    The EPA seeks comment on the broad availability and applicability of any heat rate (efficiency) improvements for natural gas combustion turbine EGUs including, but not limited to, those discussed in this ANPRM. We also seek comment on the Agency's previous determination that the available GHG emission reduction opportunities would likely provide only small overall GHG reductions as compared to those from heat rate improvements at existing coal-fired EGUs. See 80 FR 64756.

    C. Other Available Systems of GHG Emission Reduction 1. Broad Solicitation of Information on Other Available Systems of GHG Emission Reduction

    The EPA is interested in obtaining information on any other systems of GHG emission reductions that may be available for consideration as the BSER for existing fossil fuel-fired EGUs. The EPA is also interested in obtaining information on available systems of emission reduction that may not meet the criteria for consideration as the BSER (because, for example, they may not be broadly applicable), but are emission reduction options that may be considered as compliance options for individual units.

    The Agency solicits information on any system of emission reduction that commenters believe to be available and applicable for reducing emissions of GHG from existing fossil fuel-fired steam-generating EGUs (e.g., utility boilers and integrated gasification combined cycle (IGCC) units) and/or combustion turbines (e.g., NGCC units). The Agency seeks information on all aspects of the systems of emission reduction—including the availability, applicability, technical feasibility, and the cost of any such systems of emission reduction. The EPA also seeks information on any limitations to the application of systems of emission reduction. In particular, the Agency is interested in whether there are geographic limitations to the applicability of suggested emission reduction systems. The Agency also notes that the current fleet of existing EGUs is quite diverse in terms of generating technology, size, location, age, fuel usage, and configuration. The EPA is interested in obtaining information on any limitations on the use of emission reduction systems that are due to the diverse nature of the existing fleet of EGUs. For example, are any potential emission reduction systems limited by geographic location? Are any potential systems of emission reduction limited to use with only certain fossil fuels or certain coal types?

    2. Carbon Capture and Storage (CCS) 14

    14 CCS is sometimes referred to as Carbon Capture and Sequestration. It is also sometimes referred to as CCUS or Carbon Capture Utilization and Storage (or Sequestration), where the captured CO2 is utilized in some useful way (for example in enhanced oil recovery) before ultimate storage. In this document, we consider these terms to be interchangeable.

    The EPA has previously determined that CCS (or partial CCS) should not be a part of the BSER for existing fossil fuel-fired EGUs because it was significantly more expensive than alternative options for reducing emissions. See 80 FR 64756. The EPA continues to believe that neither CCS nor partial CCS are technologies that can be considered as the BSER for existing fossil fuel-fired EGUs. However, if there is any new information regarding the availability, applicability, or technical feasibility of CCS technologies, commenters are encouraged to provide that information to the EPA.

    The Agency recognizes that some companies may be interested in using CCS technology as a compliance option—especially when they are able to use the captured CO2 in enhanced oil recovery operations (e.g., the W. A. Parish Plant in Texas). The EPA solicits information on how potentially affected EGUs may utilize retrofit CCS technology as a compliance option to reduce CO2 emissions and whether those EGUs should be allowed to participate in any intrastate or interstate trading program. The Agency also seeks information on the appropriate level of monitoring, recordkeeping, and reporting that should be required for sequestered CO2 in such cases. In the final new source performance standards issued under CAA section 111(b), the EPA requires new fossil fuel-fired EGUs to limit CO2 emissions and identifies partial CCS as one of the compliance options. In that final rule, any new affected EGU that uses CCS to meet the applicable CO2 emission limit must report in accordance with 40 CFR part 98, subpart PP (Suppliers of Carbon Dioxide), and the captured CO2 must be injected at a facility or facilities that reports in accordance with 40 CFR part 98, subpart RR (Geologic Sequestration of Carbon Dioxide). See 80 FR 64654 and 40 CFR 60.5555(f). Together, these requirements ensure that the amount of captured and sequestered CO2 will be tracked as appropriate at project and national levels and that the status of the CO2 in its geologic storage site will be monitored, including air-side monitoring and reporting. The EPA solicits comment on this approach and other alternatives that may be used when utilizing CCS as a compliance option for meeting emission reduction requirements in a state plan.

    D. EGU Source Categories and Subcategories 1. Applicability Criteria

    The EPA has specified that an affected EGU is any existing fossil fuel-fired electric utility steam generating unit (i.e., utility boiler or IGCC unit) or stationary combustion turbine that meets specific criteria. An affected EGU (either steam generating or stationary combustion turbine) must serve a generator capable of selling more than 25 megawatts to a utility power distribution system and have a base load heat input rating greater than 250 million Btu per hour. An affected stationary combustion turbine EGU must meet the definition of a combined cycle (i.e., NGCC) or combined heat and power combustion turbine. The EPA has also specifically exempted certain EGUs from applicability, including simple cycle turbines, certain non-fossil units, and certain combined heat and power units. See 80 FR 64716. The EPA solicits comment on applicability criteria in a potential new rule and whether the Agency should retain the criteria and exemptions previously set forth.

    2. Subcategories

    CAA section 111 requires the EPA first to list source categories that may reasonably be expected to endanger public health or welfare and then to regulate new sources within each of those source categories. CAA section 111(d)(1) is silent on whether the EPA may establish subcategories for existing sources, but the EPA has interpreted this provision to authorize the EPA to exercise discretion as to whether and, if so, how to subcategorize existing sources subject to CAA section 111(d). Further, the implementing regulations under CAA section 111(d) provide that the Administrator will specify different emission guidelines or compliance times or both “for different sizes, types, and classes of designated facilities when costs of the control, physical limitations, geographical location, or similar factors make subcategorization appropriate.” 15

    15 40 CFR 60.22(b)(5).

    In previous rulemakings, the EPA has promulgated presumptive EGU-related emission standards for subcategories of sources. For example, the EPA has issued separate NSPS for sulfur dioxide (SO2) and nitrogen oxide (NOx) emissions from EGUs that utilize coal refuse as a subcategory of steam generating EGUs that utilize coal or other fossil fuel. See 77 FR 9423. The EPA has also promulgated separate standards of performance that distinguish between stationary combustion turbines that operate to serve intermediate and baseload power demand as opposed to those that operate to serve peak power demand. The EPA has also issued separate standards based on coal-type. For example, in the Mercury and Air Toxics Standards (MATS), promulgated under CAA section 112(d)(1),16 the Agency issued separate mercury emission standards for coal-fired EGUs that use lignite versus those that use non-lignite coal. The Agency, also in the MATS rule, promulgated separate emission standards for IGCC EGUs as compared to the standards issued for utility boilers. See 77 FR 9487. The Agency solicits comment on whether potentially affected EGU sources (e.g., steam generating EGUs, stationary combustion turbines) should be grouped into categories and subcategories for purposes of identifying the BSER. Commenters are requested to provide justification for such subcategorization. For example, are emissions and emission reduction opportunities distinct for EGUs of different sizes, classes, or types—or for EGUs utilizing different types or qualities of fossil fuels? The EPA requests comment on subcategorization based on operation or utilization of the EGU—i.e., based on whether the EGU (whether a utility boiler, an IGCC unit, or a stationary combustion turbine) is operated to serve baseload, intermediate, or peak power demand.

    16 CAA section 112(d)(1) provides that “The Administrator may distinguish among classes, types, and sizes of sources within a category or subcategory in establishing such standards . . . .”

    V. Potential Interactions with Other Regulatory Programs A. New Source Review (NSR)

    The NSR program is a preconstruction permitting program that requires stationary sources of air pollution to obtain permits prior to beginning construction. The NSR program applies both to new construction and to modifications of existing sources. New construction and modifications that emit air pollutants over certain thresholds are subject to major NSR requirements, while smaller emitting sources and modifications may be subject to minor NSR requirements.17 Major NSR permits for sources in attainment areas and for other pollutants regulated under the major source program are referred to as prevention of significant deterioration (PSD) permits, while major NSR permits for sources emitting nonattainment pollutants and located in nonattainment areas are referred to as nonattainment NSR (NNSR) permits.

    17 Major sources and certain other sources are also required by the CAA to obtain title V operating permits. While title V permits generally do not establish new emissions limits, they consolidate requirements under the CAA into a comprehensive air permit.

    Since emission guidelines that are established pursuant to CAA section 111(d) apply to units at existing sources, the interaction between CAA section 111(d) and the NSR program primarily centers around the treatment of modifications of existing sources. Generally, a major stationary source triggers major NSR permitting requirements when it undertakes a physical or operational change that would result in (1) a significant emission increase at the emissions unit, and (2) a significant net emissions increase at the source (i.e., a source-wide “netting” analysis that considers emission increases and decreases occurring at the source during a contemporaneous period). See, e.g., 40 CFR 52.21(b)(2)(i). NSR regulations define what emissions rate on an annual tonnage basis constitutes “significant” for NSR pollutants. See, e.g., 40 CFR 52.21(b)(23).18 For example, an increase in emissions is “significant” for NOX when it is at least 40 tons per year. To calculate the emissions increase from a project, the “projected actual emissions” (PAE) are compared to the “baseline actual emissions” (BAE). For EGUs, the PAE is the maximum annual rate (tons per year) that the modified unit is projected to emit a pollutant in any one of the 5 years (or 10 years if the design capacity increases) after the project, excluding any increase in emissions that (1) is unrelated to the project, and (2) could have been accommodated during the baseline period (commonly referred to as the “demand growth exclusion”). The BAE for an EGU is the average annual rate of actual emissions during any 2-year period within the last 5 years.

    18 In the case of GHGs, EPA regulations currently do not have a “significant” emissions rate. Under existing regulations, a major source would trigger PSD permitting requirements for GHG if it undergoes a modification that results in a significant increase in the emissions of a pollutant other than GHGs and a GHG emissions increase of 75,000 tons per year of carbon dioxide equivalent (CO2e) as well as a GHG emissions increase (i.e., anything above zero) on a mass basis. In proposing a significant emissions rate for GHG, the EPA has proposed to remove the mass-based component of the NSR emissions test for GHG. See 81 FR 68110 (October 3, 2016). Furthermore, in UARG v. EPA, 134 S. Ct. 2427 (June 23, 2014), the U.S. Supreme Court held that an increase in GHG emissions alone cannot by law trigger the NSR requirements of the PSD program under section 165 of the CAA. Thus, unlike other NSR pollutants, a modification that increases only GHG emissions above the applicable level will not trigger the requirement to obtain a PSD permit.

    If a physical or operational change triggers the requirements of the major NSR program, the source must obtain a permit prior to making the change. The pollutant(s) at issue and the air quality designation of the area where the facility is located or proposed to be built determine the specific permitting requirements. The CAA requires sources to meet emission limits based on Best Available Control Technology (BACT) for PSD permits and Lowest Achievable Emissions Rate (LAER) for NNSR permits. CAA sections 165(a)(4), 173(a)(2). These technology requirements for major NSR permits are not predetermined by a rule or state plan, but are case-specific decisions made by the permitting agency. Other requirements to obtain a major NSR permit vary depending on whether it is a PSD or NNSR permit and a State or a federal permit action.

    New sources and modifications that do not require a major NSR permit generally require a minor NSR permit prior to construction. Minor NSR permits are almost exclusively issued by state and local air agencies, and since the CAA is less prescriptive regarding requirements for these permits, agencies have more flexibility to design their own programs.

    The EPA's regulations offer flexible permitting approaches that enable sources undergoing modifications to avoid triggering major NSR. In the case of Plantwide Applicability Limits (PALs), a source that plans to make modifications to its emission units can avoid major NSR requirements as long as it obtains a PAL permit and operates within the source-wide emissions cap of the PAL. See, e.g., 40 CFR 52.21(aa). In addition, sources can take enforceable limits on hours of operation in order to avoid triggering major NSR requirements that would otherwise apply to the source. Specifically, a source may voluntarily obtain a synthetic minor source limitation—i.e., a legally and practicably enforceable restriction that has the effect of limiting emissions below the relevant major source level—to avoid triggering major NSR requirements.

    Over the years, some stakeholders have expressed concerns that NSR regulations do not adequately allow for some sources to undertake changes to improve their operational efficiency without being “penalized” by having to get a major NSR permit. In the context of EGUs, stakeholders have asserted that heat rate improvement projects could result in greater unit availability and increase in dispatching, which under the NSR program might translate into projected increases in emissions that trigger major NSR permitting. Stakeholders have raised similar concerns regarding modifying an EGU facility to enable co-firing of natural gas or other lower-emitting fuels.

    The EPA received a number of similarly focused comments following proposal of the CPP. Specifically, commenters contended that, if an air agency, as part of its plan to comply with emission guidelines established pursuant to CAA section 111(d), requires a source to make modifications (e.g., heat rate improvement projects), it could potentially trigger major NSR requirements. Commenters added that the EPA has previously taken enforcement action against sources making such modifications without getting a major NSR permit.

    Since this ANPRM solicits input on a possible rule that is based on actions that could be implemented at the level of an individual source, we are again inviting comment from interested stakeholders on the topic of how the NSR program overlays with emission guidelines established under CAA section 111(d). We are interested in actions that can be taken to harmonize and streamline the NSR applicability and/or the NSR permitting process with a potential new rule. We invite comment on the following questions:

    1. Under what scenarios would EGUs be potentially subject to the requirements of the NSR program as a result of making physical or operational changes that are part of a strategy for regulating existing sources under CAA section 111(d)? Do the scenarios differ depending on site specific factors, such as the size or class of EGU, how the EGU operates (e.g., baseload, intermediate, load following), fuel(s) the EGU burns, or the EGU's existing level of pollution control? If so, please explain the differences.

    2. What rule or policy changes or flexibilities can the EPA provide as part of the NSR program that would enable EGUs to implement projects required under a CAA section 111(d) plan and not trigger major NSR permitting while maintaining environmental protections?

    3. What actions can sources take—e.g., through the minor NSR program, agreeing to a PAL—when making heat rate improvements or co-firing with a lower emitting fuel that would allow them to continue to serve the demand of the grid while not having excessive permitting requirements?

    4. What approaches could be used in crafting CAA section 111(d) plans so as to reduce the number of existing sources that will be subject to NSR permitting? Do compliance measures, such as inter- and intra-state trading systems, rate-based or mass-based standards, or generation shifting to lower- or zero-emitting units, offer favorable solutions for air agencies and sources with regard to NSR permitting?

    5. What other approaches would minimize the impact of the NSR program on the implementation of a performance standard for EGU sources under CAA section 111(d)?

    B. New Source Performance Standards (NSPS)

    The EPA solicits comment on whether there are any potential interactions between a state-based program under CAA section 111(d) covering existing fossil fuel-fired EGUs and a federal program under CAA section 111(b) covering newly constructed, reconstructed, and modified fossil fuel-fired EGUs. In particular, the EPA requests information on how an existing EGU covered under a CAA section 111(d) state plan might affect the state plan (or an interstate trading program) if the EGU undergoes a reconstruction or modification (as defined under CAA 111(b)).

    VI. Statutory and Executive Order Reviews

    Under Executive Order 12866, titled Regulatory Planning and Review (58 FR 51735, October 4, 1993), this is a “significant regulatory action.” Accordingly, the EPA submitted this action to the Office of Management and Budget (OMB) for review under Executive Order 12866 and any changes made in response to OMB recommendations have been documented in the docket for this action. Because this action does not propose or impose any requirements, and instead seeks comments and suggestions for the Agency to consider in possibly developing a subsequent proposed rule, the various statutes and Executive Orders that normally apply to rulemaking do not apply in this case. Should the EPA subsequently determine to pursue a rulemaking, the EPA will address the statutes and Executive Orders as applicable to that rulemaking.

    Dated: December 18, 2017. E. Scott Pruitt, Administrator.
    [FR Doc. 2017-27793 Filed 12-27-17; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Centers for Medicare & Medicaid Services 42 CFR Parts 405, 417, 422, 423, 460, and 498 [CMS-4182-CN] RIN 0938-AT08 Medicare Program Contract Year 2019 Policy and Technical Changes to the Medicare Advantage, Medicare Cost Plan, Medicare Fee-For-Service, the Medicare Prescription Drug Benefit Programs, and the PACE Program; Correction AGENCY:

    Centers for Medicare & Medicaid Services (CMS), HHS.

    ACTION:

    Proposed rule; correction.

    SUMMARY:

    This document corrects technical and typographical errors in the proposed rule that appeared in the November 28, 2017 issue of the Federal Register titled “Medicare Program Contract Year 2019 Policy and Technical Changes to the Medicare Advantage, Medicare Cost Plan, Medicare Fee-For-Service, the Medicare Prescription Drug Benefit Programs, and the PACE Program”.

    FOR FURTHER INFORMATION CONTACT:

    Marie Manteuffel, (410) 786-3447. Lucia Patrone, (410) 786-8621.

    SUPPLEMENTARY INFORMATION:

    I. Background

    In FR Doc. 2017-25068 of November 28, 2017 (82 FR 56336), there were a number of technical and typographical errors that are identified and corrected in the Correction of Errors section of this correcting document.

    II. Summary of Errors A. Summary of Errors in the Preamble

    On page 56366, in the listing of parts of the Code of Federal Regulations (CFR) that are being revised by the proposed rule, we inadvertently omitted 42 CFR part 460.

    On page 56488, in our discussion of reducing the burden of the medical loss ratio (MLR) reporting requirements, we made errors in our description of the tasks performed by our contractor during the initial analyses or desk reviews of MLR reports and the entities for which they perform these tasks (that is, MA organizations and Part D sponsors, not just MA organizations).

    B. Summary of Errors in the Regulations Text

    On pages 56498 and 56516, in the proposed regulations text for the calculation of the Part D improvement scores (§§ 422.164(f)(4)(vi) and 423.184(f)(4)(vi), respectively), we made errors in referencing the proposed provision for the clustering algorithm.

    On page 56509, in the regulations text changes for § 423.120(b)(5)(i)(A) and (B), we made technical errors in the timeframes regarding notice of formulary changes and supply of the Part D drug.

    On page 56510, we inadvertently omitted regulations text changes for § 423.128(a)(3) that we discussed in section II.B.4. of the proposed rule (see 82 FR 56432). These proposed changes would require MA plans and Part D Sponsors to provide the information in § 423.128(b) by the first day of the annual enrollment period.

    III. Correction of Errors

    In FR Doc. 2017-25068 of November 28, 2017 (82 FR 56336), we are making the following corrections:

    A. Corrections of Errors in the Preamble

    1. On page 56366, first column, line 6 (part heading), the phrase “423, and” is corrected to read “423, 460, and”.

    2. On page 56488, first column, third full paragraph, the paragraph that begins with the phrase “Our proposal to significantly reduce the amount” and ends with the phrase “in order to resolve potential compliance issues.” is corrected to read as follows:

    “Our proposal to significantly reduce the amount of MLR data submitted to CMS would eliminate the need for CMS to continue to pay a contractor approximately $390,000 a year to perform initial analyses or desk reviews of the detailed MLR reports submitted by MA organizations and Part D sponsors. These initial analyses or desk reviews are done by our contractors in order to identify omissions and suspected inaccuracies and to communicate their findings to MA organizations and Part D sponsors in order to resolve potential compliance issues.”

    B. Correction of Errors in the Regulations Text
    § 422.164 [Corrected]
    1. On page 56498, third column, in § 422.164(f)(4)(vi), lines 4 through 6, the reference “§§ 422.166(a)(2)(ii) through (iv) and 423.186(a)(2)(ii) through (iv)” is corrected to read, “§§ 422.166(a)(2)(iii) and 423.186(a)(2)(iii)”.
    § 423.120 [Corrected]
    2. On page 56509, first column— a. Sixth paragraph, amendatory instruction 62e is corrected to read “e. In paragraph (b)(5)(i)(A), by removing the phrase “60 days” and adding in its place the phrase “30 days”;”. b. Eighth paragraph, amendatory instruction 62f is corrected to read “f. In paragraph (b)(5)(i)(B), by removing the phrase “60 day supply” and adding in its place the phrase “month's supply”;”.
    § 423.128 [Corrected]
    3. On page 56510, second column— a. Third full paragraph, amendatory instruction 63 is corrected to read “63. Section 423.128 is amended by revising paragraphs (a)(3) and (d)(2)(iii) to reads as follows:”. b. Following the third full paragraph, § 423.128, the text is corrected by adding the following text after the section heading and before line 1 (5 stars) to read as follows:

    ” (a) * * *

    (3) At the time of enrollment and at least annually thereafter, by the first day of the annual coordinated election period.”

    § 423.184 [Corrected]
    4. On page 56516, third column, in § 423.184(f)(4)(vi), line 4, the reference “§ 423.186(a)(2)(ii)” is corrected to read “§ 423.186(a)(2)(iii)”. Dated: December 19, 2017. Ann C. Agnew, Executive Secretary to the Department, Department of Health and Human Services.
    [FR Doc. 2017-27943 Filed 12-27-17; 8:45 am] BILLING CODE 4120-01-P
    FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 63 [WC Docket No. 17-84; FCC 17-154] Accelerating Wireline Broadband Deployment by Removing Barriers to Infrastructure Investment AGENCY:

    Federal Communications Commission.

    ACTION:

    Proposed rule.

    SUMMARY:

    In this document, a Further Notice of Proposed Rulemaking (FNPRM) seeks comment on a number of actions aimed at removing unnecessary regulatory barriers to the deployment of high-speed broadband networks. The FNPRM seeks comment on pole attachment reforms, changes to the copper retirement and other network change notification processes, and changes to the section 214(a) discontinuance application process. The Commission adopted the FNPRM in conjunction with a Report and Order and Declaratory Ruling in WC Docket No. 17-84.

    DATES:

    Comments are due on or before January 17, 2018, and reply comments are due on or before February 16, 2018. Written comments on the Paperwork Reduction Act proposed information collection requirements must be submitted by the public, Office of Management and Budget (OMB), and other interested parties on or before February 26, 2018.

    ADDRESSES:

    You may submit comments, identified by WC Docket No. 17-84, by any of the following methods:

    Federal Communications Commission's website: http://apps.fcc.gov/ecfs/. Follow the instructions for submitting comments.

    Mail: Parties who choose to file by paper must file an original and one copy of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission. All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW, Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of before entering the building. Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9050 Junction Drive, Annapolis Junction, MD 20701. U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW, Washington, DC 20554.

    People with Disabilities: To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to [email protected] or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).

    For detailed instructions for submitting comments and additional information on the rulemaking process, see the SUPPLEMENTARY INFORMATION section of this document. In addition to filing comments with the Secretary, a copy of any comments on the Paperwork Reduction Act information collection requirements contained herein should be submitted to the Federal Communications Commission via email to [email protected] and to Nicole Ongele, Federal Communications Commission, via email to [email protected]

    FOR FURTHER INFORMATION CONTACT:

    Wireline Competition Bureau, Competition Policy Division, Michele Berlove, at (202) 418-1477, [email protected], or Michael Ray, at (202) 418-0357, [email protected] For additional information concerning the Paperwork Reduction Act information collection requirements contained in this document, send an email to [email protected] or contact Nicole Ongele at (202) 418-2991.

    SUPPLEMENTARY INFORMATION:

    This is a summary of the Commission's Further Notice of Proposed Rulemaking (FNPRM) in WC Docket No. 17-84, adopted November 16, 2017 and released November 29, 2017. The full text of this document is available for public inspection during regular business hours in the FCC Reference Information Center, Portals II, 445 12th Street SW, Room CY-A257, Washington, DC 20554. It is available on the Commission's website at https://apps.fcc.gov/edocs_public/Query.do?numberFld=17-154&numberFld2=&docket=&dateFld=&docTitleDesc=. Pursuant to sections 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS). See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998), http://www.fcc.gov/Bureaus/OGC/Orders/1998/fcc98056.pdf.

    Electronic Filers: Comments may be filed electronically using the internet by accessing the ECFS: https://www.fcc.gov/ecfs/.

    Paper Filers: Parties who choose to file by paper must file an original and one copy of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission. All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW, Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber or fasteners. Any envelopes and boxes must be disposed of before entering the building. Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9050 Junction Drive, Annapolis Junction, MD 20701. U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW, Washington, DC 20554.

    People with Disabilities: To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to [email protected] or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).

    Synopsis I. Introduction

    1. Access to high-speed broadband is an essential component of modern life, providing unfettered access to information and entertainment, an open channel of communication to far-away friends and relatives, and unprecedented economic opportunity. Technological innovation and private investment have revolutionized American communications networks in recent years, making possible new and better service offerings, and bringing the promise of the digital revolution to more Americans than ever before. As part of this transformation, consumers are increasingly moving away from traditional telephone services provided over copper wires and towards next-generation technologies using a variety of transmission means, including copper, fiber, and wireless spectrum-based services.

    2. Despite this progress, too many communities remain on the wrong side of the digital divide, unable to take full part in the benefits of the modern information economy. To close that digital divide, we seek to use every tool available to us to accelerate the deployment of advanced communications networks. Accordingly, today we embrace the transition to next-generation networks and the innovative services they enable, and adopt a number of important reforms aimed at removing unnecessary regulatory barriers to the deployment of high-speed broadband networks.

    3. By removing unnecessary impediments to broadband deployment, the regulatory reforms we adopt today will enable carriers to more rapidly shift resources away from maintaining outdated legacy infrastructure and services and towards the construction of next-generation broadband networks bringing innovative new broadband services. And by reducing the costs to deploy high-speed broadband networks, we make it more economically feasible for carriers to extend the reach of their networks, increasing competition among broadband providers to communities across the country. We expect competition will include such benefits as lower prices to consumers. We anticipate taking additional action in the future in this proceeding to further facilitate broadband deployment.

    A. Expediting Applications That Grandfather Additional Data Services for Existing Customers

    4. We propose to streamline the approval process for applications seeking to grandfather data services with download/upload speeds of less than 25 Mbps/3 Mbps, so long as the applying carrier provides data services of equivalent quality at speeds of at least 25 Mbps/3 Mbps or higher throughout the affected service area. We acknowledge that data services subject to section 214 discontinuance authority typically have symmetrical upload and download speeds. Proposing non-symmetrical speed thresholds for streamlining purposes, however, provides maximum flexibility for carriers to the extent legacy data services having non-symmetrical download and upload speeds are subject to our discontinuance rules. We currently use 25 Mbps/3 Mbps as the speed benchmark for evaluating deployment of fixed advanced telecommunications capability, meaning a service that “enables users to originate and receive high quality voice, data, graphics, and video telecommunications” under section 706 of the Telecommunications Act of 1996. As such, we think that comparatively lower speed services are ripe for streamlined treatment when higher speed services are available. In the Wireline Infrastructure notice of proposed rulemaking, the Commission proposed to apply any streamlined discontinuance process to grandfathered low-speed legacy services below 1.544 Mbps, but sought comment on whether we should make streamlined processing available for applications to grandfather services at higher speeds, such as TDM services below 10Mbps or 25 Mbps. We seek comment on this proposal.

    5. We propose a uniform reduced public comment period of 10 days and an auto-grant period of 25 days for all carriers submitting such applications. Under this proposal, such services must be grandfathered for a period of no less than 180 days before a carrier may submit an application to the Commission seeking authorization to discontinue such services. Through these proposed reforms, we seek to provide carriers with incentives to develop and deploy higher quality services operating at higher speeds. We seek comment on this proposal. We also seek comment on possible alternatives, including different speed thresholds and different time intervals.

    6. Will streamlining the approval process for this class of applications promote competition in the market for higher-speed data services? Will it help speed the ongoing technology transition to next-generation IP-based services and networks, and encourage the deployment of better quality, higher-speed services? What are this proposal's benefits and costs?

    7. Additionally, we seek comment on whether applications to discontinue these higher-speed data services after they have been grandfathered for a period of at least 180 days should be granted the same streamlined comment and auto-grant periods that we have adopted for previously grandfathered legacy data services in the above Order. Should applications to discontinue higher-speed already-grandfathered services be subject to a 10-day comment period and a 31-day auto-grant period upon inclusion of a certification that the carrier has received Commission authority to grandfather the services at issue at least 180 days prior to the filing of the discontinuance application?

    B. Utility Treatment of Overlashing

    8. For decades, the Commission has maintained a policy of encouraging the use of overlashing to maximize the useable space on utility poles. In 1995, the Commission “noted the serious anti-competitive effects of preventing cable operators from adding fiber to their systems by overlashing” and “affirmed its commitment to ensure that the growth and development of cable system facilities are not hindered by an unreasonable denial of overlashing by a utility pole owner.” In 1998, the Commission reaffirmed that overlashing “facilitates and expedites installing infrastructure,” “promotes competition,” and “is an important element in promoting . . . diversity of services over existing facilities, fostering the availability of telecommunications services to communities, and increasing opportunities for competition in the marketplace.” It further noted that “any concerns [with overlashing] should be satisfied by compliance with generally accepted engineering practices.” In 2001, the Commission again reaffirmed that overlashing “reduces construction disruption and associated expenses which would otherwise be incurred by third parties installing new poles and separate attachments” and reaffirmed its holding that “neither the host attaching entity nor the third party overlasher must obtain additional approval from or consent of the utility for overlashing other than the approval obtained for the host attachment.” The Commission's holdings on overlashing were upheld by the D.C. Circuit and remain in effect today.

    9. Nonetheless, some parties have claimed that not all utilities are complying with these holdings. ACA states that “some utilities require, or seek to require, additional prior approvals for overlashing projects.” Others have asked for the agency to make clear that “an attacher shall not be required to obtain approval from or provide advance notice to a pole owner before overlashing additional wires, cables, or equipment to its own facilities. The attacher shall inform the pole owner of the location and type of any facilities that have been overlashed.”

    10. We seek comment on codifying our longstanding precedent regarding overlashing. Specifically, we seek comment on codifying a rule that overlashing is subject to a notice-and-attach process and that any concerns with overlashing should be satisfied by compliance with generally accepted engineering practices. Although one commenter asserts that “overlashing must be subject to utility review through the applications process” because of potential safety concerns and another asserts that “Each Utility Needs to Retain the Right to Determine What Level of Review is Required,” neither offers a reason for us to disturb our long-held precedent and we see no reason to reopen that precedent here. Would codifying such a rule make clear the rights of overlashers? Would doing so reduce any confusion that may delay attachers from deploying next-generation services to unserved communities? Would codifying such a rule be consistent with our long-held view that overlashing has substantial competitive effects, ultimately leading to greater deployment and lower prices for consumers?

    C. Calculation of Waiting Period Under Section 51.333(B)

    11. AT&T proposes that we revise the rule governing short-term network change notices to calculate the effective date of such notices from the date the incumbent LEC files its notice or certification of the change rather than from the date the Commission releases its public notice. We seek comment on this proposal. Section 51.333(b) of the Commission's rules provides that the network change referenced in a short-term notice “shall be deemed final on the tenth business day after the release of the Commission's public notice.” According to AT&T, tying the effective date to release of the Commission's public notice is unnecessary because incumbent LECs are required to provide direct notice to interconnecting carriers. Is AT&T correct? We seek comment on the benefits and burdens of revising the rule as AT&T suggests.

    12. In connection with copper retirement notices, we found in the Order above that “having the waiting period run from the date we release a public notice of the filing, as has been the case for more than two decades, affords Commission staff the necessary opportunity to review filings for mistakes and/or non-compliance with the rules.” Are circumstances different for short-term network change notices than for copper retirement notices? Is there any reason Commission staff might not need the opportunity to review short-term network change notices for accuracy or completeness before the waiting period under the rule should begin to run? Are there other benefits associated with having the waiting period run from the time the Commission releases its public notice rather than from the date the incumbent LEC files its notice or certification with the Commission? Will altering the calculation of the waiting period in such a way help speed the ongoing technology transition to next-generation IP-based services and networks? Are there other advantages or disadvantages to calculating the waiting period in this manner? How would calculating the waiting period in this manner affect the deadline for objecting to a network change disclosure? Are there other issues we should consider in conjunction with considering this proposal?

    D. Public Notice of Network Changes Affecting Interoperability of Customer Premises Equipment

    13. AT&T also proposes that we eliminate the requirement that incumbent LECs provide public notice of network changes affecting the interoperability of customer premises equipment. We seek comment on this proposal. Section 51.325(a)(3) requires that incumbent LECs provide notice pursuant to the Commission's network change disclosure rules of any changes to their networks that “will affect the manner in which customer premises equipment is attached to the interstate network.” AT&T asserts that this rule is no longer necessary because incumbent LECs “do not have a significant presence in the market for manufacturing CPE . . . CPE manufacturers move at lightning speed to adapt to new technologies,” and “incumbent LECs no longer “possess the market power that would enable them to adversely affect the CPE marketplace.” We seek comment on the benefits and costs of the current rule and whether the benefits outweigh the costs. Does section 51.325(a)(3) continue to afford relevant protections in the current marketplace? How frequently do incumbent LECs provide public notice of such network changes? Do interconnecting carriers rely on public notice of such network changes? Will eliminating the requirement that incumbent LECs provide public notice of network changes affecting the interoperability of customer premises equipment help speed the ongoing technology transition to next-generation IP-based services and networks?

    14. We seek comment on the intersection of section 51.325(a)(3) with other rules and how that intersection should influence our approach here. In the Notice, the Commission sought comment on eliminating section 68.110(b), which requires that “[i]f . . . changes [to a wireline telecommunications provider's communications facilities, equipment, operations or procedures] can be reasonably expected to render any customer's terminal equipment incompatible with the communications facilities of the provider of wireline telecommunications, or require modification or alteration of such terminal equipment, or otherwise materially affect its use or performance, the customer shall be given adequate notice in writing, to allow the customer an opportunity to maintain uninterrupted service.” AT&T makes similar assertions in support of its arguments in favor of eliminating both sections 51.325(a)(3) and 68.110(b). Unlike section 51.325(a)(3), which applies only to incumbent LECs, section 68.110(b) applies to all carriers. Do sections 51.325(a)(3) and 68.110(b) impose similar burdens on carriers or afford similar benefits to customers? Is there any reason to treat the two rules differently? Should we modify rather than eliminate or retain either section 51.325(a)(3) or 68.110(b)?

