Federal Register Vol. 83, No.125,

Federal Register Volume 83, Issue 125 (June 28, 2018)

Page Range30285-30524
FR Document

83_FR_125
Current View
Page and SubjectPDF
83 FR 30457 - Government in the Sunshine Act Meeting NoticePDF
83 FR 30453 - Extension of Employment Authorization for Nepali F-1 Nonimmigrant Students Experiencing Severe Economic Hardship Relating to the April 25, 2015 Earthquake in the Federal Democratic Republic of NepalPDF
83 FR 30400 - Agenda and Notice of Public Meeting of the Vermont Advisory CommitteePDF
83 FR 30314 - Special Conditions: Airbus Model A318, A319, A320 and A321 Series Airplanes; Electronic System Security Protection From Unauthorized External AccessPDF
83 FR 30316 - Special Conditions: Airbus Model A318, A319, A320 and A321 Series Airplanes; Electronic System Security Protection From Unauthorized Internal AccessPDF
83 FR 30437 - Pesticide Product Registration; Receipt of Applications for New UsesPDF
83 FR 30443 - Lambda-Cyhalothrin; Receipt of Application for Emergency Exemption, Solicitation of Public CommentPDF
83 FR 30446 - Access to Confidential Business Information by Industrial Economics IncorporatedPDF
83 FR 30438 - Certain New Chemical Substances; Receipt and Status Information for March 2018PDF
83 FR 30322 - Amendments to the Commission's Freedom of Information Act RegulationsPDF
83 FR 30455 - National Register of Historic Places; Notification of Pending Nominations and Related ActionsPDF
83 FR 30421 - Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Mukilteo Multimodal Project-Season 3PDF
83 FR 30335 - Iranian Transactions and Sanctions RegulationsPDF
83 FR 30462 - Proposal Review Panel for Materials Research; Notice of MeetingPDF
83 FR 30477 - Proposed Priorities for Amendment CyclePDF
83 FR 30476 - Requests for Applications; Practitioners Advisory GroupPDF
83 FR 30403 - National Conference on Weights and Measures 103rd Annual MeetingPDF
83 FR 30475 - Agency Information Collection Activities: Requests for Comments; Clearance of Renewed Approval of Information Collection: Financial Responsibility for Licensed Launch ActivitiesPDF
83 FR 30474 - Agency Information Collection Activities: Requests for Comments; Clearance of Renewed Approval of Information Collection: Advisory Circular (AC): Reporting of Laser Illumination of AircraftPDF
83 FR 30470 - New Postal ProductsPDF
83 FR 30397 - Submission for OMB Review; Comment RequestPDF
83 FR 30343 - Anchorage Grounds; Saint Lawrence Seaway, Cape Vincent, New YorkPDF
83 FR 30370 - Energy Conservation Program: Test Procedures for Cooking Products, Notice of Petition for RulemakingPDF
83 FR 30420 - Science and Technology for America's Oceans: A Decadal VisionPDF
83 FR 30442 - Information Collection Request Submitted to OMB for Review and Approval; Comment Request; Application for Reimbursement to Local Governments for Emergency Response to Hazardous Substance Releases Under CERCLA Section 123 (Renewal)PDF
83 FR 30445 - Information Collection Request Submitted to OMB for Review and Approval; Comment Request; NESHAP for Electric Arc Furnace Steelmaking Facilities (Renewal)PDF
83 FR 30444 - Information Collection Request Submitted to OMB for Review and Approval; Comment Request; NESHAP for Primary Aluminum Reduction Plants (Renewal)PDF