    E. Applying Streamlined Notice Procedures for Force Majeure Events to All Network Changes

    15. We seek comment on extending the streamlined notice procedures applicable to force majeure and other unforeseen events adopted in today's Order for copper retirements to all types of network changes. The notice of proposed rulemaking sought comment on removing the copper retirement notice requirements in emergency situations. It did not, however, ask about removing the notice requirements applicable to network changes other than copper retirements. We seek comment on whether the same benefits to be gained from the streamlined procedures adopted in the copper retirement context similarly apply to other types of network changes. The waiver orders discussed above are general in nature. We seek comment on whether all incumbent LECs should have the same access to the relief afforded by these waiver orders in all situations, not just when copper retirements are implicated.

    F. Forbearance From Section 214(a) Discontinuance Requirements for Services With No Existing Customers

    16. CenturyLink and AT&T propose that we forbear from applying the section 214(a) discontinuance requirements when carriers seek to discontinue, reduce, or impair services with no existing customers. We seek comment on this proposal and whether we should, on our own motion, grant this forbearance. We specifically seek comment on forbearing from section 214(a) and our part 63 implementing rules when carriers seek to discontinue, reduce, or impair services with no existing customers. We seek comment on whether such action would satisfy the criteria for granting forbearance. Is maintaining the requirement to obtain discontinuance authorization in such cases necessary to protect consumers or other stakeholders? Can enforcement of section 214(a)'s requirements be necessary for the protection of consumers when there are no affected customers? Is enforcement of these requirements where there are no affected customers necessary to ensure that the charges and practices of carriers are not unjustly or unreasonably discriminatory? Is forbearance from section 214(a)'s requirements in this context otherwise consistent with the public interest? We anticipate that because the services in question lack customers, applying the section 214(a) discontinuance requirement here is not necessary to ensure just charges or protect consumers, and we seek comment on this view. Is forbearance in this context consistent with the public interest? In this regard, will forbearing from applying section 214(a)'s discontinuance requirements in the context of services without existing customers help speed the ongoing technology transition to next-generation IP-based services and networks?

    17. Alternatively, should we further streamline the discontinuance process for “no customer” applications, generally? In the Order, we substantially streamline the discontinuance process for “no customer” applications for legacy voice and data services below 1.544 Mbps. Specifically, we reduce the auto-grant period from 31 days to 15 days and reduce the timeframe within which a carrier must not have had any customers or request for service from 180 days to 30 days. Should we adopt these same streamlined rules for all “no customer” discontinuance applications or some larger subset than just the legacy services below 1.544 Mbps that the record currently supports?

    18. We note that under our current rules, there is no deadline for filing comments in response to an application to discontinue, reduce, or impair services with no existing customers. We seek comment on whether we should establish a set comment period for such applications in the unlikely event that any party may wish to comment on requests to discontinue, reduce, or impair services with no existing customers. How long should any such comment period be? Should we apply a uniform period of public comment to applications from both dominant and non-dominant carriers, or should each type of provider be subject to a different comment period?

    G. Further Streamlining of the Section 214(a) Discontinuance Process for Legacy Voice Services

    19. Several commenters propose that we further streamline the section 214(a) discontinuance process for legacy voice services. We seek comment on what further steps we can take to streamline the section 214(a) discontinuance process for legacy voice services. In particular, we seek comment on Verizon's proposal that the Commission streamline processing of section 214(a) discontinuance applications for legacy voice services where a carrier certifies: (1) That it provides interconnected VoIP service throughout the affected service area; and (2) that at least one other alternative voice service is available in the affected service area. As Verizon notes, this approach provides an alternative to forbearance from section 214(a) discontinuance requirements for legacy voice services. Verizon asserts that adoption of this streamlined test “would compel carriers to maintain legacy services only in those rare instances . . . where their absence would cut consumers off from the nation's telephone network” and would “free[] carriers to focus on rolling out and improving the next-generation technologies their customers demand.”

    20. We seek comment on the benefits and burdens of streamlining section 214(a) discontinuances for legacy voice services and on the benefits and burdens of Verizon's specific recommendation. Would such rule changes reduce unnecessary costs and burdens associated with the deployment of next-generation services and thereby spur broadband such deployment? Would such changes help speed the ongoing technology transition to next-generation IP-based services and networks?

    21. As to Verizon's proposal, would the information sought under this kind of two-part test be sufficient to allow the Commission to certify that the “public convenience and necessity” would not be adversely affected by the proposed discontinuance, as section 214(a) requires? If not, what information should be required? If we were to adopt this approach, what would be the best means to implement this type of test? What type of showing would a carrier be required to make under each prong? Would a simple certification be sufficient, or should some other evidence of available alternatives be required? What types of voice services should be considered as sufficient alternatives to legacy TDM-based voice service that would satisfy the second prong? Are there specific characteristics that a voice service should be required to have in order to satisfy the second prong? Finally, we seek comment on any alternative approaches to streamlining the section 214(a) discontinuance process for legacy voice services.

    22. Alternatively, Verizon requests that we forbear from applying section 214(a)'s discontinuance requirements to carriers seeking to transition from legacy voice services to next-generation replacement services. CenturyLink and WTA similarly request that we eliminate the requirement to file a section 214(a) application altogether for any discontinuance that is part of a network upgrade. We seek comment on these proposals and whether we should, on our own motion, grant forbearance when carriers upgrade their networks and simultaneously transition the services provided over those networks to next-generation technology, e.g., TDM to IP. We specifically seek comment on forbearing from both section 214(a)'s discontinuance requirements and our part 63 implementing rules. We seek comment on whether such action would satisfy the criteria for granting forbearance. Is enforcement of our discontinuance requirements under section 214(a) and part 63 of our implementing rules in cases where carriers seek to transition from legacy services to next-generation services not necessary to ensure that the charges and practices of carriers are not unjustly or unreasonably discriminatory? Is enforcement of these discontinuance requirements necessary to ensure consumer protection during the ongoing technology transition to next-generation networks and services? Will forbearing from applying our discontinuance requirements under section 214(a) and part 63 of our implementing rules in this context be consistent with the public interest? Will forbearance in this context help speed the ongoing technology transition to next-generation IP-based services and networks? Is forbearance even necessary in light of the actions we take today in the Order to revise our section 214(a) discontinuance rules?

    23. Verizon asserts that current market dynamics demonstrate that next-generation voice services are readily available, as evidenced by a decisive shift by consumers away from legacy voice services, and towards competing fiber, IP-based and wireless alternatives. In such a competitive environment, Verizon asserts that “freeing providers from Section 214(a) in this market will promote competition among those providers on the merits of their next-generation services” and that therefore “forbearance [from the section 214(a) discontinuance process] is in the public interest” where providers seek to replace legacy services with next-generation alternatives. We seek comment on these assertions and on the benefits and burdens associated with forbearing from section 214(a)'s discontinuance requirements when carriers seek to replace legacy voice services with next-generation services. How would forbearance from these rules affect competitive market conditions for telecommunications services? Would forbearance from our section 214(a) discontinuance requirements in circumstances where carriers seek to replace legacy voice services with next-generation alternatives better incentivize the deployment of high-speed broadband than the streamlining proposals discussed above? Why or why not?

    H. Eliminating Outreach Requirements Adopted in the 2016 Technology Transitions Order

    24. ITTA proposes that we eliminate the outreach requirements adopted in the 2016 Technology Transitions Order. We seek comment on this proposal. These requirements mandate that carriers offer an adequate outreach plan when discontinuing legacy retail services. These requirements apply to transitioning wireline TDM-based voice service to a voice service using a different technology such as internet Protocol (IP) or wireless. The requirements further specify that an adequate outreach plan must, at a minimum, involve: “(i) The development and dissemination of educational materials provided to all customers affected containing specific information pertinent to the transition, as specified in detail below; (ii) the creation of a telephone hotline and the option to create an additional interactive and accessible service to answer questions regarding the transition; and (iii) appropriate training of staff to field and answer consumer questions about the transition.” We seek comment on the benefits and burdens of these requirements.

    25. ITTA asserts that these requirements are “unduly burdensome and prescriptive,” in addition to being unnecessary, because our preexisting discontinuance notice process already provides “affected customers and other stakeholders with adequate information of what is to occur and what steps they may need to take.” ITTA further asserts that regardless of any notice requirements maintained by the Commission, carriers “would continue to have incentives due to marketplace forces to communicate with customers in connection with technology transitions when customers are impacted by such changes.” We seek comment on ITTA's assertions. Are the burdens imposed by these outreach requirements adopted in the 2016 Technology Transitions Order unduly burdensome such that they should be eliminated or revised? Or do those requirements afford necessary protections to affected consumers of legacy services? Should we modify those requirements rather than retain or eliminate them, and if so how? Will eliminating or modifying these requirements help speed the ongoing technology transition to next-generation IP-based services and networks?

    I. Rebuilding and Repairing Broadband Infrastructure After Natural Disasters

    26. We are committed to helping communities rebuild damaged or destroyed communications infrastructure after a natural disaster as quickly as possible. We recognize the important and complementary roles that local, state, and federal authorities play in facilitating swift recovery from disasters such as Hurricanes Harvey, Irma, and Maria. We are concerned that unnecessarily burdensome government regulation may hinder rather than help recovery efforts, and laws that are suited for the ordinary course may not be appropriate for disaster recovery situations. We seek comment on whether there are targeted circumstances in which we can and should use our authority to preempt state or local laws that inhibit restoration of communications infrastructure.

    27. We emphasize that we appreciate the importance of working cooperatively with state and local authorities. How can we ensure that any preemptive action we take helps rather than inhibits state and local efforts? More generally, how can we best work with state and local regulators to get broadband infrastructure operational after a natural disaster? We seek comment on our legal authority to preempt state and local laws in this context, including our authority under sections 253 and 332(c)(7) of the Act and section 6409 of the Spectrum Act. If we should preempt certain state or local laws, should we do so by rule or by adjudication? Should we limit the scope of any preemption in this context only to periods in which a community is recovering from a natural disaster, and if so how should we delimit that timeframe?

    II. Initial Regulatory Flexibility Analysis

    28. As required by the Regulatory Flexibility Act (RFA), the Commission has prepared this present Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on small entities by the policies on which the Commission seeks comment in this FNPRM of Proposed Rule Making (FNPRM). Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments provided in paragraph 133 of this Notice. The Commission will send a copy of this FNPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA). In addition, the FNPRM and IRFA (or summaries thereof) will be published in the Federal Register.

    A. Need for, and Objectives of, the Proposed Rules

    29. The FNPRM proposes to adopt streamlined treatment for all carriers seeking to grandfather data services with download/upload speeds of less than 25 Mbps/3 Mbps, so long as the applying carrier provides data services of equivalent quality at speeds of at least 25 Mbps/3 Mbps or higher throughout the affected service area. It proposes to adopt a uniform reduced public comment period of 10 days and an auto-grant period of 25 days, and require that such services be grandfathered for a period of no less than 180 days before a carrier may submit an application to the Commission seeking authorization to discontinue such services. The FNPRM also seeks comment on whether applications to discontinue higher-speed grandfathered data services should be subject to a streamlined 10-day comment period and a 31-day auto-grant period upon inclusion of a certification that the carrier has received Commission authorization to grandfather the services at issue at least 180 days prior to the filing of the discontinuance application. The FNPRM also seeks comment on the appropriate utility treatment of requests by attachers to: (1) Overlash new wires and cables onto existing wires and cables already on a utility pole; or (2) connect service from an attacher's facilities on an existing utility pole directly to a customer location (also known as a drop). The FNPRM asks whether the Commission should codify or better explain its policies with regard to this type of pole work in order to spur broadband deployment. The FNPRM also seeks comment on a variety of recommendations for additional reforms to the Commission's network change disclosure rules and the section 214(a) discontinuance authorization process. First, the FNPRM seeks comment on a proposal to revise the rule governing short-term network change notices to calculate the effective date of such notices from the date the incumbent LEC files its notice or certification of the change rather than from the date the Commission releases its public notice. Second, the FNPRM seeks comment on a proposal to eliminate the requirement that incumbent LECs provide public notice of network changes affecting the interoperability of customer premises equipment. Third, the FNPRM seeks comment on extending the streamlined notice procedures applicable to force majeure and other unforeseen events adopted in today's Order for copper retirements to all types of network changes. Fourth, the FNPRM seeks comment on whether we should forbear from requiring compliance with the discontinuance requirements of section 214(a) in all instances where a carrier seeks to discontinue, reduce, or impair services with no existing customers. Alternatively, the FNPRM seeks comment on whether we should further streamline the discontinuance process for all “no customer” applications, regardless of the speed of the services being discontinued. Fifth, the FNPRM seeks comment on ways to further streamline the section 214(a) discontinuance process for legacy voice services. In particular, we seek comment on Verizon's proposal that the Commission streamline processing of section 214(a) discontinuance applications for legacy voice services where a carrier certifies: (1) That it provides interconnected VoIP service throughout the affected service area; and (2) that at least one other alternative voice service is available in the affected service area. We also seek comment on Verizon's request that we forbear from applying section 214(a)'s discontinuance requirements to carriers seeking to transition from legacy voice services to next-generation replacement services. Sixth, the FNPRM seeks comment on whether we should eliminate the outreach requirements adopted by the Commission in the 2016 Technology Transitions Order. Lastly, in light of the important and complementary roles that local, state, and federal authorities play in facilitating swift recovery from disasters such as Hurricanes Harvey, Irma, and Maria, we seek comment on whether there are targeted circumstances in which we can and should use our authority to preempt state or local laws that inhibit restoration of communications infrastructure.

    B. Legal Basis

    30. The proposed action is authorized under sections 1-4, 201, 202, 214, 224, 251, and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 151-54, 201, 202, 214, 224, 251, and 303(r).

    C. Description and Estimate of the Number of Small Entities To Which the Proposed Rules Will Apply

    31. The RFA directs agencies to provide a description and, where feasible, an estimate of the number of small entities that may be affected by the proposals on which the FNPRM seeks comment, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small-business concern” under the Small Business Act. A “small-business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA.

    32. The majority of the proposals on which we seek comment in the FNPRM will affect obligations on incumbent LECs and, in some cases, competitive LECs, and telecommunications carriers. Our actions, over time, may affect small entities that are not easily categorized at present. Other entities, however, that choose to object to network change notifications for copper retirement under the proposals on which we seek comment and section 214 discontinuance applications may be economically impacted by the proposals in this FNPRM.

    33. Small Businesses, Small Organizations, Small Governmental Jurisdictions. Our actions, over time, may affect small entities that are not easily categorized at present. We therefore describe here, at the outset, three comprehensive small entity size standards that could be directly affected herein. First, while there are industry specific size standards for small businesses that are used in the regulatory flexibility analysis, according to data from the SBA's Office of Advocacy, in general a small business is an independent business having fewer than 500 employees. These types of small businesses represent 99.9% of all businesses in the United States which translates to 28.8 million businesses.

    34. Next, the type of small entity described as a “small organization” is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” Nationwide, as of Aug 2016, there were approximately 356,494 small organizations based on registration and tax data filed by nonprofits with the Internal Revenue Service (IRS).

    35. Finally, the small entity described as a “small governmental jurisdiction” is defined generally as “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” U.S. Census Bureau data from the 2012 Census of Governments indicates that there were 90,056 local governmental jurisdictions consisting of general purpose governments and special purpose governments in the United States. Of this number there were 37,132 General purpose governments (county, municipal and town or township) with populations of less than 50,000 and 12,184 Special purpose governments (independent school districts and special districts) with populations of less than 50,000. The 2012 U.S. Census Bureau data for most types of governments in the local government category shows that the majority of these governments have populations of less than 50,000. Based on this data we estimate that at least 49,316 local government jurisdictions fall in the category of “small governmental jurisdictions.”

    36. Wired Telecommunications Carriers. The U.S. Census Bureau defines this industry as “establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired communications networks. Transmission facilities may be based on a single technology or a combination of technologies. Establishments in this industry use the wired telecommunications network facilities that they operate to provide a variety of services, such as wired telephony services, including VoIP services, wired (cable) audio and video programming distribution, and wired broadband internet services. By exception, establishments providing satellite television distribution services using facilities and infrastructure that they operate are included in this industry.” The SBA has developed a small business size standard for Wired Telecommunications Carriers, which consists of all such companies having 1,500 or fewer employees. Census data for 2012 shows that there were 3,117 firms that operated that year. Of this total, 3,083 operated with fewer than 1,000 employees. Thus, under this size standard, the majority of firms in this industry can be considered small.

    37. Local Exchange Carriers (LECs). Neither the Commission nor the SBA has developed a size standard for small businesses specifically applicable to local exchange services. The closest applicable NAICS Code category is for Wired Telecommunications Carriers, as defined in paragraph 36 of this IRFA. Under that size standard, such a business is small if it has 1,500 or fewer employees. Census data for 2012 show that there were 3,117 firms that operated that year. Of this total, 3,083 operated with fewer than 1,000 employees. The Commission therefore estimates that most providers of local exchange carrier service are small entities that may be affected by the rules adopted.

    38. Incumbent Local Exchange Carriers (incumbent LECs). Neither the Commission nor the SBA has developed a small business size standard specifically for incumbent local exchange services. The closest applicable NAICS Code category is Wired Telecommunications Carriers as defined in paragraph 36 of this IRFA. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 3,117 firms operated in that year. Of this total, 3,083 operated with fewer than 1,000 employees. Consequently, the Commission estimates that most providers of incumbent local exchange service are small businesses that may be affected by the rules and policies adopted. One thousand three hundred and seven (1,307) Incumbent Local Exchange Carriers reported that they were incumbent local exchange service providers. Of this total, an estimated 1,006 have 1,500 or fewer employees.

    39. Competitive Local Exchange Carriers (competitive LECs), Competitive Access Providers (CAPs), Shared-Tenant Service Providers, and Other Local Service Providers. Neither the Commission nor the SBA has developed a small business size standard specifically for these service providers. The appropriate NAICS Code category is Wired Telecommunications Carriers, as defined in paragraph 36 of this IRFA. Under that size standard, such a business is small if it has 1,500 or fewer employees. U.S. Census data for 2012 indicate that 3,117 firms operated during that year. Of that number, 3,083 operated with fewer than 1,000 employees. Based on this data, the Commission concludes that the majority of Competitive LECs, CAPs, Shared-Tenant Service Providers, and Other Local Service Providers are small entities. According to Commission data, 1,442 carriers reported that they were engaged in the provision of either competitive local exchange services or competitive access provider services. Of these 1,442 carriers, an estimated 1,256 have 1,500 or fewer employees. In addition, 17 carriers have reported that they are Shared-Tenant Service Providers, and all 17 are estimated to have 1,500 or fewer employees. In addition, 72 carriers have reported that they are Other Local Service Providers. Of this total, 70 have 1,500 or fewer employees. Consequently, the Commission estimates that most providers of competitive local exchange service, competitive access providers, Shared-Tenant Service Providers, and Other Local Service Providers are small entities that may be affected by the adopted rules.

    40. Interexchange Carriers (IXCs). Neither the Commission nor the SBA has developed a definition for Interexchange Carriers. The closest NAICS Code category is Wired Telecommunications Carriers as defined in paragraph 36 of this IRFA. The applicable size standard under SBA rules is that such a business is small if it has 1,500 or fewer employees. According to Commission data, 359 companies reported that their primary telecommunications service activity was the provision of interexchange services. Of this total, an estimated 317 have 1,500 or fewer employees and 42 have more than 1,500 employees. Consequently, the Commission estimates that the majority of interexchange service providers are small entities that may be affected by rules adopted.

    41. Other Toll Carriers. Neither the Commission nor the SBA has developed a size standard for small businesses specifically applicable to Other Toll Carriers. This category includes toll carriers that do not fall within the categories of interexchange carriers, operator service providers, prepaid calling card providers, satellite service carriers, or toll resellers. The closest applicable NAICS Code category is for Wired Telecommunications Carriers, as defined in paragraph 36 of this IRFA. Under that size standard, such a business is small if it has 1,500 or fewer employees. Census data for 2012 shows that there were 3,117 firms that operated that year. Of this total, 3,083 operated with fewer than 1,000 employees. Thus, under this category and the associated small business size standard, the majority of Other Toll Carriers can be considered small. According to Commission data, 284 companies reported that their primary telecommunications service activity was the provision of other toll carriage. Of these, an estimated 279 have 1,500 or fewer employees. Consequently, the Commission estimates that most Other Toll Carriers that may be affected by our rules are small.

    42. Wireless Telecommunications Carriers (except Satellite). This industry comprises establishments engaged in operating and maintaining switching and transmission facilities to provide communications via the airwaves, such as cellular services, paging services, wireless internet access, and wireless video services. The appropriate size standard under SBA rules is that such a business is small if it has 1,500 or fewer employees. For this industry, Census data for 2012 show that there were 967 firms that operated for the entire year. Of this total, 955 firms had fewer than 1,000 employees. Thus under this category and the associated size standard, the Commission estimates that the majority of wireless telecommunications carriers (except satellite) are small entities. Similarly, according to internally developed Commission data, 413 carriers reported that they were engaged in the provision of wireless telephony, including cellular service, Personal Communications Service (PCS), and Specialized Mobile Radio (SMR) services. Of this total, an estimated 261 have 1,500 or fewer employees. Consequently, the Commission estimates that approximately half of these firms can be considered small. Thus, using available data, we estimate that the majority of wireless firms can be considered small.

    43. Cable Companies and Systems (Rate Regulation). The Commission has developed its own small business size standards for the purpose of cable rate regulation. Under the Commission's rules, a “small cable company” is one serving 400,000 or fewer subscribers nationwide. Industry data indicate that there are currently 4,600 active cable systems in the United States. Of this total, all but nine cable operators nationwide are small under the 400,000-subscriber size standard. In addition, under the Commission's rate regulation rules, a “small system” is a cable system serving 15,000 or fewer subscribers. Current Commission records show 4,600 cable systems nationwide. Of this total, 3,900 cable systems have fewer than 15,000 subscribers, and 700 systems have 15,000 or more subscribers, based on the same records. Thus, under this standard as well, we estimate that most cable systems are small entities.

    44. Cable System Operators (Telecom Act Standard). The Communications Act of 1934, as amended, also contains a size standard for small cable system operators, which is “a cable operator that, directly or through an affiliate, serves in the aggregate fewer than one percent of all subscribers in the United States and is not affiliated with any entity or entities whose gross annual revenues in the aggregate exceed $250,000,000 are approximately 52,403,705 cable video subscribers in the United States today. Accordingly, an operator serving fewer than 524,037 subscribers shall be deemed a small operator if its annual revenues, when combined with the total annual revenues of all its affiliates, do not exceed $250 million in the aggregate. Based on available data, we find that all but nine incumbent cable operators are small entities under this size standard. We note that the Commission neither requests nor collects information on whether cable system operators are affiliated with entities whose gross annual revenues exceed $250 million. Although it seems certain that some of these cable system operators are affiliated with entities whose gross annual revenues exceed $250,000,000, we are unable at this time to estimate with greater precision the number of cable system operators that would qualify as small cable operators under the definition in the Communications Act.

    45. All Other Telecommunications. “All Other Telecommunications” is defined as follows: “This U.S. industry is comprised of establishments that are primarily engaged in providing specialized telecommunications services, such as satellite tracking, communications telemetry, and radar station operation. This industry also includes establishments primarily engaged in providing satellite terminal stations and associated facilities connected with one or more terrestrial systems and capable of transmitting telecommunications to, and receiving telecommunications from, satellite systems. Establishments providing internet services or voice over internet protocol (VoIP) services via client supplied telecommunications connections are also included in this industry.” The SBA has developed a small business size standard for “All Other Telecommunications,” which consists of all such firms with gross annual receipts of $32.5 million or less. For this category, Census Bureau data for 2012 show that there were 1,442 firms that operated for the entire year. Of those firms, a total of 1,400 had annual receipts less than $25 million. Consequently, we conclude that the majority of All Other Telecommunications firms can be considered small.

    46. Electric Power Generation, Transmission and Distribution. The Census Bureau defines this category as follows: “This industry group comprises establishments primarily engaged in generating, transmitting, and/or distributing electric power. Establishments in this industry group may perform one or more of the following activities: (1) Operate generation facilities that produce electric energy; (2) operate transmission systems that convey the electricity from the generation facility to the distribution system; and (3) operate distribution systems that convey electric power received from the generation facility or the transmission system to the final consumer.” This category includes electric power distribution, hydroelectric power generation, fossil fuel power generation, nuclear electric power generation, solar power generation, and wind power generation. The SBA has developed a small business size standard for firms in this category based on the number of employees working in a given business. According to Census Bureau data for 2012, there were 1,742 firms in this category that operated for the entire year.

    47. Natural Gas Distribution. This economic census category comprises: “(1) Establishments primarily engaged in operating gas distribution systems (e.g., mains, meters); (2) establishments known as gas marketers that buy gas from the well and sell it to a distribution system; (3) establishments known as gas brokers or agents that arrange the sale of gas over gas distribution systems operated by others; and (4) establishments primarily engaged in transmitting and distributing gas to final consumers.” The SBA has developed a small business size standard for this industry, which is all such firms having 1,000 or fewer employees. According to Census Bureau data for 2012, there were 422 firms in this category that operated for the entire year. Of this total, 399 firms had employment of fewer than 1,000 employees, 23 firms had employment of 1,000 employees or more, and 37 firms were not operational. Thus, the majority of firms in this category can be considered small.

    48. Water Supply and Irrigation Systems. This economic census category “comprises establishments primarily engaged in operating water treatment plants and/or operating water supply systems. The water supply system may include pumping stations, aqueducts, and/or distribution mains. The water may be used for drinking, irrigation, or other uses.” The SBA has developed a small business size standard for this industry, which is all such firms having $27.5 million or less in annual receipts. According to Census Bureau data for 2012, there were 3,261 firms in this category that operated for the entire year. Of this total, 3,035 firms had annual sales of less than $25 million. Thus, the majority of firms in this category can be considered small.

    D. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements

    49. The FNPRM seeks comment on a number of proposals that would affect reporting, recordkeeping, and other compliance requirements. We would expect the proposals on which the FNPRM seeks comment to reduce reporting, recordkeeping, and other compliance requirements. The proposals taken as a whole would have a beneficial reporting, recordkeeping, or compliance impact on small entities because all carriers would be subject to fewer such burdens. Each of these changes is described below.

    50. The FNPRM proposes to adopt a uniform reduced public comment period of 10 days and an auto-grant period of 25 days for all carriers seeking to grandfather data services with download/upload speeds of less than 25 Mbps/3 Mbps, so long as the applying carrier provides data services of equivalent quality at speeds of at least 25 Mbps/3 Mbps or higher throughout the affected service area. Under this proposal, such services must be grandfathered for a period of no less than 180 days before a carrier may submit an application to the Commission seeking authorization to discontinue such services. We seek comment on these proposals, and on whether applications to discontinue these higher-speed data services after they have been grandfathered for a period of at least 180 days should be subject to a streamlined 10-day comment period and a 31-day auto-grant period upon inclusion of a certification that the carrier has received Commission authorization to grandfather the services at issue at least 180 days prior to the filing of the discontinuance application. The FNPRM seeks comment on the appropriate regulatory treatment (if any) for pole work that is not subject to the standard Commission pole attachment timeline (e.g., overlashing, drops), including whether to require prior written notice to utilities when attachers attempt such work.

    51. The FNPRM also seeks comment on a variety of recommendations for additional reforms to the Commission's network change disclosure rules and the section 214(a) discontinuance authorization process. First, the FNPRM seeks comment on a proposal to revise the rule governing short-term network change notices to calculate the effective date of such notices from the date the incumbent LEC files its notice or certification of the change rather than from the date the Commission releases its public notice. Second, the FNPRM seeks comment on a proposal to eliminate the requirement that incumbent LECs provide public notice of network changes affecting the interoperability of customer premises equipment. Third, the FNPRM seeks comment on extending the streamlined notice procedures applicable to force majeure and other unforeseen events adopted in today's Order for copper retirements to all types of network changes. Fourth, the FNPRM seeks comment on whether we should forbear from requiring compliance with the discontinuance requirements of section 214(a) in all instances where a carrier seeks to discontinue, reduce, or impair services with no existing customers. Alternatively, the FNPRM seeks comment on whether we should further streamline the discontinuance process for all “no customer” applications, regardless of the speed of the services being discontinued. Fifth, the FNPRM seeks comment on ways to further streamline the section 214(a) discontinuance process for legacy voice services. In particular, we seek comment on Verizon's proposal that the Commission streamline processing of section 214(a) discontinuance applications for legacy voice services where a carrier certifies: (1) That it provides interconnected VoIP service throughout the affected service area; and (2) that at least one other alternative voice service is available in the affected service area. We also seek comment on Verizon's request that we forbear from applying section 214(a)'s discontinuance requirements to carriers seeking to transition from legacy voice services to next-generation replacement services. Sixth, the FNPRM seeks comment on whether we should eliminate the outreach requirements adopted by the Commission in the 2016 Technology Transitions Order. Lastly, in light of the important and complementary roles that local, state, and federal authorities play in facilitating swift recovery from disasters such as Hurricanes Harvey, Irma, and Maria, we seek comment on whether there are targeted circumstances in which we can and should use our authority to preempt state or local laws that inhibit restoration of communications infrastructure.

    E. Steps Taken To Minimize Significant Economic Impact on Small Entities, and Significant Alternatives Considered

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

    53. In the FNPRM, we propose to adopt a uniform reduced public comment period of 10 days and an auto-grant period of 25 days for all carriers seeking to grandfather data services with download/upload speeds of less than 25 Mbps/3 Mbps, so long as the applying carrier provides data services of equivalent quality at speeds of at least 25 Mbps/3 Mbps or higher throughout the affected service area. Under this proposal, such services must be grandfathered for a period of no less than 180 days before a carrier may submit an application to the Commission seeking authorization to discontinue such services. We seek comment on these proposals, and on whether applications to discontinue these higher-speed data services after they have been grandfathered for a period of at least 180 days should be subject to a streamlined 10-day comment period and a 31-day auto-grant period upon inclusion of a certification that the carrier has received Commission authorization to grandfather the services at issue at least 180 days prior to the filing of the discontinuance application.

    54. In the FNPRM, we further seek comment on how best to treat pole work that is not subject to our standard required pole attachment timeline. While one of the proposals on which we seek comment would impose a notice burden on attachers before attempting such work, such a burden potentially could be offset by not requiring such work to be pre-approved by the utility pole owner or regulated pursuant to the Commission's standard pole attachment timeline.

    55. In the FNPRM, we also seek comment on several proposals to reform the Commission's network change disclosure rules and the section 214(a) discontinuance authorization process. If adopted, many of these proposals would reduce the economic impact on small entities by significantly reducing the reporting, recordkeeping, and additional compliance burdens on such entities. To that end, the Commission seeks comment on proposals to (1) revise the rule governing short-term network change notices to calculate the effective date of such notices from the date the incumbent LEC files its notice or certification of the change rather than from the date the Commission releases its public notice, and (2) eliminate the requirement that incumbent LECs provide public notice of network changes affecting the interoperability of customer premises equipment. The FNPRM also seeks comment extending the streamlined notice procedures applicable to force majeure and other unforeseen events adopted in today's Order for copper retirements to all types of network changes. In addition, the FNPRM seeks comment on whether we should forbear from requiring compliance with the discontinuance requirements of section 214(a) in all instances where a carrier seeks to discontinue, reduce, or impair services with no existing customers. Alternatively, the FNPRM seeks comment on whether we should further streamline the discontinuance process for all “no customer” applications, regardless of the speed of the services being discontinued. The FNPRM also seeks comment on ways to further streamline the section 214(a) discontinuance process for legacy voice services. In particular, we seek comment on Verizon's proposal that the Commission streamline processing of section 214(a) discontinuance applications for legacy voice services where a carrier certifies: (1) That it provides interconnected VoIP service throughout the affected service area; and (2) that at least one other alternative voice service is available in the affected service area. Alternatively, we seek comment on Verizon's request that we forbear from applying section 214(a)'s discontinuance requirements to carriers seeking to transition from legacy voice services to next-generation replacement services. The FNPRM also seeks comment on whether the Commission should eliminate the outreach requirements adopted by the Commission in the 2016 Technology Transitions Order. Lastly, in light of the important and complementary roles that local, state, and federal authorities play in facilitating swift recovery from disasters such as Hurricanes Harvey, Irma, and Maria, the FNPRM seeks comment on whether there are targeted circumstances in which we can and should use our authority to preempt state or local laws that inhibit restoration of communications infrastructure.

    56. The Commission believes that the proposals upon which the FNPRM seeks comment will benefit all carriers, regardless of size. The proposals would further the goal of reducing regulatory burdens, thus facilitating investment in next-generation networks and promoting broadband deployment. We anticipate that a more modernized regulatory scheme will encourage carriers to invest in and deploy even more advanced technologies as they evolve. We also believe that preempting state or local laws that inhibit the restoration of communications infrastructure will help to facilitate swifter and more effective recoveries from natural disasters such as hurricanes.

    F. Federal Rules That May Duplicate, Overlap, or Conflict With the Proposed Rule

    57. None.

    III. Procedural Matters A. Paperwork Reduction Act of 1995 Analysis

    58. This document contains proposed modified information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and the Office of Management and Budget to comment on the information collection requirements contained in this document, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), we seek specific comment on how we might further reduce the information collection burden for small business concerns with fewer than 25 employees.

    B. Initial Regulatory Flexibility Analysis

    59. An initial regulatory flexibility analysis (IRFA) is contained in Appendix D of the Further Notice of Proposed Rulemaking. Comments to the IRFA must be identified as responses to the IRFA and filed by the deadlines for comments on the Further Notice of Proposed Rulemaking. The Commission will send a copy of the Further Notice of Proposed Rulemaking, including the IRFA, to the Chief Counsel for Advocacy of the Small Business Administration.

    C. Filing Instructions

    60. Pursuant to sections 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS). See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).

    Electronic Filers: Comments may be filed electronically using the internet by accessing the ECFS.

    Paper Filers: Parties who choose to file by paper must file an original and one copy of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number.

    ○ Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.

    ○ All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW, Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of before entering the building.

    ○ Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9050 Junction Drive, Annapolis Junction, MD 20701.

    ○ U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW, Washington, DC 20554.

    61. People with Disabilities: To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to [email protected] or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY).

    D. Ex Parte Information

    62. This proceeding shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules. Persons making ex parte presentations must file a copy of any written presentation or a memorandum summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine period applies). Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation must list all persons attending or otherwise participating in the meeting at which the ex parte presentation was made, and summarize all data presented and arguments made during the presentation. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter's written comments, memoranda, or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission staff during ex parte meetings are deemed to be written ex parte presentations and must be filed consistent with section 1.1206(b) of the Commission's rules. In proceedings governed by section 1.49(f) of the Commission's rules or for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding, and must be filed in their native format (e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission's ex parte rules.

    E. Contact Person

    63. For further information about this proceeding, please contact Michele Levy Berlove, FCC Wireline Competition Bureau, Competition Policy Division, Room 5-C313, 445 12th Street SW, Washington, DC 20554, at (202) 418-1477, [email protected], or Michael Ray, FCC Wireline Competition Bureau, Competition Policy Division, Room 5-C235, 445 12th Street SW, Washington, DC 20554, (202) 418-0357, [email protected]

    IV. Ordering Clauses

    64. Accordingly, it is ordered that, pursuant to sections 1-4, 201, 202, 214, 224, 251, and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 151-154, 201, 202, 214, 224, 251, and 303(r), the Further Notice of Proposed Rulemaking is adopted.

    65. It is further ordered that the Commission's Consumer & Governmental Affairs Bureau, Reference Information Center, shall send a copy of the Further Notice of Proposed Rulemaking, including the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

    List of Subjects in 47 CFR Part 63

    Extension of lines, new lines, and discontinuance, reduction, outage and impairment of service by common carriers; and Grants of recognized private operating agency status.

    Federal Communications Commission. Marlene H. Dortch, Secretary. Office of the Secretary. Proposed Rules

    For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 63 as follows:

    PART 63—EXTENSION OF LINES, NEW LINES, AND DISCONTINUANCE, REDUCTION, OUTAGE AND IMPAIRMENT OF SERVICE BY COMMON CARRIERS; AND GRANTS OF RECOGNIZED PRIVATE OPERATING AGENCY STATUS 1. The authority for part 63 continues to read as follows: Authority:

    Sections 1, 4(i), 4(j), 10, 11, 201-205, 214, 218, 403 and 651 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), 160, 201-205, 214, 218, 403, and 571, unless otherwise noted.

    2. Section 63.71 is amended by adding paragraph (l) to read as follows:
    § 63.71 Procedures for discontinuance, reduction or impairment of service by domestic carriers.

    (l) The following requirements are applicable to data service operating at download/upload speeds of less than 25 Mbps/3 Mbps in a service area in which the carrier provides alternative data services of equivalent quality at download/upload speeds of 25 Mbps/3 Mbps or higher:

    (1) Notwithstanding paragraphs (a)(5)(i)-(ii) and (k)(1) of this section, if any carrier, dominant or non-dominant, seeks to grandfather data service operating at download/upload speeds of less than 25 Mbps/3 Mbps in a service area in which the carrier provides data services of equivalent quality at speeds of 25 Mbps/3 Mbps or higher, the notice shall state: The FCC will normally authorize this proposed discontinuance of service (or reduction or impairment) unless it is shown that customers would be unable to receive service or a reasonable substitute from another carrier or that the public convenience and necessity is otherwise adversely affected. If you wish to object, you should file your comments as soon as possible, but no later than 10 days after the Commission releases public notice of the proposed discontinuance. You may file your comments electronically through the FCC's Electronic Comment Filing System using the docket number established in the Commission's public notice for this proceeding, or you may address them to the Federal Communications Commission, Wireline Competition Bureau, Competition Policy Division, Washington, DC 20554, and include in your comments a reference to the § 63.71 Application of (carrier's name). Comments should include specific information about the impact of this proposed discontinuance (or reduction or impairment) upon you or your company, including any inability to acquire reasonable substitute service.

    (2) An application filed by any carrier seeking to grandfather data service operating at download/upload speeds of less than 25 Mbps/3 Mbps for existing customers in a service area in which the carrier provides data services of equivalent quality at speeds of 25 Mbps/3 Mbps or higher shall be automatically granted on the 25th day after its filing with the Commission without any Commission notification to the applicant unless the Commission has notified the applicant that the grant will not be automatically effective. Such service must be grandfathered for a minimum of 180 days before a carrier can file an application with the Commission to discontinue, reduce, or impair the previously grandfathered service.

    [FR Doc. 2017-27199 Filed 12-27-17; 8:45 am] BILLING CODE 6712-01-P
    DEPARTMENT OF TRANSPORTATION Federal Motor Carrier Safety Administration 49 CFR Part 395 [Docket No. FMCSA-2017-0336] Hours of Service of Drivers: Application for Exemption; Agricultural Retailers Association AGENCY:

    Federal Motor Carrier Safety Administration (FMCSA), DOT.

    ACTION:

    Application for exemption; request for comments.

    SUMMARY:

    FMCSA announces that the Agricultural Retailers Association (ARA) has requested an exemption on behalf of its members from the requirement that motor carriers and their drivers of commercial motor vehicles (CMVs) use an electronic logging device (ELD) to record the driver hours-of-service (HOS). ARA states that the ELD requirement imposes undue economic and other burdens on its member retailers and distributors of farm-related products and services. It asserts that ELDs fail to properly record the complex HOS data, are not properly certified by the FMCSA, and do not provide appropriate cyber-security safeguards. ARA also asserts that ELDs will not function properly in many locations in rural America because of poor internet and cellular connectivity. ARA states that the operations of its members under exemption from the ELD requirements will achieve a level of safety equivalent to, or greater than, the level that would be achieved absent the proposed exemption. FMCSA requests public comment on ARA's application for exemption.

    DATES:

    Comments must be received on or before January 29, 2018.

    ADDRESSES:

    You may submit comments identified by Federal Docket Management System (FDMS) Number FMCSA-2017-0336 by any of the following methods:

    Federal eRulemaking Portal: www.regulations.gov. See the Public Participation and Request for Comments section below for further information.

    Mail: Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Avenue SE, West Building, Ground Floor, Room W12-140, Washington, DC 20590-0001.

    Hand Delivery or Courier: West Building, Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    Fax: 1-202-493-2251

    • Each submission must include the Agency name and the docket number for this notice. Note that DOT posts all comments received without change to www.regulations.gov, including any personal information included in a comment. Please see the Privacy Act heading below.

    Docket: For access to the docket to read background documents or comments, go to www.regulations.gov at any time or visit Room W12-140 on the ground level of the West Building, 1200 New Jersey Avenue SE, Washington, DC, between 9 a.m. and 5 p.m., ET, Monday through Friday, except Federal holidays. The on-line FDMS is available 24 hours each day, 365 days each year.

    Privacy Act: In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL-14 FDMS), which can be reviewed at www.dot.gov/privacy.

    FOR FURTHER INFORMATION CONTACT:

    For information concerning this notice, contact Mr. Tom Yager, Chief, FMCSA Driver and Carrier Operations Division; Office of Carrier, Driver and Vehicle Safety Standards; Telephone: 614-942-6477. Email: [email protected] If you have questions on viewing or submitting material to the docket, contact Docket Services, telephone (202) 366-9826.

    SUPPLEMENTARY INFORMATION: I. Public Participation and Request for Comments

    FMCSA encourages you to participate by submitting comments and related materials.

    Submitting Comments

    If you submit a comment, please include the docket number for this notice (FMCSA-2017-0336), indicate the specific section of this document to which the comment applies, and provide a reason for suggestions or recommendations. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so the Agency can contact you if it has questions regarding your submission.

    To submit your comments online, go to www.regulations.gov and put the docket number, “FMCSA-2017-0336” in the “Keyword” box, and click “Search.” When the new screen appears, click on “Comment Now!” button and type your comment into the text box in the following screen. Choose whether you are submitting your comment as an individual or on behalf of a third party and then submit. If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 81/2 by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the facility, please enclose a stamped, self-addressed postcard or envelope. FMCSA will consider all comments and material received during the comment period.

    II. Legal Basis

    FMCSA has authority under 49 U.S.C. 31136(e) and 31315 to grant exemptions from certain parts of the Federal Motor Carrier Safety Regulations (FMCSRs). FMCSA must publish a notice of each exemption request in the Federal Register (49 CFR 381.315(a)). The Agency must provide the public an opportunity to inspect the information relevant to the application, including any safety analyses that have been conducted. The Agency must also provide an opportunity for public comment on the request.

    The Agency reviews safety analyses and public comments submitted, and determines whether granting the exemption would likely achieve a level of safety equivalent to, or greater than, the level that would be achieved by the current regulation (49 CFR 381.305). The decision of the Agency must be published in the Federal Register (49 CFR 381.315(b)) with the reasons for denying or granting the application and, if granted, the name of the person or class of persons receiving the exemption, and the regulatory provision from which the exemption is granted. The document must also specify the effective period and explain the terms and conditions of the exemption. The exemption may be renewed (49 CFR 381.300(b)).

    III. Request for Exemption

    The hours of service (HOS) rules (49 CFR part 395) prescribe the duty-time limits and rest requirements for interstate drivers of commercial motor vehicles (CMVs), and provide various exceptions to the HOS rules for CMV drivers engaged in certain agricultural operations. Beginning December 18, 2017, most motor carriers and drivers of CMVs in interstate commerce will be required to use electronic logging devices (ELDs), not handwritten logbooks, to document their HOS duty status (49 CFR 395.8(a)(1)(i)). The HOS rules and the various agricultural exceptions will not change—only the manner of recording compliance with them.

    ARA applies for exemption from the ELD requirement on behalf of its member retailers and distributors of farm-related products and services. ARA members rely on CMVs to deliver their products and services to farms. ARA does not estimate the number of drivers that would be exempt if its application would be granted.

    ARA asserts that its members are not fully prepared to meet the December 18, 2017 deadline. It seeks exemption to obtain a postponement of the approaching deadline. ATA recommends that the time created by the postponement be used by FMCSA to correct what ARA perceives to be shortcomings of the ELD rule. ARA states that its members need additional information and guidance about the ELD rule, but also asserts that the ELD rule as currently constituted is unduly burdensome for its members. It asserts that ELD vendors and manufacturers do not offer ELD products that address the needs of ARA members. ARA explains that the ELD systems being offered do not accommodate the various exceptions from the HOS rules that agricultural drivers routinely employ. ARA also believes that FMCSA has complicated the search for quality ELDs by allowing ELD manufacturers to certify their products themselves; ARA believes the FMCSA should be certifying ELD devices.

    ARA asserts that poor internet and cellular service in certain parts of the country calls the technological feasibility of ELDs in the agriculture industry into question. In addition, ARA is concerned that ELDs are vulnerable to both cybersecurity attack and illicit monitoring of the movements of member CMVs, some of which transport hazardous materials. ARA also asserts that ELDs contribute to driver distraction and thus negatively affect safety. A copy of ARA's application for exemption is available for review in the docket for this notice.

    ARA states that its application will achieve a level of safety equivalent to, or greater than, the level that would be achieved absent the proposed exemption.

    Issued on: December 14, 2017. Larry W. Minor, Associate Administrator for Policy.
    [FR Doc. 2017-27884 Filed 12-27-17; 8:45 am] BILLING CODE 4910-EX-P
    82 248 Thursday, December 28, 2017 Notices DEPARTMENT OF AGRICULTURE Agricultural Marketing Service (AMS) Designation for the Essex, Illinois; Savage, Minnesota; Alabama; and Washington Areas AGENCY:

    Agricultural Marketing Service, USDA.

    ACTION:

    Notice of designation.

    SUMMARY:

    AMS is announcing the designations of Kankakee Grain Inspection, Inc. (Kankakee); State Grain Inspection, Inc. (State Grain); Alabama Department of Agriculture and Industries (Alabama); and the Washington Department of Agriculture (Washington) to provide official services under the United States Grain Standards Act (USGSA), as amended. The realignment of offices within the U.S. Department of Agriculture authorized by the Secretary's Memorandum dated November 14, 2017, eliminates the Grain Inspection, Packers and Stockyards Administration (GIPSA) as a standalone agency. The grain inspection activities formerly part of GIPSA are now organized under the Agricultural Marketing Service (AMS).

    DATES:

    Applicable Date: January 1, 2018.

    ADDRESSES:

    Jacob Thein, Compliance Officer, USDA, AMS, FGIS, QACD, 10383 North Ambassador Drive, Kansas City, MO 64153

    FOR FURTHER INFORMATION CONTACT:

    Jacob Thein, 816-866-2223, [email protected] or [email protected].

    Read Applications: All applications and comments are available for public inspection at the office above during regular business hours (7 CFR 1.27(c)).

    SUPPLEMENTARY INFORMATION:

    In the July 3, 2017, Federal Register (82 FR 30817-30820), GIPSA requested applications for designation to provide official services in the geographic areas presently serviced by Kankakee, State Grain, Alabama, and Washington. Applications were due by August 2, 2017.

    Because the current official agencies, Kankakee, State Grain, Alabama, and Washington, were the only applicants for designation to provide official services in these areas, GIPSA did not ask for additional comments.

    GIPSA evaluated the designation criteria in section 7(f) of the USGSA (7 U.S.C. 79(f)) and determined that Kankakee, State Grain, Alabama, and Washington are qualified to provide official services in the geographic areas specified in the Federal Register on July 3, 2017. These designations to provide official services in the specified areas of Kankakee, Alabama, and Washington are effective January 1, 2018, to December 31, 2022. The designation to provide official services in the specified area of State Grain is effective January 1, 2018, to December 31, 2018.

    Interested persons may obtain official services by contacting this agency at the following telephone number:

    Official agency Headquarters location and telephone Designation start Designation end Kankakee Essex, IL, 815-365-2268 1/1/2018 12/31/2022 State Grain Savage, MN, 952-808-8566 1/1/2018 12/31/2018 Alabama Montgomery, AL, 251-438-2549 1/1/2018 12/31/2022 Washington Olympia, WA, 253-820-3756 1/1/2018 12/31/2022

    Section 7(f) of the USGSA authorizes the Secretary to designate a qualified applicant to provide official services in a specified area after determining that the applicant is better able than any other applicant to provide such official services (7 U.S.C. 79 (f)).

    Dated: December 21, 2017. Bruce Summers, Acting Administrator, Agricultural Marketing Service.
    [FR Doc. 2017-28033 Filed 12-27-17; 8:45 am] BILLING CODE 3410-02-P
    DEPARTMENT OF AGRICULTURE Forest Service Kootenai National Forest, Lincoln County, Montana Montanore Project AGENCY:

    Forest Service, USDA.

    ACTION:

    Notice of intent to prepare a supplemental environmental impact statement.

    SUMMARY:

    The Kootenai National Forest (KNF) will prepare a Supplemental Environmental Impact Statement (SEIS) on a proposed federal action, which is approval of a Plan of Operations for the Evaluation Phase of the Montanore Project (Project) The Project is a proposed underground copper and silver mine located about 18 miles south of Libby, near the Cabinet Mountains within the Libby Ranger District, Kootenai National Forest, Lincoln County, Montana. The Montanore Project is proposed by Montanore Minerals Corp. (MMC), a subsidiary of Hecla Mining Co.

    DATES:

    Scoping is not required for an SEIS (40 CFR 1502.9(c)(4)). The Forest Service is not inviting comments at this time. The draft SEIS is expected to be available for public review and comment in the first quarter of 2018 and the final SEIS is expected to be issued in the second quarter of 2018. The comment period for the draft SEIS will be for 45 days from the date the Environmental Protection Agency publishes the notice of availability in the Federal Register.

    ADDRESSES:

    Kootenai National Forest, 31374 U.S. Highway 2, Libby, MT 59923.

    FOR FURTHER INFORMATION CONTACT:

    Lynn Hagarty, Project Coordinator, Kootenai National Forest, Supervisor's Office, 31374 U.S. Highway 2, Libby, MT 59923-3022. Inquiries can be made by phone at (406) 293-6211 or via email at [email protected]

    SUPPLEMENTARY INFORMATION:

    This SEIS and related proposed federal action, which is the approval of a Plan of Operations for the Evaluation Phase of the Montanore Project, is being completed consistent with the Organic Administration Act, the Locatable Minerals Regulations (36 CFR 228 Subpart A), and the Multiple Use Mining Act. The KNF issued a Joint Final Environmental Impact Statement (JFEIS) in December 2015 and a Record of Decision (ROD) in February 2016. The Montana Department of Environmental Quality (DEQ) also issued a ROD in February 2016 that provided the State's approval of the Evaluation Phase of the project. In a U.S. District Court opinion issued on May 30, 2017 in a consolidated case (Save Our Cabinets v. U.S. Dep't of Agric., No. CV-16-53-M-DWM and Libby Placer Mining Co. v. U.S. Forest Serv., No. CV 16-56-M-DWM), the U.S. District Court ruled that the Forest Service violated, in various respects, the Clean Water Act, the Organic Administration Act, the National Forest Management Act, and the National Environmental Policy Act by approving the Montanore Project. In a separate opinion in Save Our Cabinets v. U.S. Fish & Wildlife Serv. (No. CV 15-69-M-DWM) issued concurrently with the first, the Court ruled that the U.S. Fish and Wildlife Service violated the Endangered Species Act (ESA) because the No Jeopardy conclusions regarding bull trout and grizzly bears were flawed and that the Forest Service violated the ESA by relying on the flawed Biological Opinions. The Court vacated the Forest Service decision approving the project and remanded the 2016 ROD and JFEIS back to the Forest Service for further action, “either through issuing a new Record of Decision that approves only the Evaluation Phase or one that again addresses the entire project.” Furthermore, the Court stated that the primary problem with the 2016 ROD was that it approved the entire project, not just the Evaluation Phase. The Court also remanded to the U.S. Fish and Wildlife Service its 2014 Biological Opinions. The SEIS will describe the activities that would occur during the Evaluation Phase of the Montanore Project, clarify what effects would occur as a result of those activities, and update resource analyses if there are significant new circumstances or information relevant to environmental concerns and bearing on the Evaluation Phase or its impacts in order to ensure a complete analysis of the environmental effects of the proposed federal action.

    Following is a brief summary of the Evaluation Phase of the Montanore Project, as it would occur under Alternative 3 selected by the KNF in its 2016 ROD. Detailed descriptions of the alternatives studied in detail are provided in the Joint FEIS and ROD, which can be can be viewed or downloaded from the following website: https://www.fs.usda.gov/projects/kootenai/landmanagement/projects.

    Evaluation Phase

    The purposes of the Evaluation Phase would be to: (1) Expand the knowledge of the mineralized zones of the deposit; (2) assess and define the mineralized zone within established valid existing rights; and (3) collect, provide, and analyze additional geotechnical, hydrological, and other information necessary for preparation of a mine plan for subsequent phases. An updated mine Plan of Operations would be required should MMC decide, based on the assessment of the orebody and other information collected during the Evaluation Phase, to pursue subsequent phases of the project. Information collected during the Evaluation Phase would be used to confirm and update the analysis for subsequent phases that was provided in the JFEIS, should the KNF receive an updated mine Plan of Operations for subsequent project phases.

    The Evaluation Phase is anticipated to last 18 to 24 months. MMC would dewater the full extent of the existing Libby Adit and develop an additional 10,500 feet of drifts and 35 drill stations above the currently defined ore zones. MMC would drill ahead of the drifts and keep all drill stations 300 feet from the Rock Lake Fault and 1,000 feet from Rock Lake. The drill core would be used to support resource modeling, mine planning, metallurgical testing, preliminary hydrology assessment, and rock mechanic studies for the full Montanore Project. An estimated 287,000 tons (140,000 cubic yards) of waste rock would be generated and stored on private land at the Libby Adit Site. The waste rock storage areas would be lined to collect runoff from the area and seepage through the waste rock.

    Water from the Libby Adit and from the waste rock storage area would be treated before discharging to MPDES-permitted outfalls. The MPDES permit MT0030279, which the DEQ issued in 2017, sets effluent limits and establishes monitoring for wastewater discharges from the Libby Adit Water Treatment Plant. Treated water would be discharged to a percolation pond located at the Libby Adit Site.

    MMC would use Tier 4 generators, if available, or Tier 3 generators for all Evaluation Phase activities and would be subject to the limits, emission controls, and mitigations required by its Air Quality Permit (MAQP #3788-00). MMC would also use Tier 4 engines, if available, or Tier 3 engines on underground mobile equipment and use ultra-low sulfur diesel fuel in generator and underground mobile equipment engines during the Evaluation Phase.

    In addition to underground activities, MMC would conduct field studies on National Forest System lands between Poorman and Little Cherry Creeks. The field studies would include a site reconnaissance and a drilling and sampling program to evaluate site geology, groundwater conditions and water quality. Surface disturbances would be reclaimed.

    If MMC does not pursue subsequent phases of the project or if those phases are not approved by the Forest Service, MMC would install a concrete-reinforced hydraulic plug in the adit, reconstruct the original adit plug, remove all surface facilities, and regrade and revegetate the disturbed areas. Monitoring that would occur during the Evaluation Phase is described in Appendix C of the JFEIS.

    Lead and Cooperating Agencies

    The USDA Forest Service is the Lead Agency for this project. Other agencies may become a Cooperating Agency as the SEIS progresses.

    Responsible Official

    Christopher Savage, Forest Supervisor Kootenai National Forest, 31374 U.S. Highway 2, Libby, MT 59923 is the Responsible Official for the Montanore Project.

    Dated: December 8, 2017. Chris French, Associate Deputy Chief, National Forest System.
    [FR Doc. 2017-28060 Filed 12-27-17; 8:45 am] BILLING CODE 3411-15-P
    DEPARTMENT OF COMMERCE Submission for OMB Review; Comment Request

    The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act.

    Agency: U.S. Census Bureau.

    Title: Annual Business Survey.

    OMB Control Number: 0607-XXXX.

    Form Number(s): ABS-1 Worksheet, ABS-2 Worksheet.

    Type of Request: New collection.

    Number of Respondents: 850,000.

    Average Hours per Response: 52 minutes.

    Burden Hours: 735,934.

    Needs and Uses: In an effort to improve the measurement of business dynamics in the United States, the Census Bureau plans to conduct the Annual Business Survey (ABS). The ABS is a new survey designed to combine Census Bureau firm-level collections to reduce respondent burden, increase data quality, reduce operational costs, and operate more efficiently. The ABS replaces the five-year Survey of Business Owners (SBO) for employer businesses, the Annual Survey of Entrepreneurs (ASE), and the Business R&D and Innovation for Microbusinesses (BRDI-M) surveys. ABS estimates will include the number of firms, sales/receipts, annual payroll, and employment by gender, ethnicity, race, and veteran status as well as R&D and Innovation and various other relevant topics. The ABS will be conducted jointly by the National Center for Science and Engineering Statistics (NCSES) within the National Science Foundation (NSF) and the Census Bureau for five reference years (2017-2021).

    The ABS universe includes all nonfarm employer businesses filing Internal Revenue Service (IRS) tax forms as individual proprietorships, partnerships, or any type of corporation, and with receipts of $1,000 or more. The ABS will sample approximately 850,000 employer businesses in 2017 and approximately 300,000 employer businesses in years 2018-2021. The sample is stratified by state, frame, and industry. The Census Bureau selects certain companies with certainty based on volume of sales, payroll, number of paid employees or NAICS. All certainty cases are sure to be selected and represent only themselves.

    The ABS is designed to incorporate new content each survey year based on topics of relevance. Each year a new module of questions is submitted to the Office of Management and Budget (OMB) for approval. Topics for the 2017 ABS include: Owner & Business Characteristics; R&D from microbusiness; Innovation; and Technology.

    The ABS collection is electronic only. Those selected for the survey receive an initial letter informing the respondents of their requirement to complete the survey as well as instructions on accessing the survey. The 2017 ABS initial mailout is scheduled for June 2018. Responses will be due approximately 40 days from initial mailout. Select respondents will receive a due date reminder approximately one week before responses are due. Additionally, there will be two follow-up letter mailings to nonrespondents after the due date. Select nonrespondents may receive a certified mailing for the second follow-up if needed. Closeout of mail operations is scheduled for December 2018. Upon the close of the collection period, the response data will be processed, edited, reviewed, tabulated, and released publicly.

    Statistics from the ABS will be used by government program officials, industry organization leaders, economic and social analysts, business entrepreneurs, and domestic and foreign researchers in academia, business, and government. Estimates produced on owner demographic data may be used to assess business assistance needs, allocate available program resources, and create a framework for planning, directing, and assessing programs that promote the activities of disadvantaged groups; to assess minority-owned businesses by industry and area and to educate industry associations, corporations, and government entities; to analyze business operations in comparison to similar firms, compute market share, and assess business growth and future prospects. Estimates produced on research and development and innovation may be used to compare R&D costs across industries, determine where R&D activity is conducted geographically, and identify the types of businesses with R&D; to contribute to the Bureau of Economic Analysis (BEA) system of national accounts; to increase investments in research and development, strengthen education, and encourage entrepreneurship; and to compare business innovation in the United States to that of other countries, including those in the European Union.

    Additionally, the data will help provide insight into the technology sector based on how businesses respond to questions about technology usage and approximate costs of technology usage.

    Historical ASE and SBO data have been widely used by private firms and individuals to evaluate their own businesses and markets. The ABS will be able to provide most of the same continuity as previous statistics, with enhanced content, to provide a more comprehensive view of domestic employer businesses, their owners and corresponding characteristics and activities. Additional examples of data use include:

    • The Small Business Administration (SBA) and the Minority Business Development Agency (MBDA) to assess business assistance needs and allocate available program resources.

    • Local government commissions on small and disadvantaged businesses to establish and evaluate contract procurement practices.

    • Federal, state and local government agencies as a framework for planning, directing and assessing programs that promote the activities of disadvantaged groups.

    • The National Women's Business Council to assess the state of women's business ownership for policymakers, researchers, and the public at large.

    • Consultants and researchers to analyze long-term economic and demographic shifts, and differences in ownership and performance among geographic areas.

    • Individual business owners to analyze their operations in comparison to similar firms, compute their market share, and assess their growth and future prospects.

    Affected Public: Business or other for-profit.

    Frequency: Annually.

    Respondent's Obligation: Mandatory.

    Legal Authority: Title 13 United States Code, Sections 8(b), 131, and 182, Title 42 United States Code, Section 1861-76 (National Science Foundation Act of 1950, as amended), and Section 505 within the America COMPETES Reauthorization Act of 2010 authorize this collection. Sections 224 and 225 of Title 13 United States Code requires response from sampled firms.

    This information collection request may be viewed at www.reginfo.gov. Follow the instructions to view Department of Commerce collections currently under review by OMB.

    Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to [email protected] or fax to (202) 395-5806.

    Sheleen Dumas, Departmental PRA Lead, Office of the Chief Information Officer.
    [FR Doc. 2017-28012 Filed 12-27-17; 8:45 am] BILLING CODE 3510-07-P
    DEPARTMENT OF COMMERCE Submission for OMB Review; Comment Request

    The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act.

    Agency: U.S. Census Bureau.

    Title: Survey of Housing Starts, Sales & Completions.

    OMB Control Number: 0607-0110.

    Form Number(s): SOC-Q1/SF.1, SCO-Q1/MF.1.

    Type of Request: Revision of a currently approved collection.

    Number of Respondents: 19,440.

    Average Hours per Response: 5 minutes.

    Burden Hours: 150,066.

    Needs and Uses: The U.S. Census Bureau is requesting a revision and extension of the currently approved collection for the Survey of Housing Starts, Sales, and Completions, otherwise known as the Survey of Construction (SOC). Government agencies and private companies use statistics from SOC to monitor and evaluate the large and dynamic housing construction industry. Data for two Principal Federal Economic Indicators are produced from the SOC: New Residential Construction (housing starts and housing completions) and New Residential Sales. In addition, a number of other statistical series are produced, including extensive information on the physical characteristics of new residential buildings, and indexes measuring rates of inflation in the price of new buildings. The collection of data on housing units sold and completed and physical characteristics is funded by the Department of Housing and Urban Development (HUD) via a reimbursable agreement with the Census Bureau. HUD uses data on housing market conditions to inform its policies. These statistics are based on a sample of residential buildings in permit-issuing places and a road canvass in a sample of land areas not covered by building permit systems.

    The respondents are homebuilders, real estate agents, rental agents, or new homeowners of sampled residential buildings. Field Representatives contact respondents multiple times based on the number of projects in the sample and the number of months required to complete the project (usually about 8 months).

    After discussions with HUD and other key data users, we identified one new data item on ceiling height to be added to the single-family questionnaire.

    The Census Bureau uses the information collected in the SOC to publish estimates of the number of new residential housing units started, under construction, completed, and the number of new houses sold and for sale. The Census Bureau also publishes many financial and physical characteristics of new housing units. Government agencies use these statistics to evaluate economic policy, measure progress towards the national housing goal, make policy decisions, and formulate legislation. For example, the Board of Governors of the Federal Reserve System uses data from this survey to evaluate the effect of interest rates in this interest-rate sensitive area of the economy. The Bureau of Economic Analysis uses the data in developing the Gross Domestic Product (GDP). The private sector uses the information for estimating the demand for building materials and the many products used in new housing and to schedule production, distribution, and sales efforts. The financial community uses the data to estimate the demand for short-term (construction loans) and long-term (mortgages) borrowing.

    Affected Public: Individuals; Businesses.

    Frequency: Monthly.

    Respondent's Obligation: Voluntary.

    Legal Authority: Title 13, United States Code, Sections 131 and 182.

    This information collection request may be viewed at www.reginfo.gov. Follow the instructions to view Department of Commerce collections currently under review by OMB.

    Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to [email protected] or fax to (202) 395-5806.

    Sheleen Dumas, Departmental PRA Lead, Office of the Chief Information Officer.
    [FR Doc. 2017-28021 Filed 12-27-17; 8:45 am] BILLING CODE 3510-07-P
    DEPARTMENT OF COMMERCE Bureau of Industry and Security In the Matter of: Joseph Esequiel-Gonzalez, Inmate Number: 04655-479, FCI Bastrop Federal Correctional Institution, P.O. Box 1010, Bastrop, TX 78602; Order Denying Export Privileges

    On August 30, 2016, in the U.S. District Court for the Southern District of Texas, Joseph Esequiel-Gonzalez (“Esequiel-Gonzalez”) was convicted of violating Section 38 of the Arms Export Control Act (22 U.S.C. 2778 (2012)) (“AECA”). Specifically, Esequiel-Gonzalez was convicted of knowingly and willfully exporting, attempting to export, and causing to be exported from the United States to Mexico a .380 caliber pistol, which was designated as a defense article on the United States Munitions List, without the required U.S. Department of State license. Esequiel-Gonzalez was sentenced to 55 months in prison, three years of supervised release, and a special assessment of $100.

    Section 766.25 of the Export Administration Regulations (“EAR” or “Regulations”) 1 provides, in pertinent part, that “[t]he Director of the Office of Exporter Services, in consultation with the Director of the Office of Export Enforcement, may deny the export privileges of any person who has been convicted of a violation of the EAA [Export Administration Act], the EAR, or any order, license, or authorization issued thereunder; any regulation, license or order issued under the International Emergency Economic Powers Act (50 U.S.C. 1701-1706); 18 U.S.C. 793, 794 or 798; section 4(b) of the Internal Security Act of 1950 (50 U.S.C. 783(b)); or section 38 of the Arms Export Control Act (22 U.S.C. 2778).” 15 CFR 766.25(a); see also Section 11(h) of the EAA, 50 U.S.C. 4610(h). The denial of export privileges under this provision may be for a period of up to 10 years from the date of the conviction. 15 CFR 766.25(d); see also 50 U.S.C. 4610(h). In addition, Section 750.8 of the Regulations states that the Bureau of Industry and Security's Office of Exporter Services may revoke any Bureau of Industry and Security (“BIS”) licenses previously issued pursuant to the Export Administration Act (“EAA” or “the Act”) or the Regulations in which the person had an interest at the time of his/her conviction.

    1 The Regulations are currently codified in the Code of Federal Regulations at 15 CFR parts 730-774 (2017). The Regulations issued pursuant to the Export Administration Act (50 U.S.C. 4601-4623 (Supp. III 2015) (available at http://uscode.house.gov)) (“EAA” or “the Act”). Since August 21, 2001, the Act has been in lapse and the President, through Executive Order 13222 of August 17, 2001 (3 CFR, 2001 Comp. 783 (2002)), which has been extended by successive Presidential Notices, the most recent being that of August 15, 2017 (82 FR 39005 (Aug. 16, 2017)), has continued the Regulations in effect under the International Emergency Economic Powers Act (50 U.S.C. 1701, et seq. (2012)).

    BIS has received notice of Esequiel-Gonzalez's conviction for violating Section 38 of the AECA, and has provided notice and an opportunity for Esequiel-Gonzalez to make a written submission to BIS, as provided in Section 766.25 of the Regulations. BIS has not received a submission from Esequiel-Gonzalez.

    Based upon my review and consultations with BIS's Office of Export Enforcement, including its Director, and the facts available to BIS, I have decided to deny Esequiel-Gonzalez's export privileges under the Regulations for a period of 10 years from the date of Esequiel-Gonzalez's conviction. I have also decided to revoke all licenses issued pursuant to the Act or Regulations in which Esequiel-Gonzalez had an interest at the time of his conviction.

    Accordingly, it is hereby ordered:

    First, from the date of this Order until August 30, 2026, Joseph Esequiel-Gonzalez, with a last known address of Inmate Number 04655-479, FCI Bastrop Federal Correctional Institution, P.O. Box 1010, Bastrop, TX 78602, and when acting for or on his behalf, his successors, assigns, employees, agents or representatives (“the Denied Person”), may not, directly or indirectly, participate in any way in any transaction involving any commodity, software or technology (hereinafter collectively referred to as “item”) exported or to be exported from the United States that is subject to the Regulations, including, but not limited to:

    A. Applying for, obtaining, or using any license, license exception, or export control document;

    B. Carrying on negotiations concerning, or ordering, buying, receiving, using, selling, delivering, storing, disposing of, forwarding, transporting, financing, or otherwise servicing in any way, any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or engaging in any other activity subject to the Regulations; or

    C. Benefitting in any way from any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or from any other activity subject to the Regulations.