83 FR 30446 - Information Collection Request Submitted to OMB for Review and Approval; Comment Request; Contractor Conflicts of Interest (Renewal)PDF
83 FR 30429 - Defense Innovation Board; Notice of Federal Advisory Committee MeetingPDF
83 FR 30368 - Fisheries of the Exclusive Economic Zone Off Alaska; Alaska Plaice in the Bering Sea and Aleutian Islands Management AreaPDF
83 FR 30369 - Fisheries of the Exclusive Economic Zone Off Alaska; Other Flatfish in the Bering Sea and Aleutian Islands Management AreaPDF
83 FR 30401 - Foreign-Trade Zone (FTZ) 158-Vicksburg/Jackson, Mississippi; Authorization of Production Activity; International Converter (Insulation Facer); Iuka, MississippiPDF
83 FR 30401 - Foreign-Trade Zone (FTZ) 138-Franklin County, Ohio; Authorization of Production Activity; International Converter (Insulation Facer); Caldwell, OhioPDF
83 FR 30447 - Change in Bank Control Notices; Acquisitions of Shares of a Bank or Bank Holding CompanyPDF
83 FR 30430 - Applications for New Awards; Statewide Family Engagement CentersPDF
83 FR 30338 - Special Local Regulation; Gulf of Mexico; Sarasota, FLPDF
83 FR 30397 - Notice of Request for Extension and Revision of a Currently Approved Information CollectionPDF
83 FR 30399 - Notice of Request for Revision of a Currently Approved Information CollectionPDF
83 FR 30382 - Endangered and Threatened Wildlife and Plants; Proposed Replacement of the Regulations for the Nonessential Experimental Population of Red Wolves in Northeastern North CarolinaPDF
83 FR 30478 - Agency Information Collection Activity Under OMB Review: Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion (Documents and Information Required for Specially Adapted Housing Assistive Technology Grant) and Scoring Criteria for SAH Assistive Technology GrantsPDF
83 FR 30333 - Addition to the National NetworkPDF
83 FR 30457 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Extension Without Change of a Currently Approved Collection: Application for Explosives License or Permit-ATF F 5400.13/5400.16PDF
83 FR 30458 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Revision of a Currently Approved Collection: Notification to Fire Safety Authority of Storage of Explosive MaterialsPDF
83 FR 30345 - Security Zone; Seattle's Seafair Fleet Week Moving Vessels, Puget Sound, WAPDF
83 FR 30340 - Special Local Regulation; Corpus Christi Bay, Corpus Christi, TXPDF
83 FR 30449 - Office of the Secretary; Amended Notice of MeetingPDF
83 FR 30448 - Center for Scientific Review; Notice of Closed MeetingPDF
83 FR 30448 - Prospective Grant of an Exclusive Patent License: Development of an Anti-Mesothelin Chimeric Antigen Receptor (CAR) for the Treatment of Human CancerPDF
83 FR 30462 - Southern Nuclear Operating Company, Inc.; Vogtle Electric Generating Plant, Units 3 and 4; Technical Specifications for Reactor Coolant System Vacuum Fill and Inspections, Tests, Analyses, and Acceptance Criteria for Containment FloodupPDF
83 FR 30476 - Proposed Collection of Information: Annual Letters-Certificates of Authority (A) and Admitted Reinsurer (B)PDF
83 FR 30400 - Submission for OMB Review; Comment RequestPDF
83 FR 30398 - Submission for OMB Review; Comment RequestPDF
83 FR 30471 - Self-Regulatory Organizations; BOX Options Exchange LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Rule 7260 by Extending the Penny Pilot Program Through December 31, 2018PDF