    Second, no person may, directly or indirectly, do any of the following:

    A. Export or reexport to or on behalf of the Denied Person any item subject to the Regulations;

    B. Take any action that facilitates the acquisition or attempted acquisition by the Denied Person of the ownership, possession, or control of any item subject to the Regulations that has been or will be exported from the United States, including financing or other support activities related to a transaction whereby the Denied Person acquires or attempts to acquire such ownership, possession or control;

    C. Take any action to acquire from or to facilitate the acquisition or attempted acquisition from the Denied Person of any item subject to the Regulations that has been exported from the United States;

    D. Obtain from the Denied Person in the United States any item subject to the Regulations with knowledge or reason to know that the item will be, or is intended to be, exported from the United States; or

    E. Engage in any transaction to service any item subject to the Regulations that has been or will be exported from the United States and which is owned, possessed or controlled by the Denied Person, or service any item, of whatever origin, that is owned, possessed or controlled by the Denied Person if such service involves the use of any item subject to the Regulations that has been or will be exported from the United States. For purposes of this paragraph, servicing means installation, maintenance, repair, modification or testing.

    Third, after notice and opportunity for comment as provided in Section 766.23 of the Regulations, any other person, firm, corporation, or business organization related to Esequiel-Gonzalez by ownership, control, position of responsibility, affiliation, or other connection in the conduct of trade or business may also be made subject to the provisions of this Order in order to prevent evasion of this Order.

    Fourth, in accordance with Part 756 of the Regulations, Esequiel-Gonzalez may file an appeal of this Order with the Under Secretary of Commerce for Industry and Security. The appeal must be filed within 45 days from the date of this Order and must comply with the provisions of Part 756 of the Regulations.

    Fifth, a copy of this Order shall be delivered to Esequiel-Gonzalez and shall be published in the Federal Register.

    Sixth, this Order is effective immediately and shall remain in effect until August 30, 2026.

    Issued this 19th day of December 2017. Karen H. Nies-Vogel, Director, Office of Exporter Services.
    [FR Doc. 2017-28006 Filed 12-27-17; 8:45 am] BILLING CODE P
    DEPARTMENT OF COMMERCE Bureau of Industry and Security In the Matter of: Hunter Perry, 173 Red Hawk Drive, Vine Grove, KY 40175; Order Denying Export Privileges

    On July 20, 2016, in the U.S. District Court for the Western District of Kentucky, Hunter Perry (“Perry”) was convicted of violating Section 38 of the Arms Export Control Act (22 U.S.C. 2778 (2012)) (“AECA”). Specifically, Perry was convicted of knowingly and willfully exporting or causing to be exported from the United States to the United Kingdom defense articles on the United States Munitions List, without the required U.S. Department of State licenses, including, inter alia, a D-760 night vision scope, a PAS-13 thermal scope, a PAS-23 mini-thermal scope, and a PVS-15 night vision binocular. Perry was sentenced to one day in prison, one year of supervised release, and a special assessment of $500.

    Section 766.25 of the Export Administration Regulations (“EAR” or “Regulations”) 1 provides, in pertinent part, that “[t]he Director of the Office of Exporter Services, in consultation with the Director of the Office of Export Enforcement, may deny the export privileges of any person who has been convicted of a violation of the EAA [Export Administration Act], the EAR, or any order, license, or authorization issued thereunder; any regulation, license or order issued under the International Emergency Economic Powers Act (50 U.S.C. 1701-1706); 18 U.S.C. 793, 794 or 798; section 4(b) of the Internal Security Act of 1950 (50 U.S.C. 783(b)); or section 38 of the Arms Export Control Act (22 U.S.C. 2778).” 15 CFR 766.25(a); see also Section 11(h) of the EAA, 50 U.S.C. 4610(h). The denial of export privileges under this provision may be for a period of up to 10 years from the date of the conviction. 15 CFR 766.25(d); see also 50 U.S.C. 4610(h). In addition, Section 750.8 of the Regulations states that the Bureau of Industry and Security's Office of Exporter Services may revoke any Bureau of Industry and Security (“BIS”) licenses previously issued pursuant to the Export Administration Act (“EAA” or “the Act”) or the Regulations in which the person had an interest at the time of his/her conviction.

    1 The Regulations are currently codified in the Code of Federal Regulations at 15 CFR parts 730-774 (2017). The Regulations issued pursuant to the Export Administration Act (50 U.S.C. 4601-4623 (Supp. III 2015) (available at http://uscode.house.gov)) (“EAA” or “the Act”). Since August 21, 2001, the Act has been in lapse and the President, through Executive Order 13222 of August 17, 2001 (3 CFR, 2001 Comp. 783 (2002)), which has been extended by successive Presidential Notices, the most recent being that of August 15, 2017 (82 FR 39005 (Aug. 16, 2017)), has continued the Regulations in effect under the International Emergency Economic Powers Act (50 U.S.C. 1701, et seq. (2012)).

    BIS has received notice of Perry's conviction for violating Section 38 of the AECA, and has provided notice and an opportunity for Perry to make a written submission to BIS, as provided in Section 766.25 of the Regulations. BIS has not received a submission from Perry.

    Based upon my review and consultations with BIS's Office of Export Enforcement, including its Director, and the facts available to BIS, I have decided to deny Perry's export privileges under the Regulations for a period of five years from the date of Perry's conviction. I have also decided to revoke all licenses issued pursuant to the Act or Regulations in which Perry had an interest at the time of his conviction.

    Accordingly, it is hereby ordered:

    First, from the date of this Order until July 20, 2021, Hunter Perry, with a last known address of 173 Red Hawk Drive, Vine Grove, KY 40175, and when acting for or on his behalf, his successors, assigns, employees, agents or representatives (“the Denied Person”), may not, directly or indirectly, participate in any way in any transaction involving any commodity, software or technology (hereinafter collectively referred to as “item”) exported or to be exported from the United States that is subject to the Regulations, including, but not limited to:

    A. Applying for, obtaining, or using any license, license exception, or export control document;

    B. Carrying on negotiations concerning, or ordering, buying, receiving, using, selling, delivering, storing, disposing of, forwarding, transporting, financing, or otherwise servicing in any way, any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or engaging in any other activity subject to the Regulations; or

    C. Benefitting in any way from any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or from any other activity subject to the Regulations.

    Second, no person may, directly or indirectly, do any of the following:

    A. Export or reexport to or on behalf of the Denied Person any item subject to the Regulations;

    B. Take any action that facilitates the acquisition or attempted acquisition by the Denied Person of the ownership, possession, or control of any item subject to the Regulations that has been or will be exported from the United States, including financing or other support activities related to a transaction whereby the Denied Person acquires or attempts to acquire such ownership, possession or control;

    C. Take any action to acquire from or to facilitate the acquisition or attempted acquisition from the Denied Person of any item subject to the Regulations that has been exported from the United States;

    D. Obtain from the Denied Person in the United States any item subject to the Regulations with knowledge or reason to know that the item will be, or is intended to be, exported from the United States; or

    E. Engage in any transaction to service any item subject to the Regulations that has been or will be exported from the United States and which is owned, possessed or controlled by the Denied Person, or service any item, of whatever origin, that is owned, possessed or controlled by the Denied Person if such service involves the use of any item subject to the Regulations that has been or will be exported from the United States. For purposes of this paragraph, servicing means installation, maintenance, repair, modification or testing.

    Third, after notice and opportunity for comment as provided in Section 766.23 of the Regulations, any other person, firm, corporation, or business organization related to Perry by ownership, control, position of responsibility, affiliation, or other connection in the conduct of trade or business may also be made subject to the provisions of this Order in order to prevent evasion of this Order.

    Fourth, in accordance with Part 756 of the Regulations, Perry may file an appeal of this Order with the Under Secretary of Commerce for Industry and Security. The appeal must be filed within 45 days from the date of this Order and must comply with the provisions of Part 756 of the Regulations.

    Fifth, a copy of this Order shall be delivered to Perry and shall be published in the Federal Register.

    Sixth, this Order is effective immediately and shall remain in effect until July 20, 2021.

    Issued this 19th day of December 2017. Karen H. Nies-Vogel, Director, Office of Exporter Services.
    [FR Doc. 2017-28005 Filed 12-27-17; 8:45 am] BILLING CODE P
    DEPARTMENT OF COMMERCE Bureau of Industry and Security In the Matter of: Gerardo Trevino-Moncivais, Inmate Number: 13375-479, D. Ray James Correctional Institution, P.O. Box 2000, Folkston, GA 31537; Order Denying Export Privileges

    On October 18, 2016, in the U.S. District Court for the Southern District of Texas, Gerardo Trevino-Moncivais (“Trevino-Moncivais”) was convicted of violating Section 38 of the Arms Export Control Act (22 U.S.C. 2778 (2012)) (“AECA”). Specifically, Trevino-Moncivais was convicted of knowingly and willfully aiding and abetting the export, attempting to export, and causing to be exported from the United States to Mexico defense articles designated on the United States Munitions List, namely two .22 caliber rifles, a .223 caliber rifle, three .270 caliber rifles, a .308 caliber rifle, a 7MM-08 caliber rifle, three .22 caliber pistols, a .380 caliber pistol and approximately 1,570 rounds of ammunition of various calibers, without the required U.S. Department of State licenses. Trevino-Moncivais was sentenced to 36 months in prison and a special assessment of $100.

    Section 766.25 of the Export Administration Regulations (“EAR” or “Regulations”) 1 provides, in pertinent part, that “[t]he Director of the Office of Exporter Services, in consultation with the Director of the Office of Export Enforcement, may deny the export privileges of any person who has been convicted of a violation of the EAA [Export Administration Act], the EAR, or any order, license, or authorization issued thereunder; any regulation, license or order issued under the International Emergency Economic Powers Act (50 U.S.C. 1701-1706); 18 U.S.C. 793, 794 or 798; section 4(b) of the Internal Security Act of 1950 (50 U.S.C. 783(b)); or section 38 of the Arms Export Control Act (22 U.S.C. 2778).” 15 CFR 766.25(a); see also Section 11(h) of the EAA, 50 U.S.C. 4610(h). The denial of export privileges under this provision may be for a period of up to 10 years from the date of the conviction. 15 CFR 766.25(d); see also 50 U.S.C. 4610(h). In addition, Section 750.8 of the Regulations states that the Bureau of Industry and Security's Office of Exporter Services may revoke any Bureau of Industry and Security (“BIS”) licenses previously issued pursuant to the Export Administration Act (“EAA” or “the Act”) or the Regulations in which the person had an interest at the time of his/her conviction.

    1 The Regulations are currently codified in the Code of Federal Regulations at 15 CFR parts 730-774 (2017). The Regulations issued pursuant to the Export Administration Act (50 U.S.C. 4601-4623 (Supp. III 2015) (available at http://uscode.house.gov)) (“EAA” or “the Act”). Since August 21, 2001, the Act has been in lapse and the President, through Executive Order 13222 of August 17, 2001 (3 CFR, 2001 Comp. 783 (2002)), which has been extended by successive Presidential Notices, the most recent being that of August 15, 2017 (82 FR 39005 (Aug. 16, 2017)), has continued the Regulations in effect under the International Emergency Economic Powers Act (50 U.S.C. 1701, et seq. (2012)).

    BIS has received notice of Trevino-Moncivais's conviction for violating Section 38 of the AECA, and has provided notice and an opportunity for Trevino-Moncivais to make a written submission to BIS, as provided in Section 766.25 of the Regulations. BIS has not received a submission from Trevino-Moncivais.

    Based upon my review and consultations with BIS's Office of Export Enforcement, including its Director, and the facts available to BIS, I have decided to deny Trevino-Moncivais's export privileges under the Regulations for a period of 10 years from the date of Trevino-Moncivais's conviction. I have also decided to revoke all licenses issued pursuant to the Act or Regulations in which Trevino-Moncivais had an interest at the time of his conviction.

    Accordingly, it is hereby ordered:

    First, from the date of this Order until October 18, 2026, Gerardo Trevino-Moncivais, with a last known address of Inmate Number 13375-479, D. Ray James Correctional Institution, P.O. Box 2000, Folkston, GA 31537, and when acting for or on his behalf, his successors, assigns, employees, agents or representatives (“the Denied Person”), may not, directly or indirectly, participate in any way in any transaction involving any commodity, software or technology (hereinafter collectively referred to as “item”) exported or to be exported from the United States that is subject to the Regulations, including, but not limited to:

    A. Applying for, obtaining, or using any license, license exception, or export control document;

    B. Carrying on negotiations concerning, or ordering, buying, receiving, using, selling, delivering, storing, disposing of, forwarding, transporting, financing, or otherwise servicing in any way, any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or engaging in any other activity subject to the Regulations; or

    C. Benefitting in any way from any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or from any other activity subject to the Regulations.

    Second, no person may, directly or indirectly, do any of the following:

    A. Export or reexport to or on behalf of the Denied Person any item subject to the Regulations;

    B. Take any action that facilitates the acquisition or attempted acquisition by the Denied Person of the ownership, possession, or control of any item subject to the Regulations that has been or will be exported from the United States, including financing or other support activities related to a transaction whereby the Denied Person acquires or attempts to acquire such ownership, possession or control;

    C. Take any action to acquire from or to facilitate the acquisition or attempted acquisition from the Denied Person of any item subject to the Regulations that has been exported from the United States;

    D. Obtain from the Denied Person in the United States any item subject to the Regulations with knowledge or reason to know that the item will be, or is intended to be, exported from the United States; or

    E. Engage in any transaction to service any item subject to the Regulations that has been or will be exported from the United States and which is owned, possessed or controlled by the Denied Person, or service any item, of whatever origin, that is owned, possessed or controlled by the Denied Person if such service involves the use of any item subject to the Regulations that has been or will be exported from the United States. For purposes of this paragraph, servicing means installation, maintenance, repair, modification or testing.

    Third, after notice and opportunity for comment as provided in Section 766.23 of the Regulations, any other person, firm, corporation, or business organization related to Trevino-Moncivais by ownership, control, position of responsibility, affiliation, or other connection in the conduct of trade or business may also be made subject to the provisions of this Order in order to prevent evasion of this Order.

    Fourth, in accordance with Part 756 of the Regulations, Trevino-Moncivais may file an appeal of this Order with the Under Secretary of Commerce for Industry and Security. The appeal must be filed within 45 days from the date of this Order and must comply with the provisions of Part 756 of the Regulations.

    Fifth, a copy of this Order shall be delivered to Trevino-Moncivais and shall be published in the Federal Register.

    Sixth, this Order is effective immediately and shall remain in effect until October 18, 2026.

    Issued this 19th day of December 2017. Karen H. Nies-Vogel, Director, Office of Exporter Services.
    [FR Doc. 2017-28003 Filed 12-27-17; 8:45 am] BILLING CODE P
    DEPARTMENT OF COMMERCE Bureau of Industry and Security In the Matter of: Papa Faal, 6308 Decatur Avenue North, Brooklyn Park, MN 55428; Order Denying Export Privileges

    On May 12, 2016, in the U.S. District Court for the District of Minnesota, Papa Faal (“Faal”) was convicted of violating Section 38 of the Arms Export Control Act (22 U.S.C. 2778 (2012)) (“AECA”). Specifically, Faal was convicted of knowingly and willfully conspiring to export from the United States to Gambia semi-automatic rifles designated as defense articles on the United States Munitions List, without the required U.S. Department of State licenses. Faal was sentenced to time served, three years of supervised release, and a $200 assessment.

    Section 766.25 of the Export Administration Regulations (“EAR” or “Regulations”) 1 provides, in pertinent part, that “[t]he Director of the Office of Exporter Services, in consultation with the Director of the Office of Export Enforcement, may deny the export privileges of any person who has been convicted of a violation of the EAA [Export Administration Act], the EAR, or any order, license, or authorization issued thereunder; any regulation, license or order issued under the International Emergency Economic Powers Act (50 U.S.C. 1701-1706); 18 U.S.C. 793, 794 or 798; section 4(b) of the Internal Security Act of 1950 (50 U.S.C. 783(b)); or section 38 of the Arms Export Control Act (22 U.S.C. 2778).” 15 CFR 766.25(a); see also Section 11(h) of the EAA, 50 U.S.C. 4610(h). The denial of export privileges under this provision may be for a period of up to 10 years from the date of the conviction. 15 CFR 766.25(d); see also 50 U.S.C. 4610(h). In addition, Section 750.8 of the Regulations states that the Bureau of Industry and Security's Office of Exporter Services may revoke any Bureau of Industry and Security (“BIS”) licenses previously issued pursuant to the Export Administration Act (“EAA” or “the Act”), or pursuant to the Regulations in which the person had an interest at the time of his/her conviction.

    1 The Regulations are currently codified in the Code of Federal Regulations at 15 CFR parts 730-774 (2017). The Regulations issued pursuant to the Export Administration Act (50 U.S.C. 4601-4623 (Supp. III 2015) (available at http://uscode.house.gov)) (“EAA” or “the Act”). Since August 21, 2001, the Act has been in lapse and the President, through Executive Order 13222 of August 17, 2001 (3 CFR, 2001 Comp. 783 (2002)), which has been extended by successive Presidential Notices, the most recent being that of August 15, 2017 (82 FR 39005 (Aug. 16, 2017)), has continued the Regulations in effect under the International Emergency Economic Powers Act (50 U.S.C. 1701, et seq. (2012)).

    BIS has received notice of Faal's conviction for violating Section 38 of the AECA, and has provided notice and an opportunity for Faal to make a written submission to BIS, as provided in Section 766.25 of the Regulations. BIS has not received a submission from Faal.

    Based upon my review and consultations with BIS's Office of Export Enforcement, including its Director, and the facts available to BIS, I have decided to deny Faal's export privileges under the Regulations for a period of ten (10) years from the date of Faal's conviction. I have also decided to revoke all licenses issued pursuant to the Act or Regulations in which Faal had an interest at the time of his conviction.

    Accordingly, it is hereby ordered:

    First, from the date of this Order until May 12, 2026, Papa Faal, with a last known address of 6308 Decatur Avenue North, Brooklyn Park, MN 55428, and when acting for or on his behalf, his successors, assigns, employees, agents or representatives (“the Denied Person”), may not, directly or indirectly, participate in any way in any transaction involving any commodity, software or technology (hereinafter collectively referred to as “item”) exported or to be exported from the United States that is subject to the Regulations, including, but not limited to:

    A. Applying for, obtaining, or using any license, license exception, or export control document;

    B. Carrying on negotiations concerning, or ordering, buying, receiving, using, selling, delivering, storing, disposing of, forwarding, transporting, financing, or otherwise servicing in any way, any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or engaging in any other activity subject to the Regulations; or

    C. Benefitting in any way from any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or from any other activity subject to the Regulations.

    Second, no person may, directly or indirectly, do any of the following:

    A. Export or reexport to or on behalf of the Denied Person any item subject to the Regulations;

    B. Take any action that facilitates the acquisition or attempted acquisition by the Denied Person of the ownership, possession, or control of any item subject to the Regulations that has been or will be exported from the United States, including financing or other support activities related to a transaction whereby the Denied Person acquires or attempts to acquire such ownership, possession or control;

    C. Take any action to acquire from or to facilitate the acquisition or attempted acquisition from the Denied Person of any item subject to the Regulations that has been exported from the United States;

    D. Obtain from the Denied Person in the United States any item subject to the Regulations with knowledge or reason to know that the item will be, or is intended to be, exported from the United States; or

    E. Engage in any transaction to service any item subject to the Regulations that has been or will be exported from the United States and which is owned, possessed or controlled by the Denied Person, or service any item, of whatever origin, that is owned, possessed or controlled by the Denied Person if such service involves the use of any item subject to the Regulations that has been or will be exported from the United States. For purposes of this paragraph, servicing means installation, maintenance, repair, modification or testing.

    Third, after notice and opportunity for comment as provided in Section 766.23 of the Regulations, any other person, firm, corporation, or business organization related to Faal by ownership, control, position of responsibility, affiliation, or other connection in the conduct of trade or business may also be made subject to the provisions of this Order in order to prevent evasion of this Order.

    Fourth, in accordance with Part 756 of the Regulations, Faal may file an appeal of this Order with the Under Secretary of Commerce for Industry and Security. The appeal must be filed within 45 days from the date of this Order and must comply with the provisions of Part 756 of the Regulations.

    Fifth, a copy of this Order shall be delivered to Faal and shall be published in the Federal Register.

    Sixth, this Order is effective immediately and shall remain in effect until May 12, 2026.

    Issued this 19th day of December 2017. Karen H. Nies-Vogel, Director, Office of Exporter Services.
    [FR Doc. 2017-28004 Filed 12-27-17; 8:45 am] BILLING CODE P
    DEPARTMENT OF COMMERCE Bureau of Industry and Security [17-BIS-0002] In the Matter of: Saeid Yahya Charkhian, Villa 5, Street 1, Arabian Ranches, Dubai, United Arab Emirates, and Caspian Industrial Machinery Supply LLC, No. 2509 Churchill Executive Tower, Business Bay, Dubai, United Arab Emirates, Attention: Saeid Yahya Charkhian; Respondents; Order Relating to Saeid Yahya Charkhian and Caspian Industrial Machinery Supply LLC

    The Bureau of Industry and Security, U.S. Department of Commerce (“BIS”), has notified Saeid Yahya Charkhian, of Dubai, United Arab Emirates (“Charkhian”), and Caspian Industrial Machinery Supply LLC of Dubai, United Arab Emirates (“Caspian”) (collectively the “Respondents”), that it has initiated an administrative proceeding against Respondents pursuant to Section 766.3 of the Export Administration Regulations (the “Regulations”),1 and Section 13(c) of the Export Administration Act of 1979, as amended (the “Act”),2 through the issuance of a Charging Letter to Respondents that allege that Charkhian committed four (4) violations of the Regulations and Caspian committed three (3) violations of the Regulations. Specifically, the charges are:

    1 The Regulations are currently codified in the Code of Federal Regulations at 15 CFR parts 730-774 (2017). The violations alleged occurred in 2012-2013. The Regulations governing the violations at issue are found in the 2012-2013 version of the Code of Federal Regulations, 15 CFR parts 730-774 (2012-2013). The 2017 Regulations govern the procedural aspects of this case.

    2 50 U.S.C. 4601-4623 (Supp. III 2015). Since August 21, 2001, the Act has been in lapse and the President, through Executive Order 13222 of August 17, 2001 (3 CFR, 2001 Comp. 783 (2002)), which has been extended by successive Presidential Notices, the most recent being that of August 15, 2017 (82 FR 39005 (Aug. 16, 2017)), has continued the Regulations in effect under the International Emergency Economic Powers Act (50 U.S.C. 1701, et seq.) (2012).

    As to both Charkhian and Caspian:

    Charges 1-3 15 CFR 764.2(e)—Acting With Knowledge

    1. On at least three occasions between on or about March 27, 2012, and on or about October 5, 2013, Charkhian and Caspian (collectively, the “Respondents”) transferred, forwarded, ordered, bought and/or sold items subject to the Regulations and exported or to be exported from the United States to Iran, via the Netherlands and the United Arab Emirates (“UAE”), with knowledge 3 that a violation of the Regulations had occurred or was about or intended to occur in connection with the items. Specifically, the Respondents acted with knowledge of a violation of the Regulations when they sold, transferred and/or forwarded to, and/or ordered or bought for, end users in Iran items that the Respondents procured from the United States through an intermediary company located in the Netherlands. These U.S.-origin items, including masking wax, lithium batteries, and zirconia crucibles, were designated EAR99 under the Regulations 4 and valued in total at nearly $190,000.

    3 Title 15 CFR 772.1 defines “knowledge” as “[k]nowledge of a circumstance (the term may be a variant, such as “know,” “reason to know,” or “reason to believe”) includes not only positive knowledge that the circumstance exists or is substantially certain to occur, but also an awareness of a high probability of its existence or future occurrence. Such awareness is inferred from evidence of the conscious disregard of facts known to a person and is also inferred from a person's willful avoidance of facts.

    4 “EAR99” is a designation for items subject to the Regulations but not listed on the Commerce Control List. 15 CFR 734.3(c).

    2. The Respondents' actions violated the long-standing and widely-known U.S. embargo against Iran. Under Section 746.7 of the Regulations, BIS prohibits the export or reexport to Iran of any item subject to both the Regulations and the Iranian Transactions and Sanctions Regulations (“ITSR”), if the transaction is prohibited by the ITSR and has not been authorized by the U.S. Department of the Treasury's Office of Foreign Assets Control (“OFAC”), which administers the ITSR.5 At all times pertinent hereto, the ITSR prohibited, inter alia, the unauthorized exportation, reexportation, sale or supply, directly or indirectly, from the United States to Iran of any goods, technology, or services. This broad prohibition included restrictions on the exportation, reexportation, sale or supply of any goods, technology, or services from the United States to a third country, such as the Netherlands or the UAE, undertaken with knowledge or reason to know that they were intended for supply, transshipment, or reexportation, directly or indirectly, to Iran. 31 CFR 560.204. As set further below, the Respondents knew that the items at issue were ultimately destined for Iran and they knew of the U.S. embargo against Iran, but they did not seek or obtain the required U.S. Government authorizations in connection with any of the exports or reexports described herein.

    5 31 CFR part 560 (2012-2013). The ITSR formerly were known as the Iranian Transactions Regulations (“ITR”). On October 22, 2012, OFAC renamed the ITR as the ITSR and reissued them in relevant part. See 77 FR 64664 (Oct. 22, 2012).

    3. Charkhian, an Iranian national, personally participated in each of the transactions at issue and, in addition, was Managing Director and part owner of Caspian, a UAE trading company, at all times pertinent hereto. Upon information and belief, Charkhian has, in fact, been Managing Director of Caspian since in or about May 2001, when Caspian was formed in the UAE. Through the Respondents' many years of business in the UAE, they were aware of the U.S. embargo against Iran at the times of the transactions at issue in 2012-2013. Moreover, the Respondents had specifically acknowledged the existence of the embargo, for example, when they completed an end-user agreement with a European subsidiary of a U.S. company that included statements related to the need for compliance with “U.S. Export Administration Regulations.”

    4. Despite this knowledge, the Respondents sought to procure for and supply to customers in Iran U.S.-origin items without the required U.S. Government authorization and did so through transactions that they structured to conceal from U.S. suppliers the Respondents' actual role in the transactions and that the items were ultimately destined for Iran. On or about March 27, 2012, the Respondents transferred or forwarded masking wax, an item subject to the Regulations and the ITSR and valued at $2,570, from the UAE to Iran without the required U.S. Government authorization. The events leading to this knowing violation began in or about November 2011, when the Respondents received an inquiry from an Iranian entity seeking masking wax, a protective, strippable coating used in electroplating, for capping ends of tubing, and for sealing the ends of electric cables. The Respondents provided the request to a company in the Netherlands, which indicated that it “only [had a] source in USA for this product” but that the product was “on stock in the U.S.” and could be delivered in about two weeks. The Respondents' Iranian customer Mavadkaran Jahed Noavar Company (“Mavadkaran”), which is part of the Iran-based conglomerate the MAPNA Group, subsequently issued a purchase order on or about February 13, 2012, to the Respondents for 100 lbs. of masking wax, which the Respondents then purchased from the United States through the Dutch reseller. Payment information indicates that the Respondents sold the items to Mavadkaran on or about February 21, 2012. The items were exported from the United States on or about February 23, 2012. After arriving in the Netherlands, the items were transshipped on or about March 14, 2012, to the Respondents in the UAE. On or about March 27, 2012, the Respondents then transferred or forwarded the items to Iran.

    5. On a second occasion, between in or about July 2012, and in or about October 2012, the Respondents similarly ordered and bought lithium batteries from the United States through the same Dutch intermediary company and then sold, transferred and/or forwarded the batteries to an end user in Iran. The lithium batteries were subject to the Regulations and the ITSR and were valued in total at $75,000. In or about January 2012, the Respondents had asked the Dutch company to provide a quote for six orders of 1,000 batteries which the Respondents' customer had tested and sought for a pending project in Iran. After receiving pricing information from the Dutch company, the Respondents bought or ordered the 1,000 lithium batteries on or about July 15, 2012, which was followed by a pro forma invoice from the Dutch company to the Respondents for the 1,000 batteries about one month later. On or about October 3, 2012, the U.S. supplier, which had not been informed that the items were to be transshipped to Iran, filed an Automated Export System (“AES”) record indicating that 1,000 lithium batteries were being exported from the United States for the ultimate destination of the Netherlands. As part of email correspondence between on or about October 15-17, 2012, following the transshipment of the items from the Netherlands to the Respondents in the UAE, the Dutch company provided the Respondents a certificate of origin from the U.S. company confirming the items were of U.S.-origin, as well as an invoice identifying the items as manufactured in the United States. A Caspian invoice and packing list dated October 17, 2012, indicated that the Respondents were selling, transferring and/or forwarding 1,000 lithium batteries to a buyer in Tehran, Iran, that was related to the Iran National Oil Company 6 and Iran National Drilling Company,7 both of which are Iranian-Government owned corporations. The invoice also confirmed that the items were of U.S.-origin. A few days later, in an email dated on or about October 29, 2012, an Iranian party confirmed that it had received the 1,000 lithium batteries from the Respondents.

    6 Also known as National Iranian Oil Company or “NIOC.” NIOC was designated a Specially Designated National (“SDN”) by OFAC on December 4, 2008, but was removed from the SDN List on January 16, 2016, as part of the Joint Comprehensive Plan of Action (“JCPOA”).

    7 Also known as the National Iranian Drilling Company or “NIDC.”

    6. Finally, on a third occasion, between in or about August 2013, and in or about October 2013, the Respondents ordered and bought approximately 196 flat bottom zirconia crucibles from the United States through the same Dutch intermediary company and then sold, transferred or forwarded the crucibles to an end user in Iran. The crucibles are subject to the Regulations and the ITSR, can be used in nuclear material casting, such as casting uranium, and were valued at $112,000. The events leading up to this knowing violation began when the Respondents received an order request from Iranian company Mavadkaran on or about April 23, 2013. Mavadkaran requested that the purchase order be issued to Mapna International F.Z.E. (“Mapna”), a related company in the UAE, which was listed as the buyer instead of Mavadkaran. The Respondents' pro forma invoice dated April 23, 2013, indicated that the items would be of U.S.-origin. On or about May 9, 2013, the Respondents forwarded the order request to the Dutch company, and approximately one week later the Respondents received a price quote for the items. On or about June 3, 2013, Mapna issued a purchase order to the Respondents stating that the items were to be delivered by vessel to Iran and that the Respondents should provide a certification of origin confirming the items were of U.S.-origin, certified by the local chamber of commerce. After the Dutch company placed a corresponding order with a U.S. supplier at the Respondents' request, the zirconia crucibles were exported from the United States to the Netherlands on or about August 20, 2013. The Dutch company transshipped the items to the UAE on or about September 17, 2013. An email dated on or about October 5, 2013, from Charkhian to a customs broker indicated that the Respondents had forwarded or transferred the items for delivery to Iran.

    7. In so doing, the Respondents committed three (3) violations of Section 764.2(e) of the Regulations and are jointly and severally liable for those violations.

    As to Charkhian only:

    Charge 4 15 CFR 764.2(g)—False or Misleading Statement

    8. On or about December 16, 2014, Charkhian made a false or misleading statement to BIS and other U.S. Government officials in connection with an action subject to the Regulations and/or in connection with effecting an export, reexport or other activity subject to the Regulations. While being interviewed by BIS on that date as part of a post-shipment verification (unrelated to Charges 1-3 above), Charkhian represented that he had never conducted any business with Iran at any time since 2001, and had not purchased anything from the United States during that time period. These statements contradicted the transactions and related transaction documents and correspondence detailed in Charges 1-3 above, which clearly indicate that at least on three occasions during 2012-2013, Charkhian and his company, Caspian, knowingly procured items from the United States or of U.S.-origin for Iranian customers through an intermediary party in the Netherlands.

    9. Pursuant to Section 764.2(g) of the Regulations, no person may make any false or misleading representation or statement, or falsify or conceal any material fact, either directly or indirectly to BIS or any official of any other U.S. Government agency in connection with an action subject to the Regulations as set forth in (g)(1)(i) or in connection with effecting an export, reexport or other activity subject to the Regulations as set forth in (g)(1)(iii).

    10. In so doing, Charkhian committed one (1) violation of Section 764.2(g) of the Regulations.

    Whereas, BIS and Respondents have entered into a Settlement Agreement pursuant to Section 766.18(b) of the Regulations, whereby they agreed to settle this matter in accordance with the terms and conditions set forth therein; and

    Whereas, I have approved of the terms of such Settlement Agreement; it is therefore ordered:

    FIRST, that for a period of twelve (12) years from the date of this Order, Saeid Yahya Charkhian, with a last known address of Villa 5, Street 1, Arabian Ranches, Dubai, United Arab Emirates, and Caspian Industrial Machinery Supply LLC, No. 2509 Churchill Executive Tower, Business Bay, Dubai, United Arab Emirates, and when acting for or on their behalf, their successors, assigns, directors, officers, employees, representatives, or agents (each a “Denied Person” and collectively the “Denied Persons”), may not, directly or indirectly, participate in any way in any transaction involving any commodity, software or technology (hereinafter collectively referred to as “item”) exported or to be exported from the United States that is subject to the Regulations, or in any other activity subject to the Regulations, including, but not limited to:

    A. Applying for, obtaining, or using any license, license exception, or export control document;

    B. Carrying on negotiations concerning, or ordering, buying, receiving, using, selling, delivering, storing, disposing of, forwarding, transporting, financing, or otherwise servicing in any way, any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or engaging in any other activity subject to the Regulations; or

    C. Benefitting in any way from any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or from any other activity subject to the Regulations.

    SECOND, that no person may, directly or indirectly, do any of the following:

    A. Export or reexport to or on behalf of a Denied Person any item subject to the Regulations;

    B. Take any action that facilitates the acquisition or attempted acquisition by a Denied Person of the ownership, possession, or control of any item subject to the Regulations that has been or will be exported from the United States, including financing or other support activities related to a transaction whereby a Denied Person acquires or attempts to acquire such ownership, possession or control;

    C. Take any action to acquire from or to facilitate the acquisition or attempted acquisition from a Denied Person of any item subject to the Regulations that has been exported from the United States;

    D. Obtain from a Denied Person in the United States any item subject to the Regulations with knowledge or reason to know that the item will be, or is intended to be, exported from the United States; or

    E. Engage in any transaction to service any item subject to the Regulations that has been or will be exported from the United States and which is owned, possessed or controlled by a Denied Person, or service any item, of whatever origin, that is owned, possessed or controlled by a Denied Person if such service involves the use of any item subject to the Regulations that has been or will be exported from the United States. For purposes of this paragraph, servicing means installation, maintenance, repair, modification or testing.

    THIRD, that, after notice and opportunity for comment as provided in Section 766.23 of the Regulations, any person, firm, corporation, or business organization related to a Denied Person by affiliation, ownership, control, or position of responsibility in the conduct of trade or related services may also be made subject to the provisions of the Order.

    FOURTH, all licenses issued pursuant to the Act or Regulations in which any of the Respondents had an interest as of the date of this Order are revoked.

    FIFTH, Respondents shall not take any action or make or permit to be made any public statement, directly or indirectly, denying the allegations in the Charging Letter or the Order. The foregoing does not affect Respondents' testimonial obligations in any proceeding, nor does it affect its right to take legal or factual positions in civil litigation or other civil proceedings in which the U.S. Department of Commerce is not a party.

    SIXTH, that the Charging Letter, the Settlement Agreement, and this Order shall be made available to the public.

    SEVENTH, that this Order shall be served on Respondents, and shall be published in the Federal Register.

    This Order, which constitutes the final agency action in this matter, is effective immediately.

    Issued this 21st day of December, 2017. Richard R. Majauskas, Deputy Assistant Secretary of Commerce for Export Enforcement performing the non-exclusive functions and duties of the Assistant Secretary of Commerce for Export Enforcement.
    [FR Doc. 2017-28112 Filed 12-27-17; 8:45 am] BILLING CODE Pf
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration Availability of Final Evaluation Findings of State Coastal Programs and National Estuarine Research Reserves AGENCY:

    Office for Coastal Management (OCM), National Ocean Service (NOS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce (DOC).

    ACTION:

    Notice.

    SUMMARY:

    Notice is hereby given of the availability of final evaluation findings of state coastal programs and national estuarine research reserves. The NOAA Office for Coastal Management has completed review of the Coastal Zone Management Program evaluations for the states of New York, New Hampshire, Washington, and Maine. The states were found to be implementing and enforcing their federally approved Coastal Zone Management Programs, addressing the national coastal management objectives identified in CZMA Section 303(2)(A)-(K), and adhering to the programmatic terms of their financial assistance awards.

    The NOAA Office for Coastal Management has completed review of the National Estuarine Research Reserve evaluations for South Slough, Jacques Cousteau, Wells, and Narragansett Bay. The reserves were found to be adhering to programmatic requirements of the National Estuarine Research Reserve System. Copies of these final evaluation findings may be downloaded at http://coast.noaa.gov/czm/evaluations/evaluation_findings/index.html or by submitting a written request to the person identified under FOR FURTHER INFORMATION CONTACT.

    FOR FURTHER INFORMATION CONTACT:

    Carrie Hall, Evaluator, Planning and Performance Measurement Program, Office for Coastal Management, NOS/NOAA, 1305 East-West Highway, 11th Floor, N/OCM1, Silver Spring, Maryland 20910, or [email protected]

    Dated: December 19, 2017. Keelin Kuipers, Acting Deputy Director, Office for Coastal Management, National Ocean Service, National Oceanic and Atmospheric Administration.

    Federal Domestic Assistance Catalog 11.419

    Coastal Zone Management Program Administration

    [FR Doc. 2017-28111 Filed 12-27-17; 8:45 am] BILLING CODE 3510-08-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration (NOAA) Marine Protected Areas Federal Advisory Committee; Public Meeting AGENCY:

    Office of National Marine Sanctuaries (ONMS), National Ocean Service (NOS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce (DOC).

    ACTION:

    Notice of open meeting.

    SUMMARY:

    Notice is hereby given of a meeting of the Marine Protected Areas Federal Advisory Committee (Committee) in San Francisco, California.

    DATES:

    The meeting will be held on Wednesday, January 17, 2018, from 9:00 a.m. to 5:00 p.m. through Friday, January 19, 2018, at 1 p.m. These times and the agenda topics described below are subject to change. Refer to the web page listed below for the most up-to-date meeting agenda.

    ADDRESSES:

    The meeting will be held at the Argonaut Hotel, 495 Jefferson Street at Hyde, San Francisco, CA 94109.

    FOR FURTHER INFORMATION CONTACT:

    Charles M. Wahle, Ph.D., Designated Federal Officer, MPA FAC, National Marine Protected Areas Center, 99 Pacific St., Suite 100-F, Monterey, CA 93940. (Phone: 831-647-6460; Fax: 831-647-1732; email: [email protected]; or visit the National MPA Center website at http://marineprotectedareas.noaa.gov/fac).

    SUPPLEMENTARY INFORMATION:

    The Committee, composed of external, knowledgeable representatives of stakeholder groups, was established by the Department of Commerce (DOC) to provide advice to the Secretaries of Commerce and the Interior on implementation of Section 4 of Executive Order 13158, on marine protected areas (MPAs). The meeting is open to the public, and public comment will be accepted from 4:30 p.m. to 5:00 p.m. on Wednesday, January 17, 2018. In general, each individual or group will be limited to a total time of five (5) minutes. If members of the public wish to submit written statements, they should be submitted to the Designated Federal Officer by Friday, January 12, 2018.

    Matters To Be Considered: This meeting will focus on: (i) Refining the Committee's charge and work plans for 2018-2019; (ii) identifying ways to enhance the impact of the Committee's recommendations and products; (iii) engaging with National Marine Sanctuary Advisory Council Chairs and other MPA programs to explore common approaches to emerging issues facing US MPAs; and, (iv) establishing subcommittees and working groups, as needed, to address the Committee's new charge. The agenda is subject to change. The latest version will be posted at http://marineprotectedareas.noaa.gov/fac.

    Dated: December 21, 2017. Rebecca Holyoke, Deputy Director, Office of National Marine Sanctuaries, National Ocean Service, National Oceanic and Atmospheric Administration.
    [FR Doc. 2017-28108 Filed 12-27-17; 8:45 am] BILLING CODE 3510-NK-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration Evaluation of National Estuarine Research Reserve AGENCY:

    Office for Coastal Management (OCM), National Ocean Service (NOS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce (DOC).

    ACTION:

    Notice.

    SUMMARY:

    The National Oceanic and Atmospheric Administration (NOAA), Office for Coastal Management will hold a public meeting to solicit comments for the performance evaluation of the Padilla Bay National Estuarine Research Reserve.

    DATES:

    Padilla Bay National Estuarine Research Reserve Evaluation: The public meeting will be held on Wednesday, February 28, 2018, and written comments must be received on or before Friday, March 9, 2018.

    For the specific date, time, and location of the public meetings, see SUPPLEMENTARY INFORMATION.

    ADDRESSES:

    You may submit comments on the reserves and coastal program NOAA intends to evaluate by any of the following methods:

    Public Meeting and Oral Comments: A public meeting will be held in Mt. Vernon, Washington for the Padilla Bay Reserve. For the specific location, see SUPPLEMENTARY INFORMATION.

    Written Comments: Please direct written comments to Ralph Cantral, Senior Advisor, NOAA Office for Coastal Management, 1305 East West Highway N/OCM1, Silver Spring, MD 20910, or via email to [email protected]

    FOR FURTHER INFORMATION CONTACT:

    Ralph Cantral, Senior Advisor, Policy, NOAA Office for Coastal Management, (240) 543-0729, 2234 South Hobson Avenue, Charleston, South Carolina 29405-2413, or via email to [email protected] Copies of the previous evaluation findings, Management Plan, and Site Profile may be viewed and downloaded on the internet at http://coast.noaa.gov/czm/evaluations. A copy of the evaluation notification letter and most recent performance report may be obtained upon request by contacting Ralph Cantral.

    SUPPLEMENTARY INFORMATION:

    Sections 312 and 315 of the Coastal Zone Management Act (CZMA) require NOAA to conduct periodic evaluations of federally-approved National Estuarine Research Reserves. The process includes a public meeting, consideration of written public comments and consultations with interested Federal, state, and local agencies and members of the public. For the evaluation of National Estuarine Research Reserves, NOAA will consider the extent to which the state has met the national objectives, adhered to its management plan approved by the Secretary of Commerce, and adhered to the terms of financial assistance under the Coastal Zone Management Act. When the evaluation is completed, NOAA's Office for Coastal Management will place a notice in the Federal Register announcing the availability of the Final Evaluation Findings.

    Specific information on the periodic evaluation of reserves that are the subject of this notice are detailed below as follows:

    Padilla Bay National Estuarine Research Reserve Evaluation

    You may participate or submit oral comments at the public meeting scheduled as follows:

    Date: Wednesday, February 28, 2018.

    Time: 7:00 p.m., local time.

    Location: Padilla Bay Reserve Interpretive Center, 10441 Bayview-Edison Road, Mt. Vernon, WA 98273.

    Written comments must be received on or before March 9, 2018.

    Dated: December 18, 2017. Keelin Kuipers, Acting Deputy Director, Office for Coastal Management, National Ocean Service, National Oceanic and Atmospheric Administration.

    Federal Domestic Assistance Catalog 11.419

    Coastal Zone Management Program Administration

    [FR Doc. 2017-28110 Filed 12-27-17; 8:45 am] BILLING CODE 3510-08-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XF460 Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to a Pile Driving Activities for Waterfront Repairs at the U.S. Coast Guard Station Monterey, Monterey, California AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Notice; issuance of an incidental harassment authorization.

    SUMMARY:

    In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA) as amended, notification is hereby given that NMFS has issued an incidental harassment authorization (IHA) to the U.S. Coast Guard (USCG) to incidentally harass, by Level B harassment only, marine mammals during pile driving activities associated with waterfront repairs at the USCG Monterey Station in Monterey, California.

    DATES:

    This Authorization is applicable from December 20, 2017 through October 15, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Stephanie Egger, Office of Protected Resources, NMFS, (301) 427-8401. Electronic copies of the applications and supporting documents, as well as a list of the references cited in this document, may be obtained online at www.nmfs.noaa.gov/pr/permits/incidental/construction.htm. In case of problems accessing these documents, please call the contact listed above.

    SUPPLEMENTARY INFORMATION:

    Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce (as delegated to NMFS) to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are issued or, if the taking is limited to harassment, a notice of a proposed authorization is provided to the public for review.

    An authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth.

    NMFS has defined “negligible impact” in 50 CFR 216.103 as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.

    The MMPA states that the term “take” means to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal.

    Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).

    National Environmental Policy Act

    In compliance with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, NMFS reviewed our action (i.e., the issuance of an incidental harassment authorization) with respect to potential impacts on the human environment. Accordingly, NMFS reviewed and adopted the USCG's Supplemental Environmental Assessment entitled Supplemental Environmental Assessment for Waterfront Repairs at U.S. Coast Guard Station Monterey, Monterey, California, and signed a Finding of No Significant Impact on November 9, 2017.

    Summary of Request

    On February 10, 2017, NMFS received a request from the USCG for an IHA to take marine mammals incidental to pile driving activities for waterfront restoration, at the USCG Station Monterey in Monterrey, California. USCG's request is for take of eight species of marine mammals, by Level B harassment. Neither USCG nor NMFS expect mortality to result from this activity and, therefore, an IHA is appropriate.

    NMFS previously issued an IHA to the USCG for similar work (79 FR 57052; September 24, 2014). However, no work was conducted under that IHA.

    Description of Specific Activity

    USCG Station Monterey occupies an upland site and adjacent waterside structures including a 1,700-foot breakwater, a wharf constructed over the breakwater, and floating docks to the east of the wharf in Monterey Harbor, Monterey, California. The USCG intends to conduct maintenance on the existing wharf, which is used to berth vessels that are critical to support USCG Station Monterey's mission.

    The planned project requires replacement of 17 timber (16 to 18-in in diameter) piles including removal of the existing timber deck, replacing stringers, steel pipe caps, steel support beams, and hardware in order to access the timber piles. The timber piles will be removed using vibratory pile driving. Each timber pile will be replaced with a 14-in steel pipe pile installed using a vibratory hammer (the preferred method) and each pipe pile will be positioned and installed in the footprint of the extracted timber pile. Pile proofing will be conducted via impact hammer. If, due to substrate or breakwater armor, a pipe pile is unable to be driven to 30 feet below the mud line using a vibratory hammer, then an impact hammer will be used; and if the pile cannot be driven with an impact hammer, the pipe pile would be posted onto the armor stone. The steel pipe piles would not be filled with concrete. Pile installation would be adjacent to a rock jetty that would provide substantial underwater shielding of sound transmission to areas north (or through the jetty).

    Pile-driving activities are expected to occur for an estimated minimum of three to a maximum of eight days of the total construction time. It is assumed that driving time would be approximately 20 minutes (min) per pile for vibratory or impact pile driving. It is assumed that vibratory extraction of the existing piles would take approximately 10 min per pile. Pile driving and extraction would therefore result in an estimated of 240 min per day (4 hours (hrs)); 510 min for the total project or approximately 8.5 hrs. In-water noise from pile driving activities will result in the take, by Level B harassment only, of eight species of marine mammals.

    A detailed description of the planned pile driving project is provided in the Federal Register notice for the proposed IHA (82 FR 42986; September 13, 2017). Since that time, no changes have been made to the planned USCG activities. Therefore, a detailed description is not provided here. Please refer to that Federal Register notice for the description of the specific activity.

    Comments and Responses

    A notice of NMFS's proposal to issue an IHA to the USCG was published in the Federal Register on September 24, 2014 (79 FR 57052). That notice described, in detail, USCG activity, the marine mammal species that may be affected by the activity, and the anticipated effects on marine mammals. During the 30-day public comment period, NMFS received comments from the Marine Mammal Commission (Commission).

    Comment 1: NMFS received a comment from the Commission and while the Commission agrees with NMFS's determinations, it recommends that NMFS follow NMFS's policy of a 24-hour reset for enumerating the number of marine mammals that could be taken during the planned activities by applying standard rounding rules before summing the numbers of estimated takes across survey sites and survey days.

    Response 1: Calculating predicted take is not an exact science and there are arguments for using different mathematical approaches in different situations, and for making qualitative adjustments in other situations. NMFS is currently engaged in developing a protocol to help guide its take calculations given particular situations and circumstances. We believe, however, that the methodology for this action is appropriate and is not at odds with the 24-hour reset policy the Commission references.

    Comment 2: The Commission recommends NMFS include previous mitigation and monitoring measures from the 2014 IHA (e.g., vessel based monitoring, additional baseline monitoring) as well as clarifying the number of Protected Species Observers (PSOs) that will be used for the project and where the PSOs would be positioned for the most effective monitoring.

    Response: As discussed with the Commission, NMFS has incorporated or expanded on these measures in the IHA.

    USCG shall conduct in-situ monitoring during the installation of five piles and removal of five piles. USCG shall adjust Level B harassment zones of influence (ZOIs) as necessary where received underwater sound pressure levels (SPLs) are higher than 160 decibels (dB) root mean square (rms) and 120 dB (rms) re 1 micro Pascal (µPa) for impulse noise sources (impact pile driving) and non-impulses noise sources (vibratory pile driving), respectively. USCG shall adjust Level A harassment zones based on measured SELs as necessary.

    USCG shall employ at least three NMFS-approved PSOs to conduct marine mammal monitoring for its construction project.

    PSOs shall conduct baseline monitoring for two days during the week prior to pile removal and driving.

    During pile removal or installation, at least three PSOs shall be used, and positioned such that each monitor has the best vantage point available, including the USCG pier, jetty, adjacent docks within the harbor, to maintain an excellent view of the exclusion zone and adjacent areas during the survey period. Monitors would be equipped with radios or cell phones for maintaining contact with work crews.

    Vessel-based visual marine mammal monitoring within the 120 dB and 160 dB ZOIs shall be conducted during 10 percent of the vibratory pile driving and removal and impact pile driving activities, respectively.

    Comment 3: The Commission and NMFS discussed effectiveness of the sound attenuation devices, which resulted in a change from a 10 dB reduction to 5 dB during impact pile driving. The adjusted source levels decreased the zones for both Level A and Level B harassment, but did not change the number of authorized takes.

    Response 3: As agreed upon with the Commission, NMFS outlined the justification for the adjusted sources levels in the final IHA.

    Comment 4: The Commission also recommended the NMFS re-evaluate the USCG hydroacoustic monitoring plan to ensure the acoustic thresholds, various metrics, and methods are current.

    Response 4: As agreed upon with the Commission, NMFS requested the USCG update their hydroacoustic monitoring plan to ensure it is current. Those revisions included ensuring the appropriate thresholds and weighting parameters, hearing ranges, and functional hearing group delineations are used and distances reported accordingly (including for cumulative sound exposure levels), increasing the measurement capabilities from 10 to 20 kHz, ensuring ambient conditions are recorded appropriately (e.g., in continuous 10-minute intervals), ensuring the impulse duration is reported and represents the duration that contains 90 percent of pulse energy (including using the appropriate recording devices to obtain those measurements), and reporting the depth of the 10-m hydrophone.

    Description of Marine Mammals in the Area of Specified Activities

    The marine mammal species under NMFS's jurisdiction that have the potential to occur in the construction area include California sea lion (Zalophus californianus), Pacific harbor seal (Phoca vitulina), harbor porpoise (Phocoena phocoena), Risso's dolphin (Grampus griseus), bottlenose dolphin (Tursiops truncates), killer whale (Orcinus orca), gray whale (Megaptera novaengliae), humpback whale (Eschrichtius robustus), and southern sea otters (Enhydra lutris nereis). The southern sea otter is managed by the U.S. Fish and Wildlife Service and not discussed further in this authorization. Humpback whales are protected under the Endangered Species Act (ESA). Pertinent information for each of these species is presented in this document to provide the necessary background to understand their demographics and distribution in the area.

    Table 1—Marine Mammal Species Potentially Present in Region of Activity Common name Scientific name Stock ESA/
  • MMPA
  • status;
  • strategic
  • (Y/N) 1
  • Stock abundance
  • (CV, Nmin,
  • most recent
  • abundance
  • survey) 2
  • PBR Annual
  • M/SI 3
  • Order Cetartiodactyla—Cetacea—Superfamily Mysticeti (baleen whales) Family Eschrichtiidae Gray whale Eschrichtius robustus Eastern North Pacific -; N 20,990 (0.05; 20,125; 2011) 624 132 Family Balaenidae Humpback whale Megaptera novaeangliae novaeangliae California/Oregon/Washington E; D 1,918 (0.03; 1,855; 2011) 11.0 ≥5.5 Superfamily Odontoceti (toothed whales, dolphins, and porpoises) Family Delphinidae Killer whale Orcinus orca Eastern North Pacific Offshore -; N 240 (0.49; 162; 2008) 1.6 0 Killer whale Orcinus orca West Coast Transient -; N 243 (na; 243; 2009) 2.4 0 Risso's dolphin Grampus griseus California/Oregon/Washington -; N 6,336 (0.32; 4,817; 2014) 46 ≥3.7 Bottlenose dolphin Tursiops truncatus California Coastal -; N 453 (0.06; 346; 2011) 2.7 ≥2.0 Family Phocoenidae (porpoises) Harbor Porpoise Phocoena phocoena Monterey Bay -; N 3,715 (0.51; 2,480; 2011) 25 0 Order Carnivora—Superfamily Pinnipedia Family Otariidae (eared seals and sea lions) California sea lion Zalophus californianus U.S. -; N 296,750 (na; 153,337; 2011) 9,200 389 Family Phocidae (earless seals) Harbor seal Phoca vitulina California -; N 30,968 (na; 27,348; 2012) 1,641 43 1 Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is automatically designated under the MMPA as depleted and as a strategic stock. 2 NMFS marine mammal stock assessment reports online at: www.nmfs.noaa.gov/pr/sars/. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable. 3 These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial fisheries, ship strike). Annual mortality/serious injury (M/SI) often cannot be determined precisely and is in some cases presented as a minimum value or range. A CV associated with estimated mortality due to commercial fisheries is presented in some cases.

    A detailed description of the of the species likely to be affected by the USCG's waterfront project, including brief introductions to the species and relevant stocks as well as available information regarding population trends and threats, and information regarding local occurrence, were provided in the Federal Register notice for the proposed IHA (82 FR 42986; September 13, 2017). Since that time, we are not aware of any changes in the status of these species and stocks; therefore, detailed descriptions are not provided here. However, information on a recent rare occurrence of offshore killer whales was not previously included in the proposed IHA and therefore is described below.

    Although more of a rare occurrence, approximately 25 offshore killer whales were observed in December 2016 in Monterey Bay. Offshore pods are usually found in groups of 30-60 or more individuals and they are seldom seen in protected coastal waters. However, when observed in Monterey Bay, offshore killer whales have been observed during the winter.

    Please refer to that Federal Register notice for all other species descriptions. Please also refer to NMFS' website (www.nmfs.noaa.gov/pr/species/mammals/) for generalized species accounts.

    Potential Effects of Specified Activities on Marine Mammals and Their Habitat

    The effects of underwater noise from pile driving activities for the USCG's waterfront restoration project have the potential to result in behavioral harassment of marine mammals in the vicinity of the action area. The project would not result in permanent impacts to habitats used directly by marine mammals, such as the adjacent jetty that is used as a haulout site by pinnipeds, but may have potential short-term impacts to food sources such as forage fish and minor impacts on turbidity during installation and removal of piles, etc. In addition, a concurrence letter was issued by NMFS (2013) (and still applies) concluding that the USCG's action would adversely affect EFH for various Federally managed fish species, including a temporary increase in suspended sediments in the water column from pile driving and removal, conversion of soft bottom habitat to artificial substrate, and an increase in underwater sound levels in the water column associated with pile driving. However, the project includes measures to avoid, minimize, or otherwise offset adverse effects, such that NMFS has no further EFH conservation recommendations to provide (NOAA 2013).

    The Federal Register notice for the proposed IHA (82 FR 42986; September 13, 2017) included additional discussion of the effects of anthropogenic noise on marine mammals, therefore that information is not repeated here; please refer to the Federal Register notice (82 FR 42986; September 13, 2017) for that information.

    Estimated Take

    This section provides an estimate of the number of incidental takes for authorization through this IHA, which will inform both NMFS's consideration of whether the number of takes is “small” and the negligible impact determination.

    Harassment is the only type of take expected to result from these activities. Except with respect to certain activities not pertinent here, section 3(18) of the MMPA defines “harassment” as any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).

    Authorized takes would be by Level B harassment only, in the form of disruption of behavioral patterns for individual marine mammals resulting from exposure to noise from pile driving and removal activities. Based on the nature of the activity and the anticipated effectiveness of the mitigation measures (i.e., shutdown measures—discussed in detail below in Mitigation section), Level A harassment is neither anticipated nor authorized.

    As described previously, no mortality is anticipated or authorized for this activity. Below we describe how the take is estimated.

    Described in the most basic way, we estimate take by considering: (1) Acoustic thresholds above which NMFS believes the best available science indicates marine mammals will be behaviorally harassed or incur some degree of hearing impairment; (2) the area or volume of water that will be ensonified above these levels in a day; (3) the density or occurrence of marine mammals within these ensonified areas; and, (4) and the number of days of activities. Below, we describe these components in more detail and present the take estimate.

    Acoustic Thresholds

    Using the best available science, NMFS has developed acoustic thresholds that identify the received level of underwater sound above which exposed marine mammals would be reasonably expected to be behaviorally harassed (equated to Level B harassment) or to incur PTS of some degree (equated to Level A harassment).

    Level B Harassment for non-explosive sources—Though significantly driven by received level, the onset of behavioral disturbance from anthropogenic noise exposure is also informed to varying degrees by other factors related to the source (e.g., frequency, predictability, duty cycle), the environment (e.g., bathymetry), and the receiving animals (hearing, motivation, experience, demography, behavioral context) and can be difficult to predict (Southall et al., 2007, Ellison et al., 2011). Based on what the available science indicates and the practical need to use a threshold based on a factor that is both predictable and measurable for most activities, NMFS uses a generalized acoustic threshold based on received level to estimate the onset of behavioral harassment. NMFS predicts that marine mammals are likely to be behaviorally harassed in a manner we consider Level B harassment when exposed to underwater anthropogenic noise above received levels of 120 dB re 1 μPa (rms) for continuous (e.g., vibratory pile-driving, drilling) sources and above 160 dB re 1 μPa (rms) for non-explosive impulsive (e.g., seismic airguns) or intermittent (e.g., scientific sonar) sources. USCG's planned activity includes the use of continuous (vibratory pile driving and removal) and impulsive (impact pile driving) sources, and, therefore, the 120 and 160 dB re 1 μPa (rms) are applicable.

    Level A harassment for non-explosive sources—NMFS's Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing (NMFS, 2016a) identifies dual criteria to assess auditory injury (Level A harassment) to five different marine mammal groups (based on hearing sensitivity) as a result of exposure to noise from two different types of sources (impulsive or non-impulsive). USCG's planned activity includes the use of non-impulsive (vibratory pile driving and removal) and impulsive (impact pile driving) sources.

    These thresholds were developed by compiling and synthesizing the best available science and soliciting input multiple times from both the public and peer reviewers to inform the final product, and are provided in Table 2 below. The references, analysis, and methodology used in the development of the thresholds are described in NMFS 2016 Technical Guidance, which may be accessed at: http://www.nmfs.noaa.gov/pr/acoustics/guidelines.htm.

    Table 2—Thresholds Identifying the Onset of Permanent Threshold Shift Hearing group PTS onset thresholds Impulsive Non-impulsive Low-Frequency (LF) Cetaceans L pk,flat: 219 dB; L E,LF,24h: 183 dB L E,LF,24h: 199 dB. Mid-Frequency (MF) Cetaceans L pk,flat: 230 dB; L E,MF,24h: 185 dB L E,MF,24h: 198 dB. High-Frequency (HF) Cetaceans L pk,flat: 202 dB; L E,HF,24h: 155 dB L E,HF,24h: 173 dB. Phocid Pinnipeds (PW) (Underwater) L pk,flat: 218 dB; L E,PW,24h: 185 dB L E,PW,24h: 201 dB. Otariid Pinnipeds (OW) (Underwater) L pk,flat: 232 dB; L E,OW,24h: 203 dB L E,OW,24h: 219 dB. * Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for calculating PTS onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level thresholds associated with impulsive sounds, these thresholds should also be considered. Note: Peak sound pressure (L pk) has a reference value of 1 μPa, and cumulative sound exposure level (L E) has a reference value of 1μPa2s. In this Table, thresholds are abbreviated to reflect American National Standards Institute standards (ANSI 2013). However, peak sound pressure is defined by ANSI as incorporating frequency weighting, which is not the intent for this Technical Guidance. Hence, the subscript “flat” is being included to indicate peak sound pressure should be flat weighted or unweighted within the generalized hearing range. The subscript associated with cumulative sound exposure level thresholds indicates the designated marine mammal auditory weighting function (LF, MF, and HF cetaceans, and PW and OW pinnipeds) and that the recommended accumulation period is 24 hours. The cumulative sound exposure level thresholds could be exceeded in a multitude of ways (i.e., varying exposure levels and durations, duty cycle). When possible, it is valuable for action proponents to indicate the conditions under which these acoustic thresholds will be exceeded. Ensonified Area

    Here, we describe operational and environmental parameters of the activity that will feed into identifying the area ensonified above the acoustic thresholds.

    Background noise is the sound level that would exist without the planned activity (pile driving and removal, in this case), while ambient sound levels are those without human activity (NOAA 2009). Natural actions that contribute to ambient noise include waves, wind, rainfall, current fluctuations, chemical composition, and biological sound sources (e.g., marine mammals, fish, and shrimp, Carr et al., 2006). Background noise levels will be compared to the NOAA/NMFS threshold levels designed to protect marine mammals to determine the Level B Harassment Zones for noise sources. The background noise at Monterey Harbor is relatively high due to boat traffic, foot traffic, and noise from the USCG Monterey Station.

    Pile installation would be adjacent to a rock jetty that would provide substantial underwater shielding of sound transmission to areas north (or through the jetty) (see Figure 1-2 of the Application).

    For vibratory pile driving in the proposed IHA, to estimate the extent of underwater noise, the software modeling package SoundPlan was used by the USCG to simulate sound transmission for the project. However, as part of the final IHA, NMFS considered revised source levels to determine the Level B Harassment zone based on more representative sound sources to project specifics. With a revised source level of 162 dB SPL rms (based on Washington State Department of Transportation (WSDOT) Friday Harbor data (2010) for 24-inch (in) steel piles with a source level of 162 dB rms at 10 meters (m) for vibratory pile driving and removal), the calculated Level B Harassment Zone would be 6,309 m (6.3 kilometers (km)) rather than 15,848 m (15.8 km) that would be calculated with a 168 dB SPL rms in the proposed IHA. NMFS will continue to assume the USCG's conservative method for estimating the range through the breakwater (north), while all other distances are based on the sound hitting the shoreline (Table 3).

    Table 3 shows the results of the modeled underwater noise analysis for vibratory pile driving where 120 dB rms (Level B threshold) levels would end, and Figure 5-1 from the application shows the pattern of sound expected from vibratory pile extraction and pile installation, taking into account shielding from the Monterey Breakwater. From these data, a Level B zone of influence (ZOI) was calculated at approximately 7.3 square kilometers (km2). The modeled distances shown in the table below are likely an overestimate of the extent of underwater noise, because practical spreading loss (15 log10) sound propagation were assumed, and the Monterey Breakwater would likely reduce noise considerably faster than assumed. Per the sound assessment completed for the project (included in Appendix A of the application) the following assumptions and parameters were used for the analysis: For vibratory pile installation, it is estimated that it would take approximately 20 minutes (1,200 seconds) to vibrate in each pile.

    Table 3—Modeled Extent of Level B Zones From Vibratory Pile Extraction and Driving Modeling scenario Level B Zone
  • (distance to 120 dB rms)
  • Modeled north 2,000 m Modeled northeast shoreline 2,400 m Modeled east to shoreline 1,800 m Modeled south to shoreline 550 m Area of Influence 7.3 km2 Notes: dB = decibel, RMS = root mean square.

    For impact pile driving in the proposed IHA, to estimate the extent of underwater noise, the software modeling package SoundPlan was used by the USCG to simulate sound transmission for the project. However, as part of the final IHA, NMFS considered revised source levels to determine the Level B Harassment zones based on more representative sound sources to project specifics. With a revised source level of 187 SPL rms (based on the California Department of Transportation Compendium of Pile Driving Sound Data Report (Caltrans 2007) for 14-in steel piles with a source level of 187 dB SPL rms (177 dB SEL) at 10 m for impact pile driving) minus 5 dB for using sound attenuated devices, the source level would then be 182 SPL rms and the calculated Level B Harassment Zone would be 293 m rather than 465 m that was calculated in the proposed IHA with a 195 dB SPL rms. A 5 dB reduction was used in the final IHA rather than a 10 dB reduction that was used in the proposed IHA based on the variability of the efficacy of sound attenuation devices. NMFS will continue to assume the USCG's conservative method for estimating the range through the breakwater (north), while all other distances are based on the recalculated distance of 293 m as described above and in Table 4.

    Table 4—Extent of Level B Zones From Impact Pile Driving Modeling scenario Distance to marine
  • mammal criteria
  • rms
  • (dB re: 1µPa)
  • 160 dB
  • (Level B threshold)
  • Modeled attenuated noise transmission north and northeast (through breakwater) 76 m Recalculated attenuated noise transmission in all other directions 293 m Area of Influence 0.27 km2 Notes: Assumes 5 dB of underwater noise attenuation by using a bubble curtain during pile driving. Distances and method of calculation are presented in Appendix A of the application. dB = decibel, rms = root mean square (dB re: 1µPa).

    The incidental take requested is Level B harassment of any marine mammal occurring within the 160 dB rms disturbance threshold during impact pile driving of 14-in steel pipe piles; the 120 dB rms disturbance threshold for vibratory pile driving of 14-in steel pipe piles; and the 120 dB rms disturbance threshold for vibratory removal of 16-in to 18-in timber piles. Level B harassment zones have been established as described in Tables 3 and 4 that will be in place during active pile removal or installation.

    When NMFS Technical Guidance (NMFS 2016) was published, in recognition of the fact that ensonified area/volume could be more technically challenging to predict because of the duration component in the new thresholds, we developed a User Spreadsheet that includes tools to help predict a simple isopleth that can be used in conjunction with marine mammal density or occurrence to help predict takes. We note that because of some of the assumptions included in the methods used for these tools, we anticipate that isopleths produced are typically going to be overestimates of some degree, which will result in some degree of overestimate of Level A take. However, these tools offer the best way to predict appropriate isopleths when more sophisticated 3D modeling methods are not available, and NMFS continues to develop ways to quantitatively refine these tools, and will qualitatively address the output where appropriate. For stationary sources such as vibratory and impact pile driving, NMFS's User Spreadsheet predicts the closest distance at which, if a marine mammal remained at that distance the whole duration of the activity, it would not incur PTS. Inputs used in the User Spreadsheet, and the resulting isopleths are reported below (Tables 5 and 6).