83 FR 30471 - Self-Regulatory Organizations; BOX Options Exchange LLC; Notice of Withdrawal of Proposed Rule Change To Amend Rules 7150 and 7245PDF
83 FR 30473 - Self-Regulatory Organizations; NYSE American LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Rule 7.35EPDF
83 FR 30460 - Records Schedules; Availability and Request for CommentsPDF
83 FR 30456 - Notice of Receipt of Complaint; Solicitation of Comments Relating to the Public InterestPDF
83 FR 30459 - Division of Longshore and Harbor Workers' Compensation Proposed Renewal of Existing Collection; Comment RequestPDF
83 FR 30451 - Proposed Flood Hazard DeterminationsPDF
83 FR 30450 - Proposed Flood Hazard DeterminationsPDF
83 FR 30471 - International Product Change-Global Expedited Package Services-Non-Published RatesPDF
83 FR 30449 - Notice of MeetingsPDF
83 FR 30285 - Miscellaneous CorrectionsPDF
83 FR 30469 - Monitoring the Effectiveness of Maintenance at Nuclear Power PlantsPDF
83 FR 30317 - Criteria and Process for the Cancellation of Standard Instrument Approach Procedures as Part of the National Procedures Assessment (NPA)PDF
83 FR 30465 - Tennessee Valley Authority, Browns Ferry Nuclear Plant, Units 1, 2, and 3, and Independent Spent Fuel Storage Installation; Sequoyah Nuclear Plant, Units 1 and 2, and Independent Spent Fuel Storage Installation; Watts Bar Nuclear Plant, Units 1 and 2, and Independent Spent Fuel Storage InstallationPDF
83 FR 30459 - Notice of Lodging of Proposed Consent Decree Under the Clean Water ActPDF
83 FR 30406 - Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Service Pier Extension Project on Naval Base Kitsap Bangor, WashingtonPDF
83 FR 30289 - Chartering and Field of MembershipPDF
83 FR 30447 - Agency Information Collection Activities; Submission for Office of Management and Budget Review; Comment Request; State Enforcement NotificationsPDF
83 FR 30301 - Bylaws; Voluntary Mergers of Federally Insured Credit UnionsPDF
83 FR 30380 - Air Plan Approval; Washington; Interstate Transport Requirements for the 2012 PM2.5PDF
83 FR 30464 - Southern Nuclear Operating Company, Inc.; Vogtle Electric Generating Plant, Units 3 and 4; Changes to Containment Cooling and Spent Fuel Pool Makeup StrategiesPDF
83 FR 30364 - Service Rules Governing Narrowband Operations in the 769-775/799-805 MHz BandsPDF
83 FR 30401 - Certain Crystalline Silicon Photovoltaic Products From Taiwan: Final Results of Antidumping Duty Administrative Review; 2016-2017PDF
83 FR 30348 - Air Plan Approval; Iowa; Amendment to the Administrative Consent Order, Grain Processing Corporation, Muscatine, Iowa; Final RulePDF
83 FR 30350 - Approval and Promulgation of Air Quality Implementation Plans; Minnesota; Regional Haze Progress ReportPDF
83 FR 30370 - Airworthiness Directives; International Aero Engines (IAE) Turbofan EnginesPDF
83 FR 30368 - Radio Broadcasting Services; Desert Hills, ArizonaPDF
83 FR 30377 - Airworthiness Directives; BAE Systems (Operations) Limited AirplanesPDF
83 FR 30480 - Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to a Marine Geophysical Survey in the North Pacific OceanPDF
83 FR 30352 - Approval of Nebraska Air Quality Implementation Plans; Adoption of a New Chapter Under the Nebraska Administrative CodePDF
83 FR 30356 - Oklahoma: Approval of State Coal Combustion Residuals Permit ProgramPDF