    The PTS isopleths were identified for each hearing group for impact and vibratory installation and removal methods that will be used in the Monterey Station Project. The PTS isopleth distances were calculated using the NMFS acoustic threshold calculator (NMFS 2016), with inputs based on measured and surrogate noise measurements. Tables 5 and 6 have been revised since the proposed IHA and uses data that is more representative to project specifics. Data from WSDOT Friday Harbor data (2010) for 24-in steel piles with a source level of 162 dB SPLrms (at 10 m) was used to characterize the sound that would be produced from vibratory pile driving and removal. For impact pile driving, data from the Caltrans (2007) with a source level (in SEL) of 172 dB at a distance of 10 m with an average 30 strikes per pile was used.

    Table 5—NMFS Technical Acoustic Guidance User Spreadsheet Input To Predict PTS Isopleths [User spreadsheet input] Spreadsheet Tab Used Sound source 1 (A) Vibratory pile driving (removal and
  • installation)
  • Sound source 2 (E.1) Impact pile driving (installation)
    Source Level (rms SPL) 162 dB Source Level (Single Strike/shot SEL) 172 dB Weighting Factor Adjustment (kHz) 2.5 2 (a) Number of strikes in 1 h 30 (a) Activity Duration (h) within 24-h period 4 5 Propagation (xLogR) 15 15 Distance of source level measurement (meters)+ 10 10
    Table 6—NMFS Technical Acoustic Guidance User Spreadsheet Output for Predicted PTS Isopleths and Level A Daily Ensonified Areas [User spreadsheet output] Sound source type Low-frequency cetaceans Mid-frequency cetaceans High-frequency cetaceans Phocid pinnipeds Otariid pinnipeds PTS Isopleth (meters) Vibratory (removal and installation) 20.1 1.8 29.7 12.2 0.9 Impact (installation) 52.1 1.9 62.1 27.9 2.0 Daily ensonified area (km2) Vibratory (pile removal and installation) 0.00127 0.00001 0.00277 0.00046 0.00000 Impact (installation) 0.00853 0.00001 0.01212 0.00245 0.00001

    Table 7 below shows the Level A Harassment exclusion zones that were rounded up slightly from the output generated in the NMFS Technical Acoustic Guidance User Spreadsheet (Table 6).

    Table 7—Level A Harassment Exclusion Zones Sound source type Low-frequency cetaceans Mid-frequency cetaceans High-frequency cetaceans Phocid pinnipeds Otariid pinnipeds Exclusion Zone (meters) Vibratory (removal and installation) 21 10 30 13 10 Impact (installation) 53 10 63 28 10 Marine Mammal Occurrence and Take Calculation and Estimation

    In this section we provide the information about the presence, density, or group dynamics of marine mammals that will inform the take calculation and we describe how the marine mammal occurrence information is brought together to produce a quantitative take estimate.

    Take estimates are based on the number of animals per unit area in the project area multiplied by the area size of ensonified zones within which received noise levels exceed certain thresholds (i.e., Level B harassment) from specific activities, then multiplied by the total number of days such activities would occur. Local abundance data are used for take calculations for the authorized take where density is not available or applicable to the project area.

    Unless otherwise described, incidental take is estimated by the following equation:

    Incidental take estimate = species density * zone of influence (7.3 km2) * days of pile-related activity (8 days). Harbor Seals

    Pacific harbor seals are much less abundant in the project area than California sea lions, and only two annual surveys conducted since 1998 identified any individuals. The 2004 annual pinniped survey conducted by NMFS counted 28 Pacific harbor seals in Monterey Harbor in 2004, and 1 in 2005 (Lowry 2012). Pacific harbor seals hauled-out along Cannery Row, north of the Monterey Breakwater, ranged from 1 to 24 in 2002, 2004, and 2009. During repairs on the Pier in 2009, Pacific harbor seals were occasionally observed in the nearby waters, but were never observed to haul-out on the breakwater (Harvey and Hoover 2009). The density for harbor seals was determined by drawing a 5 km radius in ArcGIS with the jetty haul-out site at the center. The area within this circle was calculated, excluding the land, resulting in a 29 km2 foraging area. The calculation for take of harbor seals estimate assumes 28 individuals (the most observed during any single survey) to be in the water at any given time within 5 km of the breakwater (area 29 km2); therefore, the calculated density is 0.97 seals/km2. The estimated Level B take is 0.97 seals multiplied by 7.3 km2 and 8 days of activity for a total of 57 harbor seals (see Table 7). Since the calculated Level A zones of phocids are small and mitigation is in place to avoid Level A take (Table 6), we do not consider it likely that any harbor seals would be taken by Level A harassment.

    California Sea Lions

    The calculation for Level B take of California sea lions in the water assumes an average density of 8.62 individuals/km2. This density was determined by drawing a 5 km radius in ArcGIS with the jetty haul-out site at the center. The area within this circle was calculated, excluding the land, resulting in a 29 km2 foraging area. An average of 250 sea lions were assumed in the water at any given time. Therefore, 250 sea lions divided by 29 km2 equals 8.62 sea lions/km2. Estimated take is then calculated using 8.62 sea lions multiplied by 7.3 km2 and 8 days of activity for a total of 504 California sea lions (see Table 7). For the additional California sea lions that are present on the breakwater (which we would also expect to enter the water during the project): The overall average number of sea lions for all of the surveys of the Monterey Breakwater combined was 250 individuals. Therefore, 250 animals was multiplied by 8 days of activity for a total of 2,000 California sea lions (see Table 7). Since the calculated Level A zones of otariids are all very small and mitigation is in place to avoid Level A take (Table 6), we do not consider it likely that any sea lions would be taken by Level A harassment.

    Killer Whale

    Due to the low frequency and unpredictability of killer whales entering the project area, the application of a density equation is not reasonable for predicting take. When transient killer whales enter Monterey Bay, they typically are in groups of 3 to 8 at a time (Guzman 2016). To be conservative, the take estimate for Level B harassment is based on a larger group of eight transient killer whales that may enter the area (Table 7). Offshore killer whales are more of a rare occurrence in Monterey Bay; with the most recent documentation of approximately 25 whales in December 2016. Therefore, the take estimate for Level B harassment is based on the possibility that a single occurrence of a smaller pod of 25 whales may enter the area (Table 7). Since the Level A zones of mid-frequency cetaceans are small and mitigation is in place to avoid Level A take (Table 6), we do not consider it likely that any killer whales would be taken by Level A harassment.

    Bottlenose Dolphin

    Abundance and densities of cetaceans in the California Current ecosystem were conducted from 1991 to 2005 (Barlow, Forney 2007). The results of the surveys indicate that bottlenose dolphin population density throughout the entire west coast shoreline is 1.78 individuals/100 km2. During the same survey, the mean group size for bottlenose dolphins observed in Central California was four individuals. Other, more recent data suggest that densities may be up to 0.04/km2 (Weller 2016). Even when using the higher density, estimated take results in very low numbers (<1 over the entire period of construction). Rather than using density calculations to estimate take, to be conservative, the Level B take is a small pod of 10 bottlenose dolphins (Table 7). Since the Level A zones of mid-frequency cetaceans are small and mitigation is in place to avoid Level A take (Table 6), we do not consider it likely that any bottlenose dolphins would be taken by Level A harassment.

    Risso's Dolphin

    Because there is not reliable local data for Monterey Bay, the Level B take estimate for Risso's dolphins is a single occurrence of a small pod of 10 animals (see Table 7) as groups of Risso's dolphins average between 10-30 animals. Since the Level A zones of mid-frequency cetaceans are small and mitigation is in place to avoid Level A take (Table 6), we do not consider it likely that any Risso's dolphin would be taken by Level A harassment.

    Harbor Porpoise

    An estimate of the density of harbor porpoise in the southern portion of Monterey Bay nearshore is approximately 2.321 per km2 (Forney et al., 2014). Therefore, the estimated take for Level B harassment is 2.231 porpoise multiplied by 7.3 km2 and 8 days of activity for a total of 136 harbor porpoise (see Table 7). Since the calculated Level A zones of high frequency cetaceans are small and mitigation is in place to avoid Level A take (Table 6), we do not consider it likely that any harbor porpoise would be taken by Level A harassment.

    Humpback Whale

    Humpback whales are typically found further offshore than gray whales and occurrence is rare; however, since 2014 greater numbers of humpback whales have been observed in and near Monterey Bay by whale-watching vessels. Because USCG will shutdown for all observed humpbacks (in Level A and B zones), no takes of humpback whales are authorized.

    Gray Whale

    The occurrence of gray whales is extremely rare near shore in the project area. If gray whales would approach the project area they would be more likely to occur during the spring migration north, when they tend to stay closer to shore than during the winter southern migration. The NOAA National Center for Coastal Ocean Science (NCCOS) reported densities of gray whales at 0.1 to 0.5 per km2 (NCCOS 2007). Therefore, the estimated take for Level B harassment was calculated using the larger density of 0.5 whales per km2 multiplied by 7.3 km2 and 8 days of activity for a total of 4 gray whales (see Table 7). Since the Level A zones of low-frequency cetaceans are small and mitigation is in place to avoid Level A take (see Table 6) we do not consider it likely that any gray whales would be taken by Level A harassment during removal or impact installation.

    Table 7—Summary of Requested Incidental Take by Level A and Level B Harassment Species Stock size Authorized
  • Level B take
  • Authorized total take Percent of
  • population
  • Pacific harbor seal (Phoca vitulina) 30,968 57 57 Less than 1. California sea lion (Zalophus californianus) 296,750 504 (Animals already in the water) 2,504 Less than 1. California sea lion (Zalophus californianus) 296,750 2,000 (Animals that enter the water from the breakwater) Transient killer whale (Orcinus orca) 243 8 8 3.3. Offshore killer whale (Orcinus orca) 240 25 (single occurrence of a small pod) 25 10.42. Bottlenose dolphin (Tursiops truncatus) 453 10 (single occurrence of a small pod) 10 4.19. Risso's dolphin (Grampus griseus) 6,336 10 (single occurrence of a small pod) 10 Less than 1. Harbor porpoise (Phocoena phocoena) 3,715 136 136 3.66. Gray whale (Eschrichtius robustus) 20,990 4 4 Less than 1.
    Mitigation Measures

    In order to issue an IHA under Section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for certain subsistence uses (latter not applicable for this action). NMFS regulations require applicants for incidental take authorizations to include information about the availability and feasibility (economic and technological) of equipment, methods, and manner of conducting such activity or other means of effecting the least practicable adverse impact upon the affected species or stocks and their habitat (50 CFR 216.104(a)(11)).

    In evaluating how mitigation may or may not be appropriate to ensure the least practicable adverse impact on species or stocks and their habitat, as well as subsistence uses where applicable, we carefully consider two primary factors:

    (1) The manner in which, and the degree to which, the successful implementation of the measure(s) is expected to reduce impacts to marine mammals, marine mammal species or stocks, and their habitat. This considers the nature of the potential adverse impact being mitigated (likelihood, scope, range). It further considers the likelihood that the measure will be effective if implemented (probability of accomplishing the mitigating result if implemented as planned) the likelihood of effective implementation (probability implemented as planned), and;

    (2) the practicability of the measures for applicant implementation, which may consider such things as cost, impact on operations, and, in the case of a military readiness activity, personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity.

    Several measures for mitigating effects on marine mammals from the pile installation and removal activities at for the USCG Monterey Station and are described below.

    Timing Restrictions

    All work will be conducted during daylight hours.

    Noise Attenuation

    A bubble curtain and cushion pads will be used during pile driving activities with an impact hammer to reduce sound levels. In addition, the USCG will perform “pre-drilling.” Pre-drilling will be performed and discontinued when the pile tip is approximately five feet (ft) above the required pile tip elevation. Pre-drilling is a method that starts the “hole” for the new pile; the pile is inserted after the hole has been pre-drilled which creates less friction and overall noise and turbidity during installation.

    Exclusion Zones

    Exclusion Zones calculated from the PTS isopleths (Table 7) will be implemented to protect marine mammals from Level A harassment (refer to Table 6). If a marine mammal is observed at or within the Exclusion Zone (Table 7), work will shut down (stop work) until the individual has been observed outside of the zone, or has not been observed for at least 15 minutes for pinnipeds and small cetaceans and 30 minutes for large whales.

    Additional Shutdown Measures

    If a humpback whale is observed within the Level A or Level B zones, the USCG will implement shutdown measures. Work would not commence until 30-minutes after the last sighting of a humpback within these zones.

    USCG will implement shutdown measures if the number of authorized takes for any particular species reaches the limit under the IHA and if such marine mammals are sighted within the vicinity of the project area and are approaching the Level B harassment zone during in-water construction activities.

    If a marine mammal species under NMFS' jurisdiction is observed within the Level A or B zones that has not been authorized for take, the USCG will implement shutdown measures.

    Level B Harassment Zones

    USCG will monitor the Level B harassment ZOIs as described in Tables 3 and 4.

    Soft-Start for Impact Pile Driving

    For impact pile installation, contractors will provide an initial set of three strikes from the impact hammer at 40 percent energy, followed by a one-minute waiting period, then two subsequent three-strike sets. Each day, USCG will use the soft-start technique at the beginning of impact pile driving, or if impact pile driving has ceased for more than 30 minutes.

    Based on our evaluation of the applicant's planned measures, as well as other measures considered by NMFS, NMFS has determined that the mitigation measures provide the means of effecting the least practicable impact on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.

    Monitoring and Reporting

    In order to issue an IHA for an activity, Section 101(a)(5)(D) of the MMPA states that NMFS must set forth, requirements pertaining to the monitoring and reporting of such taking. The MMPA implementing regulations at 50 CFR 216.104(a)(13) indicate that requests for authorizations must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the action area. Effective reporting is critical both to compliance as well as ensuring that the most value is obtained from the required monitoring.

    Monitoring and reporting requirements prescribed by NMFS should contribute to improved understanding of one or more of the following:

    • Occurrence of marine mammal species or stocks in the area in which take is anticipated (e.g., presence, abundance, distribution, density);

    • Nature, scope, or context of likely marine mammal exposure to potential stressors/impacts (individual or cumulative, acute or chronic), through better understanding of: (1) Action or environment (e.g., source characterization, propagation, ambient noise); (2) affected species (e.g., life history, dive patterns); (3) co-occurrence of marine mammal species with the action; or (4) biological or behavioral context of exposure (e.g., age, calving or feeding areas);

    • Individual marine mammal responses (behavioral or physiological) to acoustic stressors (acute, chronic, or cumulative), other stressors, or cumulative impacts from multiple stressors;

    • How anticipated responses to stressors impact either: (1) Long-term fitness and survival of individual marine mammals; or (2) populations, species, or stocks;

    • Effects on marine mammal habitat (e.g., marine mammal prey species, acoustic habitat, or other important physical components of marine mammal habitat); and

    • Mitigation and monitoring effectiveness.

    Marine mammal monitoring will be conducted in strategic locations around the area of potential effects at all times during in-water pile driving and removal as described below:

    During pile removal or installation the observer will monitor from the most practicable vantage point possible (i.e., the pier itself, the breakwater, adjacent boat docks in the harbor, or a boat) to determine whether marine mammals enter the Exclusion Zone and to record take when marine mammals enter the relevant Level B Harassment Zones based on type of construction activity; and

    If a marine mammal approaches an Exclusion Zone, the observation will be reported to the Construction Manager and the individual will be watched closely. If the marine mammal crosses into an Exclusion Zone, a stop-work order will be issued. In the event that a stop-work order is triggered, the observed marine mammal(s) will be closely monitored while it remains in or near the Exclusion Zone, and only when it moves well outside of the Exclusion Zone or has not been observed for at least 15 minutes for pinnipeds and 30 minutes for whales will the lead monitor allow work to recommence.

    Protected Species Observers

    USCG shall employ a minimum of three NMFS-approved protected species observers (PSOs) to conduct marine mammal monitoring for its Monterey Station Project. The PSOs will observe and collect data on marine mammals in and around the project area for 30 minutes before, during, and for 30 minutes after all pile removal and pile installation work. NMFS-approved PSOs shall meet the following requirements:

    1. Visual acuity in both eyes (correction is permissible) sufficient for discernment of moving targets at the water's surface with ability to estimate target size and distance. Use of binoculars may be necessary to correctly identify the target;

    2. Advanced education in biological science, wildlife management, mammalogy or related fields (Bachelors degree or higher is preferred), but not required;

    3. Experience or training in the field identification of marine mammals (cetaceans and pinnipeds);

    4. Sufficient training, orientation or experience with the construction operation to provide for personal safety during observations;

    5. Ability to communicate orally, by radio or in person, with project personnel to provide real time information on marine mammals observed in the area as necessary;

    6. Experience and ability to conduct field observations and collect data according to assigned protocols (this may include academic experience);

    7. Writing skills sufficient to prepare a report of observations that would include such information as the number and type of marine mammals observed; the behavior of marine mammals in the project area during construction, dates and times when observations were conducted; dates and times when in-water construction activities were conducted; and dates and times when marine mammals were present at or within the defined ZOI;

    8. If a team of three or more observers are required, one observer should be designated as lead observer or monitoring coordinator. The lead observer must have prior experience working as an observer;

    9. NMFS will require submission and approval of observer CVs; and

    10. PSOs will monitor marine mammals around the construction site using high-quality binoculars (e.g., Zeiss, 10 x 42 power) and/or spotting scopes.

    11. If marine mammals are observed, the following information will be documented:

    (A) Date and time that monitored activity begins or ends;

    (B) Construction activities occurring during each observation period;

    (C) Weather parameters (e.g., percent cover, visibility);

    (D) Water conditions (e.g., sea state, tide state);

    (E) Species, numbers, and, if possible, sex and age class of marine mammals;

    (F) Description of any observable marine mammal behavior patterns, including bearing and direction of travel and distance from pile driving activity;

    (G) Distance from pile driving activities to marine mammals and distance from the marine mammals to the observation point;

    (H) Locations of all marine mammal observations; and

    (I) Other human activity in the area.

    Reporting Measures Marine Mammal Monitoring Report

    USCG will be required to submit a draft marine mammal monitoring report within 90 days after completion of the in-water construction work or the expiration of the IHA (if issued), whichever comes earlier. The report will include data from marine mammal sightings as described: Date, time, location, species, group size, and behavior, any observed reactions to construction, distance to operating pile hammer, and construction activities occurring at time of sighting and environmental data for the period (i.e., wind speed and direction, sea state, tidal state, cloud cover, and visibility). The marine mammal monitoring report will also include total takes, takes by day, and stop-work orders for each species. NMFS will have an opportunity to provide comments on the report, and if NMFS has comments, USCG will address the comments and submit a final report to NMFS within 30 days.

    In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner prohibited by the IHA (if issued), such as an injury (Level A harassment), serious injury, or mortality, USCG will immediately cease the specified activities and immediately report the incident to the Permits and Conservation Division, Office of Protected Resources, NMFS and the NMFS' West Coast Stranding Coordinator. The report must include the following information:

    • Time, date, and location (latitude/longitude) of the incident;

    • Description of the incident;

    • Status of all sound source use in the 24 hrs preceding the incident;

    • Water depth;

    • Environmental conditions (e.g., wind speed and direction, sea state, cloud cover, and visibility);

    • Description of all marine mammal observations in the 24 hrs preceding the incident;

    • Species identification or description of the animal(s) involved;

    • Fate of the animal(s); and

    • Photographs or video footage of the animal(s) (if equipment is available).

    Activities will resume until NMFS is able to review the circumstances of the prohibited take. NMFS will work with USCG to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. USCG may not resume their activities until notified by NMFS via letter, email, or telephone.

    Reporting of Injured or Dead Marine Mammals

    In the event that the USCG discovers an injured or dead marine mammal, and the lead PSO determines that the cause of the injury or death is unknown and the death is relatively recent (i.e., in less than a moderate state of decomposition as described in the next paragraph), USCG will immediately report the incident to the Permits and Conservation Division, Office of Protected Resources, NMFS and the NMFS' West Coast Stranding Coordinator. The report must include the same information identified in the paragraph above. Activities may continue while NMFS reviews the circumstances of the incident. NMFS will work with USCG to determine whether modifications in the activities are appropriate.

    In the event that USCG discovers an injured or dead marine mammal, and the lead PSO determines that the injury or death is not associated with or related to the activities authorized in the IHA (e.g., previously wounded animal, carcass with moderate to advanced decomposition, or scavenger damage), USCG will report the incident to the Permits and Conservation Division, Office of Protected Resources, NMFS and the NMFS Stranding Hotline and/or by email to the NMFS' West Coast Stranding Coordinator within 24 hrs of the discovery. USCG will provide photographs or video footage (if available) or other documentation of the stranded animal sighting to NMFS. Activities may continue while NMFS reviews the circumstances of the incident.

    Negligible Impact Analysis and Determination

    NMFS has defined negligible impact as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (i.e., population-level effects). An estimate of the number of takes alone is not enough information on which to base an impact determination. In addition to considering estimates of the number of marine mammals that might be “taken” through harassment, NMFS considers other factors, such as the likely nature of any responses (e.g., intensity, duration), the context of any responses (e.g., critical reproductive time or location, migration), as well as effects on habitat, and the likely effectiveness of the mitigation. We also assess the number, intensity, and context of estimated takes by evaluating this information relative to population status. Consistent with the 1989 preamble for NMFS's implementing regulations (54 FR 40338; September 29, 1989), the impacts from other past and ongoing anthropogenic activities are incorporated into this analysis via their impacts on the environmental baseline (e.g., as reflected in the regulatory status of the species, population size and growth rate where known, ongoing sources of human-caused mortality, or ambient noise levels).

    No injury, serious injury or mortality is anticipated or authorized for the Monterey Station Project. Takes that are anticipated and authorized are expected to be limited to short-term Level B harassment (behavioral) only. Marine mammals present in the vicinity of the action area and taken by Level B harassment would most likely show overt brief disturbance (startle reaction) and avoidance of the area from elevated noise levels during pile driving and pile removal.

    There is one endangered species that may occur in the project area, humpback whales. However, if any humpbacks are detected within the Level B harassment zone of the project area, the USCG will shut down.

    The Monterey Breakwater is a haulout location for approximately 250 California sea lions. There no other known critical habitat areas, haulouts or import feeding areas in close proximately to the project area.

    The project also is not expected to have significant adverse effects on affected marine mammals' habitat, as analyzed in detail in the “Potential Effects of Specified Activities on Marine Mammals and their Habitat” section. Project activities would not permanently modify existing marine mammal habitat. The activities may kill some fish and cause other fish to leave the area temporarily, thus impacting marine mammals' foraging opportunities in a limited portion of the foraging range; but, because of the short duration of the activities and the relatively small area of the habitat that may be affected, the impacts to marine mammal habitat are not expected to cause significant or long-term negative consequences. Therefore, given the consideration of potential impacts to marine mammal prey species and their physical environment, USCG's Monterey Station project would not adversely affect marine mammal habitat.

    In summary and as described above, the following factors primarily support our determination that the impacts resulting from this activity are not expected to adversely affect the species or stock through effects on annual rates of recruitment or survival:

    • No injury, serious injury or mortality is anticipated or authorized;

    • Takes that are anticipated and authorized are expected to be limited to short-term Level B harassment (behavioral);

    • The project also is not expected to have significant adverse effects on affected marine mammals' habitat;

    • There are no known important feeding or pupping areas. There is one haulout (the breakwater) within the project area. There are no other known important areas for marine mammals with the footprint of the project area; and

    • For four out of the seven species, take is less than one percent of the stock abundance. Instances of take for the other three species (killer whale, bottlenose dolphin, and harbor porpoise) range from 3-10 percent of the stock abundance.

    Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the monitoring and mitigation measures, NMFS finds that the total marine mammal take from the activity will have a negligible impact on all affected marine mammal species or stocks.

    Small Numbers

    As noted above, only small numbers of incidental take may be authorized under Section 101(a)(5)(D) of the MMPA for specified activities other than military readiness activities. The MMPA does not define small numbers and so, in practice, where estimated numbers are available, NMFS compares the number of individuals taken to the most appropriate estimation of abundance of the relevant species or stock in our determination of whether an authorization is limited to small numbers of marine mammals. Additionally, other factors may be considered in the analysis, such as the temporal or spatial scale of the activities.

    For four out of the seven species, take is less than one percent of the stock abundance. Instances of take for the other three species (killer whale, bottlenose dolphin, and harbor porpoise) range from 3-10 percent of the stock abundance. Based on the analysis contained herein of the planned activity (including the mitigation and monitoring measures) and the anticipated take of marine mammals, NMFS preliminarily finds that small numbers of marine mammals will be taken relative to the population sizes of the affected species or stocks.

    Unmitigable Adverse Impact Analysis and Determination

    There are no relevant subsistence uses of the affected marine mammal stocks or species implicated by this action. Therefore, NMFS has determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.

    Endangered Species Act (ESA)

    Section 7(a)(2) of the ESA of 1973 (16 U.S.C. 1531 et seq.) requires that each Federal agency insure that any action it authorizes, funds, or carries out is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of designated critical habitat. To ensure ESA compliance for the issuance of IHAs, NMFS consults internally, in this case with the West Coast Regional Office, whenever we propose to authorize take for endangered or threatened species.

    NMFS is not authorizing take of humpback whales, which are listed under the ESA, as the applicant will implement shutdown measures whenever humpbacks are observed (Level A or B). Therefore, consultation under section 7 of the ESA is not required.

    Authorization

    NMFS has issued an IHA to USCG for the potential harassment of small numbers of seven marine mammal species incidental to pile driving and removal activities at the USCG Monterey Station, Monterey, California from December 2017 to October 2018, provided the previously mentioned mitigation, monitoring, and reporting requirements.

    Dated: December 22, 2017. Donna S. Wieting, Director, Office of Protected Resources, National Marine Fisheries Service.
    [FR Doc. 2017-28029 Filed 12-27-17; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XF930 Mid-Atlantic Fishery Management Council (MAFMC); Public Meeting AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Notice; public meeting.

    SUMMARY:

    The Northeast Trawl Advisory Panel (NTAP) of the Mid-Atlantic and New England Fishery Management Councils (Councils) will hold a meeting.

    DATES:

    The meeting will be held on Tuesday, January 16, 2018, beginning at 9 a.m. and conclude by 4:40 p.m. For agenda details, see SUPPLEMENTARY INFORMATION.

    ADDRESSES:

    Meeting address: The meeting will at the Hilton Garden Inn Boston Logan, 100 Boardman Street, Boston, MA 02128; telephone: (617) 567-6789.

    Council address: Mid-Atlantic Fishery Management Council, 800 N. State Street, Suite 201, Dover, DE 19901; telephone: (302) 674-2331 or on their website at www.mafmc.org.

    FOR FURTHER INFORMATION CONTACT:

    Christopher M. Moore, Ph.D., Executive Director, Mid-Atlantic Fishery Management Council, telephone: (302) 526-5255.

    SUPPLEMENTARY INFORMATION:

    The NTAP is a joint advisory panel of the Mid-Atlantic and New England Fishery Management Councils composed of Council members, fishing industry, academic, and government and non-government fisheries experts. The NTAP was established to bring commercial fishing, fisheries science, and fishery management professionals in the northeastern US together to identify concerns about regional research survey performance and data, to identify methods to address or mitigate these concerns, and to promote mutual understanding and acceptance of the results of this work among their peers and in the broader community.

    Topics to be discussed at the meeting by the NTAP include: NTAP membership; status of the Northeast Trawl Advisory Panel (NTAP) and NEFSC commitment to continuing to participate on NTAP; review recent gear efficiency work; discuss capability of PISCES to conduct the Autumn NEFSC Bottom Trawl Survey; discuss net efficiency work developed through NTAP collaborations presented at the TRAC Assessments and the Groundfish Operational Assessments; discuss challenges-faced and lessons-learned in trying to advance the goals of NTAP; identify solutions to improve communications between NTAP and the NEFSC; identify how the NEFSC can improve support to NTAP as a body and be more responsive to short and long-term needs; identify approaches to address or mitigate concerns about regional research survey performance and data.

    Special Accommodations

    These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aid should be directed to M. Jan Saunders, (302) 526-5251, at least 5 days prior to the meeting date.

    Dated: December 21, 2017. Tracey L. Thompson, Acting Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2017-27968 Filed 12-27-17; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF ENERGY [FE Docket No. 17-161-LNG] Sabine Pass Liquefaction, LLC; Application for Blanket Authorization To Export Liquefied Natural Gas to Non-Free Trade Agreement Countries on a Short-Term Basis AGENCY:

    Office of Fossil Energy, DOE.

    ACTION:

    Notice of application.

    SUMMARY:

    The Office of Fossil Energy (FE) of the Department of Energy (DOE) gives notice (Notice) of receipt of an application (Application), filed on December 20, 2017, by Sabine Pass Liquefaction, LLC (Sabine Pass), requesting blanket authorization to export liquefied natural gas (LNG) in an amount up to the equivalent of 600 billion cubic feet (Bcf) of natural gas on a cumulative basis over a two-year period commencing on the date of first short-term export or January 16, 2018, whichever is later. The LNG would be exported from the Sabine Pass Liquefaction Project (Liquefaction Project) located in Cameron Parish, Louisiana, to any country with the capacity to import LNG via ocean-going carrier and with which trade is not prohibited by U.S. law or policy. To date, Sabine Pass has been granted four final long-term orders under section 3 of the Natural Gas Act (NGA) to export LNG from Stages 1 and 2 of the Liquefaction Project in a volume equivalent to 1,006 Bcf per year of natural gas to countries with which the United States has not entered into a free trade agreement requiring national treatment for trade in natural gas (non-FTA countries), for a 20-year term.1 Additionally, Sabine Pass currently holds a short-term blanket authorization to export LNG in a volume equivalent to 600 Bcf of natural gas over a two-year period to any country with the capacity to import LNG via ocean-going carrier and with which trade is not prohibited by U.S. law or policy. Sabine Pass is requesting this authorization on its own behalf and as agent for other entities who hold title to the natural gas at the time of export. Sabine Pass's existing blanket authorization will expire on January 15, 2018.2 The current Application in effect is a request to extend Sabine Pass's current short-term blanket authorization issued in FE Docket No. 15-171-LNG for another two-year period beginning January 16, 2018 and extending through January 15, 2020.

    1See App. at notes 3 and 6 (describing the various DOE/FE authorizations granted for the first four liquefaction trains comprising Stages 1 and 2 of the Liquefaction Project).

    2Sabine Pass Liquefaction, LLC, Order Granting Blanket Authorization to Export Liquefied Natural Gas by Vessel from the Sabine Pass LNG Terminal Located in Cameron Parish, Louisiana, DOE/FE Order No. 3767, Docket No. 15-171-LNG (Jan. 13, 2016).

    DATES:

    Protests, motions to intervene, or notices of intervention, as applicable, requests for additional procedures, and written comments are to be filed using procedures detailed in the Public Comment Procedures section no later than 4:30 p.m., Eastern time, January 29, 2018.

    ADDRESSES:

    Additional details can be found in Sabine Pass's Application, posted on the DOE/FE website at: https://energy.gov/fe/2017-lng-export-compressed-natural-gas-cng-re-exports-long-term-natural-gas-applications.

    Protests, motions to intervene, notices of intervention, and written comments are invited.

    Electronic Filing by email: [email protected].

    Regular Mail:U.S. Department of Energy (FE-34), Office of Regulation and International Engagement, Office of Fossil Energy, P.O. Box 44375, Washington, DC 20026-4375.

    Hand Delivery or Private Delivery Services (e.g., FedEx, UPS, etc.)U.S. Department of Energy (FE-34), Office of Regulation and International Engagement, Office of Fossil Energy, Forrestal Building, Room 3E-042, 1000 Independence Avenue SW, Washington, DC 20585.

    FOR FURTHER INFORMATION CONTACT:

    Larine Moore, U.S. Department of Energy (FE-34), Office of Regulation and International Engagement, Office of Fossil Energy, Forrestal Building, Room 3E-042, 1000 Independence Avenue SW, Washington, DC 20585, (202) 586-9478.

    Cassandra Bernstein or Ronald (R.J.) Colwell, U.S. Department of Energy (GC-76), Office of the Assistant General Counsel for Electricity and Fossil Energy, Forrestal Building, 1000 Independence Avenue SW, Washington, DC 20585, (202) 586-9793 or (202) 586-8499.

    SUPPLEMENTARY INFORMATION:

    DOE/FE Evaluation

    In the Application, Sabine Pass requests authorization to export LNG from its Liquefaction Project located in Cameron Parish, Louisiana, to both FTA and non-FTA countries (i.e., any country with the capacity to import LNG via ocean-going carrier and with which trade is not prohibited by U.S. law or policy). This Notice applies only to the portion of the Application requesting authority to export LNG to non-FTA countries pursuant to section 3(a) of the NGA, 15 U.S.C. 717b(a). DOE separately will review the portion of the Application requesting authority to export LNG to FTA countries pursuant to section 3(c) of the NGA, 15 U.S.C. 717b(c).

    In reviewing Sabine Pass's request for a non-FTA export authorization, DOE will consider any issues required by law or policy. DOE will consider domestic need for the natural gas, as well as any other issues determined to be appropriate, including whether the arrangement is consistent with DOE's policy of promoting competition in the marketplace by allowing commercial parties to freely negotiate their own trade arrangements. As part of this analysis, DOE will consider the following two studies examining the cumulative impacts of exporting domestically produced LNG:

    Effect of Increased Levels of Liquefied Natural Gas on U.S. Energy Markets, conducted by the U.S. Energy Information Administration upon DOE's request (2014 EIA LNG Export Study); 3 and

    3 The 2014 EIA LNG Export Study, published on Oct. 29, 2014, is available at: https://www.eia.gov/analysis/requests/fe/.

    The Macroeconomic Impact of Increasing U.S. LNG Exports, conducted jointly by the Center for Energy Studies at Rice University's Baker Institute for Public Policy and Oxford Economics, on behalf of DOE (2015 LNG Export Study).4

    4 The 2015 LNG Export Study, dated Oct. 29, 2015, is available at: http://energy.gov/sites/prod/files/2015/12/f27/20151113_macro_impact_of_lng_exports_0.pdf.

    Additionally, DOE will consider the following environmental documents:

    Addendum to Environmental Review Documents Concerning Exports of Natural Gas From the United States, 79 FR 48132 (Aug. 15, 2014); 5 and

    5 The Addendum and related documents are available at: http://energy.gov/fe/draft-addendum-environmental-review-documents-concerning-exports-natural-gas-united-states.

    Life Cycle Greenhouse Gas Perspective on Exporting Liquefied Natural Gas From the United States, 79 FR 32260 (June 4, 2014).6

    6 The Life Cycle Greenhouse Gas Report is available at: http://energy.gov/fe/life-cycle-greenhouse-gas-perspective-exporting-liquefied-natural-gas-united-states.

    Parties that may oppose this Application should address these issues and documents in their comments and/or protests, as well as other issues deemed relevant to the Application in their responses on these issues.

    The National Environmental Policy Act (NEPA), 42 U.S.C. 4321 et seq., requires DOE to give appropriate consideration to the environmental effects of its proposed decisions. No final decision will be issued in this proceeding until DOE has met its environmental responsibilities.

    Public Comment Procedures

    In response to this Notice, any person may file a protest, comments, or a motion to intervene or notice of intervention, as applicable, regarding the non-FTA export portion of the Application. Interested persons will be provided 30 days from the date of publication of this Notice in which to submit comments, protests, motions to intervene, or notices of intervention.

    Any person wishing to become a party to the proceeding must file a motion to intervene or notice of intervention. The filing of comments or a protest with respect to the Application will not serve to make the commenter or protestant a party to the proceeding, although protests and comments received from persons who are not parties will be considered in determining the appropriate action to be taken on the Application. All protests, comments, motions to intervene, or notices of intervention must meet the requirements specified by the regulations in 10 CFR part 590.

    Filings may be submitted using one of the following methods: (1) Emailing the filing to [email protected], with FE Docket No. 17-161-LNG in the title line; (2) mailing an original and three paper copies of the filing to the Office of Regulation and International Engagement at the address listed in ADDRESSES; or (3) hand delivering an original and three paper copies of the filing to the Office of Regulation and International Engagement at the address listed in ADDRESSES. All filings must include a reference to FE Docket No. 17-161-LNG. PLEASE NOTE: If submitting a filing via email, please include all related documents and attachments (e.g., exhibits) in the original email correspondence. Please do not include any active hyperlinks or password protection in any of the documents or attachments related to the filing. All electronic filings submitted to DOE must follow these guidelines to ensure that all documents are filed in a timely manner. Any hardcopy filing submitted greater in length than 50 pages must also include, at the time of the filing, a digital copy on disk of the entire submission.

    A decisional record on the Application will be developed through responses to this Notice by parties, including the parties' written comments and replies thereto. Additional procedures will be used as necessary to achieve a complete understanding of the facts and issues. If an additional procedure is scheduled, notice will be provided to all parties. If no party requests additional procedures, a final Opinion and Order may be issued based on the official record, including the Application and responses filed by parties pursuant to this Notice, in accordance with 10 CFR 590.316.

    The Application is available for inspection and copying in the Office of Regulation and International Engagement docket room, Room 3E-042, 1000 Independence Avenue SW, Washington, DC 20585. The docket room is open between the hours of 8:00 a.m. and 4:30 p.m., Monday through Friday, except Federal holidays. The Application and any filed protests, motions to intervene, notices of interventions, and comments will also be available electronically by going to the following DOE/FE web address: http://www.fe.doe.gov/programs/gasregulation/index.html.

    Issued in Washington, DC, on December 20, 2017. Robert J. Smith, Deputy Assistant Secretary for Oil and Natural Gas (Acting), Office of Fossil Energy.
    [FR Doc. 2017-27970 Filed 12-27-17; 8:45 am] BILLING CODE 6450-01-P
    DEPARTMENT OF ENERGY [OE Docket No. EA-442] Application to Export Electric Energy; Fisterra Generación, S. de R.L. de C.V. AGENCY:

    Office of Electricity Delivery and Energy Reliability, DOE.

    ACTION:

    Notice of application.

    SUMMARY:

    Fisterra Generación, S. de R.L. de C.V. (Applicant) has applied for authority to transmit electric energy from the United States to Mexico pursuant to the Federal Power Act.

    DATES:

    Comments, protests, or motions to intervene must be submitted on or before January 29, 2018.

    ADDRESSES:

    Comments, protests, motions to intervene, or requests for more information should be addressed to: Office of Electricity Delivery and Energy Reliability, Mail Code: OE-20, U.S. Department of Energy, 1000 Independence Avenue SW, Washington, DC 20585-0350. Because of delays in handling conventional mail, it is recommended that documents be transmitted by overnight mail, by electronic mail to [email protected], or by facsimile to 202-586-8008.

    SUPPLEMENTARY INFORMATION:

    Exports of electricity from the United States to a foreign country are regulated by the Department of Energy (DOE) pursuant to sections 301(b) and 402(f) of the Department of Energy Organization Act (42 U.S.C. 7151(b), 7172(f)) and require authorization under section 202(e) of the Federal Power Act (16 U.S.C. § 824a(e)).

    On November 7, 2017, DOE received an application from the Applicant for authority to transmit electric energy from the United States to Mexico as a power marketer for a five-year term using existing international transmission facilities. The Applicant will register with the Electric Reliability Council of Texas (ERCOT) to make sells in Mexico, and will also be applying with the Federal Energy Regulatory Commission (FERC) for authorization to sell energy at wholesale market-based rates in the U.S.

    In its application, the Applicant states that it does not own or control any electric generation or transmission facilities, and it does not have a franchised service area. The electric energy that the Applicant proposes to export to Mexico would be surplus energy purchased from third parties such as electric utilities and Federal power marketing agencies pursuant to voluntary agreements. The existing international transmission facilities to be utilized by the Applicant have previously been authorized by Presidential Permits issued pursuant to Executive Order 10485, as amended, and are appropriate for open access transmission by third parties.

    Procedural Matters: Any person desiring to be heard in this proceeding should file a comment or protest to the application at the address provided above. Protests should be filed in accordance with Rule 211 of the Federal Energy Regulatory Commission's (FERC) Rules of Practice and Procedures (18 CFR 385.211). Any person desiring to become a party to these proceedings should file a motion to intervene at the above address in accordance with FERC Rule 214 (18 CFR 385.214). Five copies of such comments, protests, or motions to intervene should be sent to the address provided above on or before the date listed above.

    Comments and other filings concerning the Applicant's application to export electric energy to Mexico should be clearly marked with OE Docket No. EA-442. An additional copy is to be provided to Brooksany Barrowes, Baker Botts L.L.P., 1299 Pennsylvania Ave. NW, Washington, DC 20004.

    A final decision will be made on this application after the environmental impacts have been evaluated pursuant to DOE's National Environmental Policy Act Implementing Procedures (10 CFR part 1021) and after a determination is made by DOE that the proposed action will not have an adverse impact on the sufficiency of supply or reliability of the U.S. electric power supply system.

    Copies of this application will be made available, upon request, for public inspection and copying at the address provided above, by accessing the program website at http://energy.gov/node/11845, or by emailing Angela Troy at [email protected]

    Issued in Washington, DC, on November 27, 2017. Christopher Lawrence, Electricity Policy Analyst, Office of Electricity Delivery and Energy Reliability.
    [FR Doc. 2017-28028 Filed 12-27-17; 8:45 am] BILLING CODE 6450-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Project No. 1403-063] Notice of Application Accepted for Filing, Soliciting Comments, Protests and Motions To Intervene; Pacific Gas and Electric Company

    Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:

    a. Type of Proceeding: Extension of License Term.

    b. Project No.: P-1403-063.

    c. Date Filed: December 20, 2017.

    d. Licensee: Pacific Gas and Electric Company.

    e. Name and Location of Project: Narrows Hydroelectric Project, located on the Yuba River in Nevada County, California.

    f. Filed Pursuant to: Federal Power Act, 16 U.S.C. 791a-825r.

    g. Licensee Contact Information: Ms. Annette Faraglia, Chief Counsel, Hydro Generation, Pacific Gas and Electric Company, P.O. Box 7442, MC B30A-3005, San Francisco, CA 94120, Phone: (415) 973-7145, Email: [email protected] and Mr. John A. Whittaker, IV, Winston & Strawn LLP, 1700 K Street NW, Washington, DC 20006, Phone: (202) 282-5766, Email: [email protected]

    h. FERC Contact: Mr. Ashish Desai, (202) 502-8370, [email protected]

    i. Deadline for filing comments, motions to intervene and protests, is January 18, 2018. The Commission strongly encourages electronic filing. Please file motions to intervene, protests, comments, and recommendations, using the Commission's eFiling system at http://www.ferc.gov/docs-filing/efiling.asp. Commenters can submit brief comments up to 6,000 characters, without prior registration, using the eComment system at http://www.ferc.gov/docs-filing/ecomment.asp. You must include your name and contact information at the end of your comments. For assistance, please contact FERC Online Support at [email protected], (866) 208-3676 (toll free), or (202) 502-8659 (TTY). In lieu of electronic filing, please send a paper copy to: Secretary, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426. The first page of any filing should include docket number P-1403-063.

    j. Description of Proceeding: The licensee seeks Commission approval to extend the current 30-year term of the license for the Narrows Project by three years. The current term of the license expires January 31, 2023. The licensee wants to extend the term so it expires on January 31, 2026. The licensee has been working on a potential transfer of the Narrows Project to the Yuba County Water Agency (Yuba County). The Narrows Project is located within a half mile of Yuba County's Yuba River Hydroelectric Project No. 2246, which is currently in relicensing. The licensee wants the extension so it has more time to complete its negotiations with Yuba County and potentially transfer the project before the Narrows Project enters relicensing. Should the transfer occur, Yuba County could then potentially relicense the Narrows Project as part of the Yuba River Project.

    k. This notice is available for review and reproduction at the Commission in the Public Reference Room, Room 2A, 888 First Street NE, Washington, DC 20426. The filing may also be viewed on the Commission's website at http://www.ferc.gov/docs-filing/elibrary.asp. Enter the Docket number (P-1403-063) excluding the last three digits in the docket number field to access the notice. You may also register online at http://www.ferc.gov/docs-filing/esubscription.asp to be notified via email of new filings and issuances related to this or other pending projects. For assistance, call toll-free 1-866-208-3676 or email [email protected] For TTY, call (202) 502-8659.

    l. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.

    m. Comments, Protests, or Motions to Intervene: Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211, and .214. In determining the appropriate action to take, the Commission will consider all protests or other comments filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application.

    n. Filing and Service of Responsive Documents: Any filing must (1) bear in all capital letters the title COMMENTS, PROTEST, or MOTION TO INTERVENE as applicable; (2) set forth in the heading the name of the applicant and the project number of the application to which the filing responds; (3) furnish the name, address, and telephone number of the person protesting or intervening; and (4) otherwise comply with the requirements of 18 CFR 385.2001 through 385.2005. All comments, motions to intervene, or protests must set forth their evidentiary basis and otherwise comply with the requirements of 18 CFR 4.34(b). All comments, motions to intervene, or protests should relate to the request to extend the license term. Agencies may obtain copies of the application directly from the applicant. A copy of any protest or motion to intervene must be served upon each representative of the applicant specified in the particular application. If an intervener files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency. A copy of all other filings in reference to this application must be accompanied by proof of service on all persons listed in the service list prepared by the Commission in this proceeding, in accordance with 18 CFR 4.34(b) and 385.2010.

    Dated: December 21, 2017. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2017-28092 Filed 12-27-17; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. EL18-33-000] Notice of Institution of Section 206 Proceeding and Refund Effective Date; New York Independent System Operator, Inc.

    On December 21, 2017, the Commission issued an order in Docket No. EL18-33-000, pursuant to section 206 of the Federal Power Act (FPA), 16 U.S.C. 824e (2012), instituting an investigation into whether New York Independent System Operator, Inc.'s practices regarding the pricing of fast-start resources may be unjust and unreasonable. New York Independent System Operator, Inc., 161 FERC 61,294 (2017).

    The refund effective date in Docket No. EL18-33-000, established pursuant to section 206(b) of the FPA, will be the date of publication of this notice in the Federal Register.

    Any interested person desiring to be heard in Docket No. EL18-33-000 must file a notice of intervention or motion to intervene, as appropriate, with the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, in accordance with Rule 214 of the Commission's Rules of Practice and Procedure, 18 CFR 385.214, within 21 days of the date of issuance of the order.

    Dated: December 21, 2017. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2017-28088 Filed 12-27-17; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. CP18-31-000] Dominion Energy Questar Pipeline, LLC; Notice of Request Under Blanket Authorization

    Take notice that on December 15, 2017, Dominion Energy Questar Pipeline, LLC (Dominion Energy), 333 South State Street, Salt Lake City, Utah 84111, filed a prior notice application pursuant to sections 157.205, 157.208(c) and 157.213(b) of the Federal Energy Regulatory Commission's (Commission) regulations under the Natural Gas Act (NGA), and Dominion Energy's blanket certificate issued in Docket No. CP82-491-000,1 to modify existing facilities and install surface and subsurface facilities located at its existing Clay Basin storage facility, in Daggett County, Utah (the Clay Basin Delivery Project), all as more fully set forth in the application which is on file with the Commission and open to public inspection. The filing may also be viewed on the web at http://www.ferc.gov using the eLibrary link. Enter the docket number excluding the last three digits in the docket number field to access the document. For assistance, contact FERC at [email protected] or call toll-free, (866) 208-3676 or TTY, (202) 502-8659.

    1Mountain Fuel Resources, Inc., 20 FERC 62,580 (1982).

    Specifically, Dominion Energy proposes to modify two previously certificated storage injection/withdrawal wells (an existing operational storage-injection well and an existing inactive storage-injection/withdrawal well), and to install limited surface and subsurface facilities within the previously disturbed (non-vegetated) well-pad sites to restore functional service of the wells. Dominion Energy states that the project will enable it to convert 1.1 billion cubic feet (Bcf) of the existing 2.7 Bcf of interruptible storage capacity into firm storage capacity, with an associated increase of 9.2 million cubic feet per day in the minimum required deliverability (MRD) without increasing the overall storage capacity of the field. Dominion Energy states that the project will not affect the contracted firm capacity and MRD rights held by existing firm storage customers at Clay Basin. Dominion Energy estimates that the cost of the proposed project is approximately $3.6 million.

    Any questions regarding this application should be directed L. Bradley Burton, Director-Regulatory, Rates, Certificates and Tariffs Dominion Energy Questar Corporation, 333 South State Street, P.O. Box 45360, Salt Lake City, Utah 84145-0360, by telephone at (801) 324-2459, by fax at (801) 324-2905, or by email at [email protected]

    Any person or the Commission's staff may, within 60 days after issuance of the instant notice by the Commission, file pursuant to Rule 214 of the Commission's Procedural Rules (18 CFR 385.214) a motion to intervene or notice of intervention and pursuant to Section 157.205 of the regulations under the NGA (18 CFR 157.205), a protest to the request. If no protest is filed within the time allowed therefore, the proposed activity shall be deemed to be authorized effective the day after the time allowed for filing a protest. If a protest is filed and not withdrawn within 30 days after the allowed time for filing a protest, the instant request shall be treated as an application for authorization pursuant to section 7 of the NGA.

    Pursuant to section 157.9 of the Commission's rules, 18 CFR 157.9, within 90 days of this Notice the Commission staff will either: complete its environmental assessment (EA) and place it into the Commission's public record (eLibrary) for this proceeding, or issue a Notice of Schedule for Environmental Review. If a Notice of Schedule for Environmental Review is issued, it will indicate, among other milestones, the anticipated date for the Commission staff's issuance of the final environmental impact statement (FEIS) or EA for this proposal. The filing of the EA in the Commission's public record for this proceeding or the issuance of a Notice of Schedule for Environmental Review will serve to notify federal and state agencies of the timing for the completion of all necessary reviews, and the subsequent need to complete all federal authorizations within 90 days of the date of issuance of the Commission staff's FEIS or EA.

    Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commenters will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. Environmental commenters will not be required to serve copies of filed documents on all other parties. However, the non-party commenter will not receive copies of all documents filed by other parties or issued by the Commission (except for the mailing of environmental documents issued by the Commission) and will not have the right to seek court review of the Commission's final order.

    The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the eFiling link at http://www.ferc.gov. Persons unable to file electronically should submit an original and 5 copies of the protest or intervention to the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426.

    Dated: December 21, 2017. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2017-28087 Filed 12-27-17; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Project No. P-14862-000] Douglas Leen; Notice of Intent To File License Application, Filing of Pre-Application Document, and Approving Use of the Traditional Licensing Process

    a. Type of Filing: Notice of Intent to File License Application and Request to Use the Traditional Licensing Process.

    b. Project No.: P-14862-000.

    c. Date Filed: November 14, 2017.

    d. Submitted By: Douglas Leen.

    e. Name of Project: Kupeanof Microhydro Project.

    f. Location: On an unnamed stream, in Petersburg Borough, Alaska. The project occupies 0.1 acres of United States lands administered by U.S. Forest Service.

    g. Filed Pursuant to: 18 CFR 5.3 of the Commission's regulations.

    h. Potential Applicant Contact: Douglas Leen, P.O. Box 341, Petersburg, AK 99833; (907) 518-0335; [email protected]

    i. FERC Contact: Ryan Hansen at (202) 502-8074; or email at [email protected]

    j. Mr. Leen filed his request to use the Traditional Licensing Process on November 14, 2017. Mr. Leen provided public notice of his request on November 16, 2017. In a letter dated December 20, 2017, the Director of the Division of Hydropower Licensing approved Mr. Leen's request to use the Traditional Licensing Process.

    k. With this notice, we are initiating informal consultation with the U.S. Fish and Wildlife Service and/or NOAA Fisheries under section 7 of the Endangered Species Act and the joint agency regulations thereunder at 50 CFR, Part 402; and NOAA Fisheries under section 305(b) of the Magnuson-Stevens Fishery Conservation and Management Act and implementing regulations at 50 CFR 600.920. We are also initiating consultation with the Alaska State Historic Preservation Officer, as required by section 106, National Historic Preservation Act, and the implementing regulations of the Advisory Council on Historic Preservation at 36 CFR 800.2.

    l. Mr. Leen filed a Pre-Application Document (PAD; including a proposed process plan and schedule) with the Commission, pursuant to 18 CFR 5.6 of the Commission's regulations.

    m. A copy of the PAD is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's website (http://www.ferc.gov), using the eLibrary link. Enter the docket number, excluding the last three digits in the docket number field to access the document. For assistance, contact FERC Online Support at [email protected], (866) 208-3676 (toll free), or (202) 502-8659 (TTY). A copy is also available for inspection and reproduction at the address in paragraph h.

    n. Register online at http://www.ferc.gov/docs-filing/esubscription.asp to be notified via email of new filing and issuances related to this or other pending projects. For assistance, contact FERC Online Support.

    Dated: December 21, 2017. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2017-28094 Filed 12-27-17; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. CP18-30-000] Notice of Request Under Blanket Authorization; Columbia Gas Transmission, LLC

    Take notice that on December 15, 2017, Columbia Gas Transmission, LLC (Columbia), 700 Louisiana Street, Houston, Texas 77002-2700, filed in Docket No. CP18-30-000 a prior notice request pursuant to sections 157.205 and 157.208 of the Commission's regulations under the Natural Gas Act (NGA), and Columbia's blanket certificate issued in Docket No. CP83-76-000, to perform installations and activities to enable the in-line inspection, or pigging, of approximately 53.6 miles of its 20-inch diameter Line D-600 (D600 Launcher & Receiver Project). The majority of the proposed project installations and activities will be located at nine (9) modification points (Mod Points) along the existing Line D-600 right-of-way in Allen, Paulding, and Putnam Counties, Ohio.

    Columbia's project will consist of various modification activities necessary to insure that the line is pig-capable, including the installation of one new 24 x 20 bi-directional launcher/receiver at Mod Point 1 in Columbia's existing Cecil Panhandle Station in Paulding County, Ohio, one new 24 x 20 bi-directional launcher/receiver at Mod Point 9 in Columbia's existing Greeley Chapel Station in Allen County, Ohio, and additional appurtenances, including valves, tees, and stopples, at seven other Mod Points in Paulding, Putnam, and Allen Counties, Ohio, all as more fully set forth in the application which is on file with the Commission and open to public inspection. The filing may also be viewed on the web at http://www.ferc.gov using the “eLibrary” link. Enter the docket number excluding the last three digits in the docket number field to access the document. For assistance, please contact FERC Online Support at [email protected] or toll free at (866) 208-3676, or TTY, contact (202) 502-8659.

    Any questions concerning this application may be directed to Linda Farquhar, Manager, Project Determinations & Regulatory Administration, Columbia Gas Transmission, LLC, 700 Louisiana Street, Suite 700, Houston, Texas 77002-2700, by telephone at (832) 320-5685, by facsimile at (832) 320-6685, or by email at [email protected]

    Any person or the Commission's staff may, within 60 days after issuance of the instant notice by the Commission, file pursuant to Rule 214 of the Commission's Procedural Rules (18 CFR 385.214) a motion to intervene or notice of intervention and pursuant to section 157.205 of the regulations under the NGA (18 CFR 157.205), a protest to the request. If no protest is filed within the time allowed therefore, the proposed activity shall be deemed to be authorized effective the day after the time allowed for filing a protest. If a protest is filed and not withdrawn within 30 days after the allowed time for filing a protest, the instant request shall be treated as an application for authorization pursuant to section 7 of the NGA.

    Pursuant to section 157.9 of the Commission's rules, 18 CFR 157.9, within 90 days of this Notice the Commission staff will either: complete its environmental assessment (EA) and place it into the Commission's public record (eLibrary) for this proceeding, or issue a Notice of Schedule for Environmental Review. If a Notice of Schedule for Environmental Review is issued, it will indicate, among other milestones, the anticipated date for the Commission staff's issuance of the final environmental impact statement (FEIS) or EA for this proposal. The filing of the EA in the Commission's public record for this proceeding or the issuance of a Notice of Schedule for Environmental Review will serve to notify federal and state agencies of the timing for the completion of all necessary reviews, and the subsequent need to complete all federal authorizations within 90 days of the date of issuance of the Commission staff's FEIS or EA.

    Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commenters will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. Environmental commenters will not be required to serve copies of filed documents on all other parties. However, the non-party commenters, will not receive copies of all documents filed by other parties or issued by the Commission (except for the mailing of environmental documents issued by the Commission) and will not have the right to seek court review of the Commission's final order.

    The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the eFiling link at http://www.ferc.gov. Persons unable to file electronically should submit an original and seven copies of the protest or intervention to the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426.

    Dated: December 21, 2017. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2017-28086 Filed 12-27-17; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Project No. 14751-002] Alpine Pacific Utilities Hydro, LLC; Notice of Application Accepted for Filing With the Commission, Soliciting Motions To Intervene and Protests, Ready for Environmental Analysis, Intent To Waive Scoping, Soliciting Comments, Terms and Conditions, Recommendations, and Prescriptions

    Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection.

    a. Type of Application: Original Minor License.

    b. Project No.: 14751-002.

    c. Date filed: February 1, 2017.

    d. Applicant: Alpine Pacific Utilities Hydro, LLC.

    e. Name of Project: Fresno Dam Site Water Power Project.

    f. Location: On the Milk River in Hill County, Montana near the town of Kremlin at the existing Bureau of Reclamation Fresno Dam.

    g. Filed Pursuant to: Federal Power Act 16 U.S.C. 791(a)-825(r).

    h. Applicant Contact: Mr. Justin Ahmann, Alpine Pacific Utilities Hydro, LLC, 75 Somers Road, Somers, Montana 59932, (406) 755-1333.

    i. FERC Contact: John Matkowski, (202) 502-8576 or [email protected]

    j. Deadline for filing motions to intervene and protests, comments, terms and conditions, recommendations, and prescriptions: 60 days from the issuance date of this notice; reply comments are due 105 days from the issuance date of this notice.

    The Commission strongly encourages electronic filing. Please file motions to intervene and protests, comments, terms and conditions, recommendations, and prescriptions using the Commission's eFiling system at http://www.ferc.gov/docs-filing/efiling.asp. Commenters can submit brief comments up to 6,000 characters, without prior registration, using the eComment system at http://www.ferc.gov/docs-filing/ecomment.asp. You must include your name and contact information at the end of your comments. For assistance, please contact FERC Online Support at [email protected], (866) 208-3676 (toll free), or (202) 502-8659 (TTY). In lieu of electronic filing, please send a paper copy to: Secretary, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426. The first page of any filing should include docket number P-14751-002.

    The Commission's Rules of Practice require all intervenors filing documents with the Commission to serve a copy of that document on each person on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.

    k. This application has been accepted for filing and is now ready for environmental analysis.

    l. The proposed project would use the existing Fresno Dam, intake with trashrack, and outlet structure owned and operated by the Bureau of Reclamation and consist of the following new facilities: (1) Two penstock adapters consisting of (i) a 72-inch diameter circular section transitioning to (ii) a 72-inch-high by 60-inch wide rectangular section that connects the existing outlet works to (2) a series of rectangular concrete adapter boxes that apportion flow into either the proposed turbines or to the existing gate house; (3) an underground powerhouse containing one 875-kilowatt (kW) and one 625-kW Natel Energy turbine with a total rated capacity of 1.5 megawatts; (4) two 5-foot-wide by 6-foot-high, 85-foot-long concrete tailraces; (5) a 400-square-foot switchyard; (6) an approximately 3.35-mile-long, 12.74-kilovolt underground transmission line; and (7) appurtenant facilities. The proposed project would have an average annual generation of 6,251 megawatt-hours.

    m. Due to the applicant's close coordination with state and federal agencies during the preparation of the application and the lack of any study requests submitted during pre-filing consultation and in response to the Commission's tendering notice, we intend to waive scoping. Based on a review of the application, resource agency consultation letters, and comments filed to date, Commission staff intends to prepare a single environmental assessment (EA). The issues that need to be addressed in the EA have been adequately identified during the pre-filing period, which included a public meeting and site visit, and no new issues are likely to be identified through additional scoping. The EA will assess the potential effects of project construction and operation on geology and soils, aquatic, terrestrial, threatened and endangered species, recreation and land use, aesthetic, and cultural and historic resources.

    n. A copy of the application is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's website at http://www.ferc.gov using the “eLibrary” link. Enter the docket number excluding the last three digits in the docket number field to access the document. For assistance, contact FERC Online Support. A copy is also available for inspection and reproduction at the address in item h above.

    Register online at http://www.ferc.gov/docs-filing/esubscription.asp to be notified via email of new filings and issuances related to this or other pending projects. For assistance, contact FERC Online Support.

    o. Any qualified applicant desiring to file a competing application must submit to the Commission, on or before the specified intervention deadline date, a competing development application, or a notice of intent to file such an application. Submission of a timely notice of intent allows an interested person to file the competing development application no later than 120 days after the specified intervention deadline date. Applications for preliminary permits will not be accepted in response to this notice.

    A notice of intent must specify the exact name, business address, and telephone number of the prospective applicant, and must include an unequivocal statement of intent to submit a development application. A notice of intent must be served on the applicant(s) named in this public notice.

    Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211, and .214. In determining the appropriate action to take, the Commission will consider all protests or other comments filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application.

    All filings must (1) bear in all capital letters the title PROTEST, MOTION TO INTERVENE, NOTICE OF INTENT TO FILE COMPETING APPLICATION, COMPETING APPLICATION, COMMENTS, REPLY COMMENTS, RECOMMENDATIONS, TERMS AND CONDITIONS, or PRESCRIPTIONS; (2) set forth in the heading the name of the applicant and the project number of the application to which the filing responds; (3) furnish the name, address, and telephone number of the person protesting or intervening; and (4) otherwise comply with the requirements of 18 CFR 385.2001 through 385.2005. All comments, recommendations, terms and conditions or prescriptions must set forth their evidentiary basis and otherwise comply with the requirements of 18 CFR 4.34(b). Agencies may obtain copies of the application directly from the applicant. A copy of any protest or motion to intervene must be served upon each representative of the applicant specified in the particular application. A copy of all other filings in reference to this application must be accompanied by proof of service on all persons listed in the service list prepared by the Commission in this proceeding, in accordance with 18 CFR 4.34(b) and 385.2010.

    p. A license applicant must file no later than 60 days following the date of issuance of this notice: (1) A copy of the water quality certification; (2) a copy of the request for certification, including proof of the date on which the certifying agency received the request; or (3) evidence of waiver of water quality certification.

    q. Procedural schedule: We intend to accept the consultation that has occurred on this project during the pre-filing period as satisfying our requirements for the standard 3-stage consultation process under 18 CFR 4.38 and for National Environmental Policy Act scoping and the application will be processed according to the following procedural schedule. Revisions to the schedule may be made as appropriate.

    Milestone Target date Comments, recommendations, and terms and conditions due 60 days from issuance of this notice. Reply comments due 105 days from issuance of this notice. Notice of the availability of the EA August 2018. Dated: December 21, 2017. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2017-28093 Filed 12-27-17; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. EL18-34-000] Notice of Institution of Section 206 Proceeding and Refund Effective Date; PJM Interconnection, LLC

    On December 21, 2017, the Commission issued an order in Docket No. EL18-34-000, pursuant to section 206 of the Federal Power Act (FPA), 16 U.S.C. 824e (2012), instituting an investigation into whether PJM Interconnection, L.L.C.'s practices regarding the pricing of fast-start resources may be unjust and unreasonable. PJM Interconnection, L.L.C., 161 FERC 61,295 (2017).

    The refund effective date in Docket No. EL18-34-000, established pursuant to section 206(b) of the FPA, will be the date of publication of this notice in the Federal Register.

    Any interested person desiring to be heard in Docket No. EL18-34-000 must file a notice of intervention or motion to intervene, as appropriate, with the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, in accordance with Rule 214 of the Commission's Rules of Practice and Procedure, 18 CFR 385.214, within 21 days of the date of issuance of the order.

    Dated: December 21, 2017. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2017-28089 Filed 12-27-17; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. ID-4091-000] Laurito, James P.; Notice of Filing

    Take notice that on December 20, 2017, James P. Laurito filed an application for authorization to hold interlocking positions, pursuant to section 305(b) of the Federal Power Act, 16 U.S.C. 825d(b), and Part 45 of the regulations of the Federal Energy Regulatory Commission (Commission), 18 CFR 45.

    Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.

    The Commission encourages electronic submission of protests and interventions in lieu of paper using the eFiling link at http://www.ferc.gov. Persons unable to file electronically should submit an original and 5 copies of the protest or intervention to the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426.

    This filing is accessible on-line at http://www.ferc.gov, using the eLibrary link and is available for electronic review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the website that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email [email protected], or call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

    Comment Date: 5:00 p.m. Eastern Time on January 10, 2018.

    Dated: December 21, 2017. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2017-28091 Filed 12-27-17; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Combined Notice of Filings

    Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:

    Filings Instituting Proceedings

    Docket Number: PR18-14-000.

    Applicants: Columbia Gas of Ohio, Inc.

    Description: Tariff filing per 284.123(b),(e)/: COH SOH effective 11-29-2017.

    Filed Date: 12/15/17.

    Accession Number: 201712155202.

    Comments/Protests Due: 5 p.m. ET 1/5/18.

    Docket Numbers: RP18-257-000.

    Applicants: El Paso Natural Gas Company, L.L.C.

    Description: § 4(d) Rate Filing: Negotiated Rate Agreement Update (Pioneer Jan-Mar 2017) to be effective 1/1/2018.

    Filed Date: 12/19/17.

    Accession Number: 20171219-5203.

    Comments Due: 5 p.m. ET 1/2/18.

    Docket Numbers: RP18-258-000.

    Applicants: Natural Gas Pipeline Company of America.

    Description: § 4(d) Rate Filing: Amendment to NRA Tenaska Marketing Ventures to be effective 12/20/2017.

    Filed Date: 12/20/17.

    Accession Number: 20171220-5052.

    Comments Due: 5 p.m. ET 1/2/18.

    Docket Numbers: RP18-259-000.

    Applicants: Gulf South Pipeline Company, LP.

    Description: § 4(d) Rate Filing: Clean Up Table of Contents for Volume 2 to be effective 1/20/2018.

    Filed Date: 12/20/17.

    Accession Number: 20171220-5073.

    Comments Due: 5 p.m. ET 1/2/18.

    Docket Numbers: RP18-260-000.

    Applicants: Eastern Shore Natural Gas Company.

    Description: Compliance filing Filing to Comply—CP17-28, Negotiated Rate & Non-Conforming Service Agreements to be effective 12/14/2017.

    Filed Date: 12/20/17.

    Accession Number: 20171220-5076.

    Comments Due: 5 p.m. ET 1/2/18.

    Docket Numbers: RP18-261-000.

    Applicants: Stagecoach Pipeline & Storage Company LL.

    Description: § 4(d) Rate Filing: Stagecoach Pipeline & Storage Company LLC—Filing to Add Firm Storage Ratchets to be effective 2/1/2018.

    Filed Date: 12/20/17.

    Accession Number: 20171220-5106.

    Comments Due: 5 p.m. ET 1/2/18.

    Docket Numbers: RP18-262-000.

    Applicants: Texas Gas Transmission, LLC.

    Description: § 4(d) Rate Filing: Conversion of STF to FT Service Filing to be effective 1/22/2018.

    Filed Date: 12/20/17.

    Accession Number: 20171220-5135.

    Comments Due: 5 p.m. ET 1/2/18.

    Docket Numbers: RP18-263-000.

    Applicants: Enable Gas Transmission, LLC.

    Description: § 4(d) Rate Filing: Negotiated Rate Filing—January 2018 Continental 1011192 to be effective 1/1/2018.

    Filed Date: 12/20/17.

    Accession Number: 20171220-5155.

    Comments Due: 5 p.m. ET 1/2/18.

    Docket Numbers: RP18-264-000.

    Applicants: Destin Pipeline Company, L.L.C.

    Description: § 4(d) Rate Filing: Annual Fuel Retention Adjustment to be effective 1/1/2018.

    Filed Date: 12/20/17.

    Accession Number: 20171220-5158.

    Comments Due: 5 p.m. ET 1/2/18.