Issue

83 125 Thursday, June 28, 2018 Contents Agricultural Marketing Agricultural Marketing Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 30397 2018-13911 Agriculture Agriculture Department See

Agricultural Marketing Service

See

Foreign Agricultural Service

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 30397-30399 2018-13889 2018-13929
Alcohol Tobacco Firearms Alcohol, Tobacco, Firearms, and Explosives Bureau NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Application for Explosives License or Permit, 30457-30458 2018-13901 Notification to Fire Safety Authority of Storage of Explosive Materials, 30458-30459 2018-13900 Civil Rights Civil Rights Commission NOTICES Meetings: Vermont Advisory Committee, 30400 2018-13950 Coast Guard Coast Guard RULES Anchorage Grounds: Saint Lawrence Seaway, Cape Vincent, NY, 30343-30345 2018-13928 Security Zones: Seattle's Seafair Fleet Week Moving Vessels, Puget Sound, WA, 30345-30348 2018-13899 Special Local Regulations: Corpus Christi Bay, Corpus Christi, TX, 30340-30343 2018-13898 Gulf of Mexico; Sarasota, FL, 30338-30340 2018-13912 Commerce Commerce Department See

Foreign-Trade Zones Board

See

International Trade Administration

See

National Institute of Standards and Technology

See

National Oceanic and Atmospheric Administration

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 30400-30401 2018-13890
Defense Department Defense Department NOTICES Meetings: Defense Innovation Board, 30429-30430 2018-13919 Education Department Education Department NOTICES New Awards; Applications: Statewide Family Engagement Centers, 30430-30437 2018-13913 Energy Department Energy Department PROPOSED RULES Energy Conservation Program: Test Procedures for Cooking Products, Notice of Petition for Rulemaking, 30370 2018-13927 Environmental Protection Environmental Protection Agency RULES Air Quality State Implementation Plans; Approvals and Promulgations: Iowa; Amendment to Administrative Consent Order, Grain Processing Corp., Muscatine, IA, 30348-30350 2018-13857 Minnesota; Regional Haze Progress Report, 30350-30352 2018-13825 Nebraska; Adoption of New Chapter under Administrative Code, 30352-30355 2018-13723 State Coal Combustion Residuals Permit Programs; Approvals: Oklahoma, 30356-30364 2018-13461 PROPOSED RULES Air Quality State Implementation Plans; Approvals and Promulgations: Washington; Interstate Transport Requirements for 2012 PM2.5 NAAQS, 30380-30382 2018-13861 NOTICES Access to Confidential Business Information: Industrial Economics, Inc., 30446 2018-13945 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Application for Reimbursement to Local Governments for Emergency Response to Hazardous Substance Releases under CERCLA Section 123, 30442-30443 2018-13924 Contractor Conflicts of Interest, 30446-30447 2018-13921 NESHAP for Electric Arc Furnace Steelmaking Facilities, 30445-30446 2018-13923 NESHAP for Primary Aluminum Reduction Plants, 30444-30445 2018-13922 Applications for Emergency Exemptions: Lambda-Cyhalothrin, 30443-30444 2018-13946 Certain New Chemical Substances: Receipt and Status Information for March 2018, 30438-30442 2018-13944 Pesticide Product Registrations: Receipt of Applications for New Uses, 30437-30438 2018-13947 Federal Aviation Federal Aviation Administration RULES Criteria and Process for Cancellation of Standard Instrument Approach Procedures as Part of the National Procedures Assessment, 30317-30322 2018-13875 Special Conditions: Airbus Model A318, A319, A320 and A321 Series Airplanes; Electronic System Security Protection from Unauthorized External Access, 30314-30316 2018-13949 Airbus Model A318, A319, A320 and A321 Series Airplanes; Electronic System Security Protection from Unauthorized Internal Access, 30316-30317 2018-13948 PROPOSED RULES Airworthiness Directives: BAE Systems (Operations) Limited Airplanes, 30377-30380 2018-13782 International Aero Engines (IAE) turbofan engines, 30370-30377 2018-13795 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Advisory Circular: Reporting of Laser Illumination of Aircraft, 30474-30475 2018-13931 Financial Responsibility for Licensed Launch Activities, 30475-30476 2018-13933 Federal Communications Federal Communications Commission RULES Radio Broadcast Services: Desert Hills, AZ, 30368 2018-13794 Service Rules Governing Narrowband Operations in 769-775/799-805 MHz Bands, 30364-30368 2018-13859 Federal Emergency Federal Emergency Management Agency NOTICES Flood Hazard Determinations; Proposals, 30450-30453 2018-13880 2018-13881 Federal Highway Federal Highway Administration RULES Additions to National Network, 30333-30335 2018-13903 Federal Reserve Federal Reserve System NOTICES Changes in Bank Control: Acquisitions of Shares of a Bank or Bank Holding Company, 30447 2018-13914 Fiscal Fiscal Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Annual Letters—Certificates of Authority and Admitted Reinsurer, 30476 2018-13891 Fish Fish and Wildlife Service PROPOSED RULES Endangered and Threatened Species: Nonessential Experimental Population of Red Wolves in Northeastern North Carolina, 30382-30396 2018-13906 Food and Drug Food and Drug Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: State Enforcement Notifications, 30447-30448 2018-13868 Foreign Agricultural Foreign Agricultural Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 30399-30400 2018-13910 Foreign Assets Foreign Assets Control Office RULES Iranian Transactions and Sanctions Regulations, 30335-30338 2018-13939 Foreign Trade Foreign-Trade Zones Board NOTICES Production Activities: Foreign-Trade Zone 138—Franklin County, OH; International Converter (Insulation Facer), Caldwell, OH, 30401 2018-13915 Foreign-Trade Zone 158—Vicksburg/Jackson, MS; International Converter (Insulation Facer), Iuka, MS, 30401 2018-13916 Health and Human Health and Human Services Department See