    Docket Numbers: RP18-265-000.

    Applicants: Equitrans, L.P.

    Description: § 4(d) Rate Filing: Negotiated Rate Service Agreement—EQT Energy Del Point Change 12202017 to be effective 12/20/2017.

    Filed Date: 12/20/17.

    Accession Number: 20171220-5199.

    Comments Due: 5 p.m. ET 1/2/18.

    Docket Numbers: RP18-266-000.

    Applicants: Equitrans, L.P.

    Description: § 4(d) Rate Filing: Terminate Negotiated Rate Service Agreement—BP to be effective 1/1/2018.

    Filed Date: 12/20/17.

    Accession Number: 20171220-5202.

    Comments Due: 5 p.m. ET 1/2/18.

    Docket Numbers: RP18-267-000.

    Applicants: Northern Border Pipeline Company.

    Description: § 4(d) Rate Filing: Sequent and Continental Neg Rate Agmts to be effective 1/1/2018.

    Filed Date: 12/21/17.

    Accession Number: 20171221-5037.

    Comments Due: 5 p.m. ET 1/2/18.

    The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.

    Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified date(s). Protests may be considered, but intervention is necessary to become a party to the proceeding.

    eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at: http://www.ferc.gov/docs-filing/efiling/filing-req.pdf. For other information, call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

    Dated: December 21, 2017. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2017-28085 Filed 12-27-17; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Notice of Commission Staff Attendance

    The Federal Energy Regulatory Commission (Commission) hereby gives notice that members of the Commission's staff may attend the following meetings related to the transmission planning activities of the New York Independent System Operator, Inc. (NYISO):

    NYISO Electric System Planning Working Group Meeting January 8, 2018, 10:00 a.m.-3:00 p.m. (EST)

    The above-referenced meeting will be via web conference and teleconference.

    The above-referenced meeting is open to stakeholders.

    Further information may be found at: http://www.nyiso.com/public/committees/documents.jsp?com=bic_espwg&directory=2018-01-08.

    NYISO Business Issues Committee Meeting January 17, 2018, 10:00 a.m.-4:00 p.m. (EST)

    The above-referenced meeting will be via web conference and teleconference.

    The above-referenced meeting is open to stakeholders.

    Further information may be found at: http://www.nyiso.com/public/committees/documents.jsp?com=bic&directory=2018-01-17.

    NYISO Operating Committee Meeting January 18, 2018, 10:00 a.m.-4:00 p.m. (EST)

    The above-referenced meeting will be via web conference and teleconference.

    The above-referenced meeting is open to stakeholders.

    Further information may be found at: http://www.nyiso.com/public/committees/documents.jsp?com=oc&directory=2018-01-18.

    NYISO Electric System Planning Working Group Meeting January 24, 2018, 10:00 a.m.-4:00 p.m. (EST)

    The above-referenced meeting will be via web conference and teleconference.

    The above-referenced meeting is open to stakeholders.

    Further information may be found at: http://www.nyiso.com/public/committees/documents.jsp?com=bic_espwg&directory=2018-01-24.

    NYISO Management Committee Meeting January 31, 2018, 10:00 a.m.-2:00 p.m. (EST)

    The above-referenced meeting will be via web conference and teleconference.

    The above-referenced meeting is open to stakeholders.

    Further information may be found at: http://www.nyiso.com/public/committees/documents.jsp?com=mc&directory=2018-01-31.

    The discussions at the meetings described above may address matters at issue in the following proceedings:

    New York Independent System Operator, Inc., Docket No. ER13-102.

    New York Independent System Operator, Inc., Docket No. ER15-2059.

    New York Independent System Operator, Inc., Docket No. ER17-2327.

    For more information, contact James Eason, Office of Energy Market Regulation, Federal Energy Regulatory Commission at (202) 502-8622 or [email protected]

    Dated: December 21, 2017. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2017-28096 Filed 12-27-17; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Combined Notice of Filings #1

    Take notice that the Commission received the following electric corporate filings:

    Docket Numbers: EC18-38-000.

    Applicants: Colton Power L.P., Fountain Valley Power, L.L.C., Harbor Cogeneration Company, LLC, KES Kingsburg, L.P., SWG Arapahoe, LLC, SWG Colorado, LLC, Valencia Power, LLC, Goal Line L.P.

    Description: Application for Authorization for Disposition of Jurisdictional Facilities and Request for Expedited Action of Colton Power L.P., et al.

    Filed Date: 12/20/17.

    Accession Number: 20171220-5240.

    Comments Due: 5 p.m. ET 1/10/18.

    Docket Numbers: EC18-39-000.

    Applicants: Access Industries, Inc., Calpine Corporation.

    Description: Application for Authorization under Section 203 of the Federal Power Act and Request for Expedited Consideration, et al. of Calpine Corporation, et al.

    Filed Date: 12/21/17.

    Accession Number: 20171221-5195.

    Comments Due: 5 p.m. ET 1/11/18.

    Take notice that the Commission received the following exempt wholesale generator filings:

    Docket Numbers: EG18-22-000.

    Applicants: Hardin Wind Energy LLC.

    Description: Notice of Self-Certification of Exempt Wholesale Generator Status of Hardin Wind Energy LLC.

    Filed Date: 12/21/17.

    Accession Number: 20171221-5153.

    Comments Due: 5 p.m. ET 1/11/18.

    Docket Numbers: EG18-23-000.

    Applicants: Hardin Wind Energy Holdings LLC.

    Description: Notice of Self-Certification of Exempt Wholesale Generator Status of Hardin Wind Energy Holdings LLC.

    Filed Date: 12/21/17.

    Accession Number: 20171221-5154.

    Comments Due: 5 p.m. ET 1/11/18.

    Docket Numbers: EG18-24-000.

    Applicants: Beech Ridge Energy II Holdings LLC.

    Description: Notice of Self-Certification of Exempt Wholesale Generator Status of Beech Ridge Energy II Holdings LLC.

    Filed Date: 12/21/17.

    Accession Number: 20171221-5155.

    Comments Due: 5 p.m. ET 1/11/18.

    Take notice that the Commission received the following electric rate filings:

    Docket Numbers: ER10-1276-007; ER10-1292-006; ER10-1287-006; ER10-1303-006; ER10-1319-008; ER10-1353-008.

    Applicants: Consumers Energy Company, CMS Energy Resource Management Company, Grayling Generation Station Limited Partnership, Genesee Power Station Limited Partnership, CMS Generation Michigan Power, LLC, Dearborn Industrial Generation, L.L.C.

    Description: Updated Market Power Analysis for the Central Region of Consumer Energy Company, et al.

    Filed Date: 12/19/17.

    Accession Number: 20171219-5246.

    Comments Due: 5 p.m. ET 2/20/18.

    Docket Numbers: ER12-348-006; ER15-1378-002.

    Applicants: Mercuria Energy America, Inc., Mercuria Commodities Canada Corporation.

    Description: Updated Triennial Market Analysis for the Southeast Region of the Mercuria Sellers.

    Filed Date: 12/20/17.

    Accession Number: 20171220-5250.

    Comments Due: 5 p.m. ET 2/20/18.

    Docket Numbers: ER16-323-004.

    Applicants: Ohio Valley Electric Corporation.

    Description: Updated Market Power Analysis in the MISO Balancing Area Authority of Ohio Valley Electric Corporation.

    Filed Date: 12/20/17.

    Accession Number: 20171220-5232.

    Comments Due: 5 p.m. ET 2/20/18.

    Docket Numbers: ER18-487-000.

    Applicants: Tampa Electric Company.

    Description: § 205(d) Rate Filing: Section 205 Requirements Depreciation Rates—Various Accounts to be effective 12/31/9998.

    Filed Date: 12/20/17.

    Accession Number: 20171220-5210.

    Comments Due: 5 p.m. ET 1/10/18.

    Docket Numbers: ER18-488-000.

    Applicants: San Diego Gas & Electric Company.

    Description: § 205(d) Rate Filing: 2018 SDGE RS Annual Update to Transmission Owner Tariff to be effective 1/1/2018.

    Filed Date: 12/20/17.

    Accession Number: 20171220-5211.

    Comments Due: 5 p.m. ET 1/10/18.

    Docket Numbers: ER18-489-000.

    Applicants: PJM Interconnection, L.L.C.

    Description: Request for Waiver and Shortened Answer Date of PJM Interconnection, L.L.C.

    Filed Date: 12/20/17.

    Accession Number: 20171220-5242.

    Comments Due: 5 p.m. ET 1/3/18.

    Docket Numbers: ER18-490-000.

    Applicants: Duke Energy Indiana, LLC.

    Description: Market-Based Triennial Review Filing: Central Triennial Duke Companies to be effective 2/19/2018.

    Filed Date: 12/21/17.

    Accession Number: 20171221-5055.

    Comments Due: 5 p.m. ET 1/11/18.

    Docket Numbers: ER18-491-000.

    Applicants: Hardin Wind Energy LLC.

    Description: Baseline eTariff Filing: Application for Market-Based Rate Authorization to be effective 2/20/2018.

    Filed Date: 12/21/17.

    Accession Number: 20171221-5091.

    Comments Due: 5 p.m. ET 1/11/18.

    Docket Numbers: ER18-491-001.

    Applicants: Hardin Wind Energy LLC.

    Description: Tariff Amendment: Supplement to Market-Based Rate Application to be effective 2/20/2018.

    Filed Date: 12/21/17.

    Accession Number: 20171221-5165.

    Comments Due: 5 p.m. ET 1/11/18.

    Docket Numbers: ER18-492-000.

    Applicants: Hardin Wind Energy Holdings LLC.

    Description: Baseline eTariff Filing: Application for Market-Based Rate Authorization to be effective 2/20/2018.

    Filed Date: 12/21/17.

    Accession Number: 20171221-5095.

    Comments Due: 5 p.m. ET 1/11/18.

    Docket Numbers: ER18-492-001.

    Applicants: Hardin Wind Energy Holdings LLC.

    Description: Tariff Amendment: Supplement to Market-Based Rate Application to be effective 2/20/2018.

    Filed Date: 12/21/17.

    Accession Number: 20171221-5166.

    Comments Due: 5 p.m. ET 1/11/18.

    Docket Numbers: ER18-493-000.

    Applicants: Virginia Electric and Power Company, PJM Interconnection, L.L.C.

    Description: § 205(d) Rate Filing: VEPCO Submits Revisions to OATT to Add Dominion M-2 to be effective 1/1/2018.

    Filed Date: 12/21/17.

    Accession Number: 20171221-5099.

    Comments Due: 5 p.m. ET 1/11/18.

    Docket Numbers: ER18-494-000.

    Applicants: Beech Ridge Energy II Holdings LLC.

    Description: Baseline eTariff Filing: Application for Market-Based Rate Authorization to be effective 2/20/2018.

    Filed Date: 12/21/17.

    Accession Number: 20171221-5114.

    Comments Due: 5 p.m. ET 1/11/18.

    Docket Numbers: ER18-494-001.

    Applicants: Beech Ridge Energy II Holdings LLC.

    Description: Tariff Amendment: Supplement to Market-Based Rate Application to be effective 2/20/2018.

    Filed Date: 12/21/17.

    Accession Number: 20171221-5167.

    Comments Due: 5 p.m. ET 1/11/18.

    Docket Numbers: ER18-495-000.

    Applicants: Southwestern Public Service Company.

    Description: § 205(d) Rate Filing: SPS Notice of Succession RS-136 TCEC to GSEC to be effective 1/1/2018.

    Filed Date: 12/21/17.

    Accession Number: 20171221-5140.

    Comments Due: 5 p.m. ET 1/11/18.

    Docket Numbers: ER18-496-000.

    Applicants: PJM Interconnection, L.L.C.

    Description: § 205(d) Rate Filing: Original Service Agreement No. 4856, Queue No. AA2-121/AB2-104 to be effective 11/21/2017.

    Filed Date: 12/21/17.

    Accession Number: 20171221-5158.

    Comments Due: 5 p.m. ET 1/11/18.

    Docket Numbers: ER18-498-000.

    Applicants: PJM Interconnection, L.L.C.

    Description: § 205(d) Rate Filing: Original Service Agreement No. 4872, Queue No. AA2-132 to be effective 11/21/2017.

    Filed Date: 12/21/17.

    Accession Number: 20171221-5237.

    Comments Due: 5 p.m. ET 1/11/18.

    Docket Numbers: ER18-499-000.

    Applicants: Southwestern Electric Power Company.

    Description: § 205(d) Rate Filing: SWEPCO-HOPE PSA RS#125 A&R Windcatcher to be effective 1/1/2018.

    Filed Date: 12/21/17.

    Accession Number: 20171221-5243.

    Comments Due: 5 p.m. ET 1/11/18.

    Docket Numbers: ER18-500-000.

    Applicants: Southwestern Electric Power Company.

    Description: § 205(d) Rate Filing: SWEPCO-Bentonville PSA RS#126 A&R Windcatcher to be effective 1/1/2018.

    Filed Date: 12/21/17.

    Accession Number: 20171221-5250.

    Comments Due: 5 p.m. ET 1/11/18.

    Take notice that the Commission received the following public utility holding company filings:

    Docket Numbers: PH18-1-000.

    Applicants: Énergir Inc.

    Description: Energir Inc. submits FERC 65-B Waiver Notification.

    Filed Date: 12/21/17.

    Accession Number: 20171221-5198.

    Comments Due: 5 p.m. ET 1/11/18.

    Docket Numbers: PH18-2-000.

    Applicants: Valener Inc.

    Description: Valener Inc. submits FERC 65-B Waiver Notification.

    Filed Date: 12/21/17.

    Accession Number: 20171221-5199.

    Comments Due: 5 p.m. ET 1/11/18.

    The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.

    Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.

    eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at: http://www.ferc.gov/docs-filing/efiling/filing-req.pdf. For other information, call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

    Dated: December 21, 2017. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2017-28084 Filed 12-27-17; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. EL18-35-000] Southwest Power Pool, Inc.; Notice of Institution of Section 206 Proceeding and Refund Effective Date

    On December 21, 2017, the Commission issued an order in Docket No. EL18-35-000, pursuant to section 206 of the Federal Power Act (FPA), 16 U.S.C. 824e (2012), instituting an investigation into whether Southwest Power Pool, Inc.'s (SPP) practices regarding the pricing of quick-start resources may be unjust and unreasonable. Southwest Power Pool, Inc., 161 FERC 61,296 (2017).

    The refund effective date in Docket No. EL18-35-000, established pursuant to section 206(b) of the FPA, will be the date of publication of this notice in the Federal Register.

    Any interested person desiring to be heard in Docket No. EL18-35-000 must file a notice of intervention or motion to intervene, as appropriate, with the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, in accordance with Rule 214 of the Commission's Rules of Practice and Procedure, 18 CFR 385.214, within 21 days of the date of issuance of the order.

    Dated: December 21, 2017. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2017-28090 Filed 12-27-17; 8:45 am] BILLING CODE 6717-01-P
    FEDERAL COMMUNICATIONS COMMISSION [OMB 3060-1204] Information Collection Being Reviewed by the Federal Communications Commission AGENCY:

    Federal Communications Commission.

    ACTION:

    Notice and request for comments.

    SUMMARY:

    As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995, the Federal Communications Commission (FCC or the Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collection. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees. The FCC may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid Office of Management and Budget (OMB) control number.

    DATES:

    Written PRA comments should be submitted on or before February 26, 2018. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.

    ADDRESSES:

    Direct all PRA comments to Nicole Ongele, FCC, via email [email protected] and to [email protected]

    FOR FURTHER INFORMATION CONTACT:

    For additional information about the information collection, contact Nicole Ongele at (202) 418-2991.

    SUPPLEMENTARY INFORMATION:

    As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520), the Federal Communications Commission (FCC or Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collections. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.

    OMB Control Number: 3060-1204.

    Title: Deployment of Text-to-911.

    Form Number: Not applicable.

    Type of Review: Extension of a currently approved collection.

    Respondents: Businesses or other-for-profit and state, local and tribal governments.

    Number of Respondents and Responses: 2,649 Respondents; 51,730 Responses.

    Estimated Time per Response: 1-8 hours.

    Frequency of Response: One-time; annual reporting requirements and third-party disclosure requirement.

    Obligation to Respond: Required to obtain or retain benefits. Statutory authority for these collections is contained in 47 U.S.C. 151, 152, 154(i), 154(j), 154(o), 251(e), 303(b), 303(g), 303(r), 316, and 403.

    Total Annual Burden: 69,883 hours.

    Total Annual Cost: No Cost.

    Privacy Act Impact Assessment: No Impact(s).

    Nature and Extent of Confidentiality: There is no need for confidentiality.

    Needs and Uses: In a Second Report and Order released on August 13, 2014, FCC 14-118, published at 79 FR 55367, September 16, 2014, the Commission adopted final rules—containing information collection requirements—to enable the Commission to implement text-to-911 service. The text-to-911 rules provide enhanced access to emergency services for people with disabilities and fulfilling a crucial role as an alternative means of emergency communication for the general public in situations where sending a text message to 911 as opposed to placing a voice call could be vital to the caller's safety. The Second Report and Order adopted rules to commence the implementation of text-to-911 service with an initial deadline of December 31, 2014 for all covered text providers to be capable of supporting text-to-911 service. The Second Report and Order also provided that covered text providers would then have a six-month implementation period. They must begin routing all 911 text messages to a Public Safety Answering Point (PSAP) by June 30, 2015 or within six months of a valid PSAP request for text-to-911 service, whichever is later. To implement these requirements, the Commission seeks to collect information primarily for a database in which PSAPs voluntarily register that they are technically ready to receive text messages to 911. As PSAPs become text-ready, they may either register in the PSAP database (or submit a notification to PS Docket Nos. 10-255 and 11-153), or provide other written notification reasonably acceptable to a covered text messaging provider. Either measure taken by the PSAP constitutes sufficient notification pursuant to the rules in the Second Report and Order. PSAPs and covered text providers may also agree to an alternative implementation timeframe (other than six months). Covered text providers must notify the FCC of the dates and terms of any such alternate timeframe within 30 days of the parties' agreement. Additionally, the rules adopted by the Second Report and Order include other information collections for third party notifications necessary for the implementation of text-to-911, including notifications to consumers, covered text providers, and the Commission. These notifications are essential to ensure that all affected parties are aware of the limitations, capabilities, and status of text-to-911 services. These information collections enable the Commission to meet the objectives for implementation of text-to-911 service and for compliance by covered text providers with the six-month implementation period in furtherance of the Commission's core mission to ensure the public's safety.

    Federal Communications Commission. Marlene H. Dortch, Secretary, Office of the Secretary.
    [FR Doc. 2017-27980 Filed 12-27-17; 8:45 am] BILLING CODE 6712-01-P
    FEDERAL DEPOSIT INSURANCE CORPORATION Agency Information Collection Activities: Proposed Collection Renewals; Comment Request (3064-0022 & -0027) AGENCY:

    Federal Deposit Insurance Corporation (FDIC).

    ACTION:

    Notice and request for comment.

    SUMMARY:

    The FDIC, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on the renewal of existing information collections, as required by the Paperwork Reduction Act of 1995. Currently, the FDIC is soliciting comment on renewal of the information collections described below.

    DATES:

    Comments must be submitted on or before February 26, 2018.

    ADDRESSES:

    Interested parties are invited to submit written comments to the FDIC by any of the following methods:

    http://www.FDIC.gov/regulations/laws/federal/notices.html.

    Email: [email protected] Include the name and number of the collection in the subject line of the message.

    Mail: Manny Cabeza (202-898-3767). Counsel, MB 3007, Federal Deposit Insurance Corporation, 550 17th Street NW, Washington, DC 20429.

    Hand Delivery: Comments may be hand-delivered to the guard station at the rear of the 17th Street Building (located on F Street), on business days between 7:00 a.m. and 5:00 p.m.

    All comments should refer to the relevant OMB control number. A copy of the comments may also be submitted to the OMB desk officer for the FDIC: Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Washington, DC 20503.

    FOR FURTHER INFORMATION CONTACT:

    Manny Cabeza (202-898-3767) at the FDIC address noted above.

    SUPPLEMENTARY INFORMATION:

    Proposal to renew the following currently approved collections of information:

    1. Title: Uniform Application and Termination Notice for Municipal Securities Principal or Representative Associated with a Bank Municipal Securities Dealer.

    OMB Number: 3064-0022.

    Form Number: MSD-4 and MSD-5

    Affected Public: Individuals and Insured state nonmember banks and state savings associations.

    Burden Estimate:

    Source and burden type Number of
  • respondents
  • Annual
  • frequency
  • Total
  • responses
  • Average time
  • per response
  • (minutes)
  • Estimated
  • annual
  • burden
  • (hours)
  • Form MSD-4 Reporting 2 On Occasion 2 60 2 Form MSD-5 Reporting 2 On Occasion 2 15 0.5 Total Estimated Annual Burden 2.5

    There is no change in the method or substance of the collection. The overall reduction in burden hours is a result of economic fluctuation. In particular, the number of respondents has decreased while the reporting frequency and the estimated time per response remain the same.

    General Description of Collection: The 1975 Amendments to the Securities Exchange Act of 1934 established a comprehensive framework for the regulation of the activities of municipal securities dealers. Under Section 15B(a) of the Securities Exchange Act, municipal securities dealers which are banks, or separately identifiable departments or divisions of banks engaging in municipal securities activities, are required to be registered with the Securities and Exchange Commission in accordance with such rules as the Municipal Securities Rulemaking Board (MSRB), a rulemaking authority established by the 1975 Amendments, may prescribe as necessary or appropriate in the public interest or for the protection of investors.

    One of the areas in which the Act directed the MSRB to promulgate rules is the qualifications of persons associated with municipal securities dealers as municipal securities principals and municipal securities representatives. The MSRB Rules require persons who are or seek to be associated with municipal securities dealers as municipal securities principals or municipal securities representatives to provide certain background information and conversely, require the municipal securities dealers to obtain the information from such persons. Generally, the information required to be furnished relates to employment history and professional background including any disciplinary sanctions and any claimed bases for exemption from MSRB examination requirements.

    The FDIC and the other two Federal bank regulatory agencies, the Comptroller of the Currency, and the Federal Reserve Board, have prescribed Forms MSD-4 to satisfy these requirements and have prescribed Form MSD-5 for notification by a bank municipal securities dealer that a municipal securities principal's or a municipal securities representative's association with the dealer has terminated and the reason for such termination. State nonmember banks and state savings associations that are municipal security dealers submit these forms, as applicable, to the FDIC as their appropriate regulatory agency for each person associated with the dealer as a municipal securities principal or municipal securities representative.

    2. Title: Request for Deregistration for Registered Transfer Agents.

    OMB Number: 3064-0027

    Form Number: 6342/12

    Affected Public: Insured state nonmember banks and state savings associations.

    Burden Estimate:

    Source and burden type Number of
  • respondents
  • Annual
  • frequency
  • Total
  • responses
  • Average time
  • per response
  • Estimated
  • annual
  • burden
  • (hours)
  • Form 6342/12 Reporting 1 On Occasion 1 0.42 0.42

    There is no change in the method or substance of the collection. There is an overall reduction in burden hours which is the result of (1) economic fluctuation reflected by a decrease in the number of FDIC-supervised institutions and (2) a decrease in the number of requests for deregistration of a registered transfer agent forms submitted to the FDIC.

    General Description of Collection: Under the Securities Exchange Act of 1934 (15 U.S.C. 78q-1), an insured nonmember bank (or a subsidiary of such a bank) that functions as a transfer agent may withdraw from registration as a transfer agent by filing a written notice of withdrawal with the FDIC. The FDIC requires such banks to file FDIC Form 6342/12 as the written notice of withdrawal.

    Request for Comment: Comments are invited on: (a) Whether the collections of information are necessary for the proper performance of the FDIC's functions, including whether the information has practical utility; (b) the accuracy of the estimates of the burden of the information collections, including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collections of information on respondents, including through the use of automated collection techniques or other forms of information technology. All comments will become a matter of public record.

    Dated at Washington, DC, on December 22, 2017. Federal Deposit Insurance Corporation. Valerie J. Best, Assistant Executive Secretary.
    [FR Doc. 2017-28068 Filed 12-27-17; 8:45 am] BILLING CODE 6714-01-P
    FEDERAL DEPOSIT INSURANCE CORPORATION Agency Information Collection Activities: Proposed Collection Renewal; Comment Request (OMB No. 3064-0084) AGENCY:

    Federal Deposit Insurance Corporation (FDIC).

    ACTION:

    Notice and request for comment.

    SUMMARY:

    The FDIC, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on the renewal of the existing information collection, as required by the Paperwork Reduction Act of 1995. Currently, the FDIC is soliciting comment on renewal of the information collection described below.

    DATES:

    Comments must be submitted on or before February 26, 2018.

    ADDRESSES:

    Interested parties are invited to submit written comments to the FDIC by any of the following methods:

    http://www.FDIC.gov/regulations/laws/federal/notices.html.

    Email: [email protected] Include the name and number of the collection in the subject line of the message.

    Mail: Jennifer Jones (202-898-6768), Counsel, MB-3105, Federal Deposit Insurance Corporation, 550 17th Street NW, Washington, DC 20429.

    Hand Delivery: Comments may be hand-delivered to the guard station at the rear of the 17th Street Building (located on F Street), on business days between 7:00 a.m. and 5:00 p.m.

    All comments should refer to the relevant OMB control number. A copy of the comments may also be submitted to the OMB desk officer for the FDIC: Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Washington, DC 20503.

    FOR FURTHER INFORMATION CONTACT:

    Jennifer Jones (202-898-6768), at the FDIC address above.

    SUPPLEMENTARY INFORMATION:

    Proposal to renew the following currently approved collections of information:

    1. Title: Account Based Disclosures in Connection with Consumer Financial Protection Bureau Regulations E and DD and Federal Reserve Regulation CC.

    OMB Number: 3064-0084.

    Form Number: None.

    Affected Public: FDIC-Supervised Institutions.

    Burden Estimate:

    Summary of Annual Burden Type of
  • burden
  • Obligation to
  • respond
  • Estimated
  • number of
  • respondents
  • Estimated
  • time per
  • response
  • (hours)
  • Estimated
  • frequency
  • Frequency
  • of response
  • Total
  • annual
  • estimated
  • burden
  • Reg E—12 C.F.R. Part 1005 Initial disclosures: General (1005.7(b)) Disclosure Mandatory 3,674 0.025 83 On Occasion 7,624 Payroll cards (1005.18(c)(1)) Disclosure Mandatory 6 0.025 5,000 On Occasion 750 Change-in-terms (1005.8(a)) Disclosure Mandatory 3,674 0.017 113 On Occasion 6,919 Transaction disclosures (sections 1005.9(a) and 1005.10) Disclosure 0 Periodic statements (section 1005.9(b)) Disclosure 0 Error resolution rules: General (1005.8(b) and 1005.11) Disclosure Mandatory 3,674 0.500 3 On Occasion 5,511 Payroll cards (1005.18) Disclosure Mandatory 6 0.500 8 On Occasion 24 Overdraft opt-in disclosures (1005.17, FRB r-1343): Revise and update initial disclosures (1005.17(c)(2)) for new customers Disclosure Mandatory 3,645 16.000 1 On Occasion 58,320 Prepare and send new opt-in notices to existing customers (1005.17(c)(1)) Disclosure Mandatory 3,645 16.000 1 On Occasion 58,320 Consumer response (section 1005.17) Recordkeeping Voluntary 3,645 0.083 7,207 On Occasion 2,189,126 Gift card/gift certificate (section 1005.20, FRB R-1377): Exclusion policies & procedures (1005.20(b)(2)) one-time Recordkeeping Mandatory 6 40.000 1 On Occasion 240 Exclusion policies & procedures (1005.20(b)(2)) ongoing Recordkeeping Mandatory 6 8.000 1 On Occasion 48 Policy & procedures (1005.20(e)(1)) one-time Recordkeeping Mandatory 6 40.000 1 On Occasion 240 Policy & procedures (1005.20(e)(1)) ongoing Recordkeeping Mandatory 6 8.000 1 On Occasion 48 Systems change to implement disclosure update (1005.20(e)(3)) Disclosure Mandatory 6 40.000 1 On Occasion 240 Subtotal Reg E Burden 2,327,410 Regulation CC—12 C.F.R. Part 229 Specific availability policy disclosure (initial notice, upon request, upon change in policy) (sections 229.16, 229.17 and 229.18(d)) Disclosure Mandatory 3,674 0.017 140 On Occasion 8,573 Case-by-case hold notice (section 229.16(c)) Disclosure Mandatory 3,674 0.050 717 On Occasion 131,713 Notice of exceptions to hold policy (section 229.13(g)) Disclosure Mandatory 3,674 0.050 247 On Occasion 45,374 Notice posted where consumers make deposits (including at ATMs) (sections 229.18(b) and 229.18(c)) Disclosure Mandatory 3,674 0.250 1 On Occasion 919 Notice of changes in policy (section 229.18(e)) Disclosure Mandatory 16 20.000 1 On Occasion 320 Annual notice of new ATMs (section 229.18(e)) (see Appendix E to Part 229, Commentary, section XII, E., comment no. 3) Disclosure Mandatory 3,674 5.000 1 On Occasion 18,370 Notice of nonpayment—notice to depositary bank (section 229.33(a) and (d)) Disclosure Mandatory 3,674 0.017 2,211 On Occasion 135,387 Response to consumer's recredit claim (validation, denial, reversal) (section 229.54(e)) Disclosure Mandatory 3,674 0.250 12 On Occasion 11,022 Bank's claim against an indemnifying bank (section 229.55) Reporting Mandatory 3,674 0.250 5 On Occasion 4,593 Consumer awareness disclosure (section 229.57) Disclosure Mandatory 3,674 0.017 170 On Occasion 10,410 Reg CC Consumer Burden—Expedited recredit claim notice (section 229.54(a) and (b)(2)) Reporting Mandatory 3,674 0.250 8 On Occasion 7,348 Subtotal Reg CC Burden 374,027 Regulation DD—12 C.F.R. Part 1030 Account disclosures (upon request and new accounts) (section 1030.4) Disclosure Mandatory 3,674 0.025 170 On Occasion 15,615 Subsequent notices (section 1030.5): Change in terms Disclosure Mandatory 3,674 0.017 380 On Occasion 23,269 Prematurity (renewal) notices Disclosure Mandatory 3,674 0.017 340 On Occasion 20,819 Disclosures on periodic statements (section 1030.6) Disclosure Mandatory 3,674 4.000 12 On Occasion 176,352 Advertising (section 1030.8) Disclosure Mandatory 3,674 0.500 12 On Occasion 22,044 Subtotal Reg DD Burden 258,099 Total Burden 2,959,536

    General Description of Collection: Regulations E & DD (Consumer Financial Protection Bureau's Regulations) and Regulation CC (the Federal Reserve's Regulation) ensure adequate disclosures regarding accounts, including electronic fund transfer services, availability of funds, and fees and annual percentage yield for deposit accounts. Generally, the Regulation E disclosures are designed to ensure consumers receive adequate disclosure of basic terms, costs, and rights relating to electronic fund transfer (EFT) services provided to them so that they can make informed decisions. Institutions offering EFT services must disclose to consumers certain information, including: initial and updated EFT terms, transaction information, the consumer's potential liability for unauthorized transfers, and error resolution rights and procedures.

    Like Regulation E, Regulation CC has consumer protection disclosure requirements. Specifically, Regulation CC requires depository institutions to make funds deposited in transaction accounts available within specified time periods, disclose their availability policies to customers, and begin accruing interest on such deposits promptly. The disclosures are intended to alert customers that their ability to use deposited funds may be delayed, prevent unintentional (and costly) overdrafts, and allow customers to compare the policies of different institutions before deciding at which institution to deposit funds. Depository institutions must also provide an awareness disclosure regarding substitute checks. The regulation also requires notice to the depositary bank and to a customer of nonpayment of a check.

    Regulation DD also has similar consumer protection disclosure requirements that are intended to assist consumers in comparing deposit accounts offered by institutions, principally through the disclosure of fees, the annual percentage yield, and other account terms. Regulation DD requires depository institutions to disclose yields, fees, and other terms concerning deposit accounts to consumers at account opening, upon request, and when changes in terms occur. Depository institutions that provide periodic statements are required to include information about fees imposed, interest earned, and the annual percentage yield (APY) earned during those statement periods. It also contains rules about advertising deposit accounts.

    There is no change in the method or substance of the collection. The overall reduction in burden hours is the result of economic fluctuation and the reduced number of FDIC-supervised institutions since the last submission in 2014. In particular, the number of respondents has decreased while the hours per response and frequency of responses have remained the same.

    Request for Comment: Comments are invited on: (a) Whether the collection of information is necessary for the proper performance of the FDIC's functions, including whether the information has practical utility; (b) the accuracy of the estimates of the burden of the information collection, including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. All comments will become a matter of public record.

    Dated at Washington, DC, on December 22, 2017. Federal Deposit Insurance Corporation. Valerie J. Best, Assistant Executive Secretary.
    [FR Doc. 2017-28067 Filed 12-27-17; 8:45 am] BILLING CODE 6714-01-P
    FEDERAL DEPOSIT INSURANCE CORPORATION Update to Notice of Financial Institutions for Which the Federal Deposit Insurance Corporation has Been Appointed Either Receiver, Liquidator, or Manager AGENCY:

    Federal Deposit Insurance Corporation.

    ACTION:

    Update listing of financial institutions in liquidation.

    SUMMARY:

    Notice is hereby given that the Federal Deposit Insurance Corporation (Corporation) has been appointed the sole receiver for the following financial institutions effective as of the Date Closed as indicated in the listing.

    SUPPLEMENTARY INFORMATION:

    This list (as updated from time to time in the Federal Register) may be relied upon as “of record” notice that the Corporation has been appointed receiver for purposes of the statement of policy published in the July 2, 1992, issue of the Federal Register (57 FR 29491). For further information concerning the identification of any institutions which have been placed in liquidation, please visit the Corporation website at www.fdic.gov/bank/individual/failed/banklist.html, or contact the Manager of Receivership Oversight in the a