Food and Drug Administration

See

National Institutes of Health

See

Substance Abuse and Mental Health Services Administration

Homeland Homeland Security Department See

Coast Guard

See

Federal Emergency Management Agency

NOTICES Employment Authorizations; Extensions: Nepali F-1 Nonimmigrant Students Experiencing Severe Economic Hardship Relating to April 25, 2015 Earthquake in Federal Democratic Republic of Nepal, 30453-30455 2018-13964
Interior Interior Department See

Fish and Wildlife Service

See

National Park Service

International Trade Adm International Trade Administration NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Certain Crystalline Silicon Photovoltaic Products from Taiwan; Administrative Review (2016-2017), 30401-30403 2018-13858 International Trade Com International Trade Commission NOTICES Complaints: Certain Height-Adjustable Desk Platforms and Components Thereof, 30456-30457 2018-13883 Meetings; Sunshine Act, 30457 2018-14000 2018-14001 Justice Department Justice Department See

Alcohol, Tobacco, Firearms, and Explosives Bureau

NOTICES Proposed Consent Decrees under the Clean Water Act, 30459 2018-13873
Labor Department Labor Department See

Workers Compensation Programs Office

National Archives National Archives and Records Administration NOTICES Records Schedules, 30460-30462 2018-13884 National Credit National Credit Union Administration RULES Bylaws; Voluntary Mergers of Federally Insured Credit Unions, 30301-30314 2018-13867 Chartering and Field of Membership, 30289-30301 2018-13869 National Institute National Institute of Standards and Technology NOTICES Meetings: National Conference on Weights and Measures, 30403-30405 2018-13935 National Institute National Institutes of Health NOTICES Meetings: Center for Scientific Review, 30448 2018-13894 Interagency Pain Research Coordinating Committee, 30449 2018-13895 Prospective Grants of Exclusive Patent Licenses: Development of Anti-Mesothelin Chimeric Antigen Receptor for Treatment of Human Cancer, 30448-30449 2018-13893 National Oceanic National Oceanic and Atmospheric Administration RULES Fisheries of the Exclusive Economic Zone off Alaska: Alaska Plaice in Bering Sea and Aleutian Islands Management Area, 30368-30369 2018-13918 Other flatfish in Bering Sea and Aleutian Islands Management Area, 30369 2018-13917 NOTICES Science and Technology for America's Oceans: A Decadal Vision, 30420 2018-13926 Takes of Marine Mammals Incidental to Specified Activities: Marine Geophysical Survey in North Pacific Ocean, 30480-30524 2018-13732 Mukilteo Multimodal Project—Season 3, 30421-30429 2018-13940 Service Pier Extension Project on Naval Base Kitsap Bangor, WA, 30406-30420 2018-13870 National Park National Park Service NOTICES National Register of Historic Places: Pending Nominations and Related Actions, 30455-30456 2018-13941 National Science National Science Foundation NOTICES Meetings: Proposal Review Panel for Materials Research, 30462 2018-13897 2018-13938 Nuclear Regulatory Nuclear Regulatory Commission RULES Miscellaneous Corrections, 30285-30289 2018-13877 NOTICES Exemptions and Combined Licenses; Amendments: Southern Nuclear Operating Co., Inc.; Vogtle Electric Generating Plant, Units 3 and 4; Changes to Containment Cooling and Spent Fuel Pool Makeup Strategies, 30464-30465 2018-13860 Southern Nuclear Operating Co., Inc.; Vogtle Electric Generating Plant, Units 3 and 4; Technical Specifications for Reactor Coolant System Vacuum Fill and Inspections, Tests, Analyses, and Acceptance Criteria for Containment Floodup, 30462-30464 2018-13892 License Amendments; Applications: Browns Ferry Nuclear Plant, Units 1, 2, and 3, and Independent Spent Fuel Storage Installation; et al., 30465-30469 2018-13874 Monitoring Effectiveness of Maintenance at Nuclear Power Plants, 30469-30470 2018-13876 Postal Regulatory Postal Regulatory Commission NOTICES New Postal Products, 30470-30471 2018-13930 Postal Service Postal Service NOTICES International Product Changes: Global Expedited Package Services—Non-Published Rates, 30471 2018-13879 Securities Securities and Exchange Commission RULES Freedom of Information Act Regulations, 30322-30333 2018-13943 NOTICES Self-Regulatory Organizations; Proposed Rule Changes: BOX Options Exchange, LLC, 30471-30473 2018-13886 2018-13887 NYSE American, LLC, 30473-30474 2018-13885 Substance Substance Abuse and Mental Health Services Administration NOTICES Meetings: Multiple Committees, 30449-30450 2018-13878 Transportation Department Transportation Department See

Federal Aviation Administration

See

Federal Highway Administration

Treasury Treasury Department See

Fiscal Service

See

Foreign Assets Control Office

U.S. Sentencing United States Sentencing Commission NOTICES Proposed Priorities for Amendment Cycle, 30477-30478 2018-13937 Requests for Nominations: Practitioners Advisory Group, 30476-30477 2018-13936 Veteran Affairs Veterans Affairs Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion (Documents and Information Required for Specially Adapted Housing Assistive Technology Grant) and Scoring Criteria for SAH Assistive Technology Grants, 30478 2018-13904 Workers' Workers Compensation Programs Office NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Division of Longshore and Harbor Workers' Compensation, 30459-30460 2018-13882 Separate Parts In This Issue Part II Commerce Department, National Oceanic and Atmospheric Administration, 30480-30524 2018-13732 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.

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83 125 Thursday, June 28, 2018 Rules and Regulations NUCLEAR REGULATORY COMMISSION 10 CFR Parts 1, 2, 34, 37, 50, 71, 73, and 140 [NRC-2018-0086] RIN 3150-AK13 Miscellaneous Corrections AGENCY:

Nuclear Regulatory Commission.

ACTION:

Final rule.

SUMMARY:

The U.S. Nuclear Regulatory Commission (NRC) is amending its regulations to make miscellaneous administrative updates and corrections. The amendments update descriptions of agency organization and functions, correct cross-reference, typographical, and grammatical errors, and add a certification recipient and clarifying language. This document is necessary to inform the public of these non-substantive amendments to the NRC's regulations.

DATES:

This final rule is effective on July 30, 2018.

ADDRESSES:

Please refer to Docket ID NRC-2018-0086 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:

Federal Rulemaking website: Go to http://www.regulations.gov and search for Docket ID NRC-2018-0086. Address questions about NRC dockets to Carol Gallagher; telephone: 301-415-3463; email: [email protected] For questions, contact the individual listed in the FOR FURTHER INFORMATION CONTACT section of this document.

NRC's Agencywide Documents Access and Management System (ADAMS): You may obtain publicly-available documents online in the ADAMS Public Documents collection at http://www.nrc.gov/reading-rm/adams.html. To begin the search, select “ADAMS Public Documents” and then select “Begin Web-based ADAMS Search.” For problems with ADAMS, please contact the NRC's Public Document Room (PDR) reference staff at 1-800-397-4209, 301-415-4737, or by email to [email protected] There are no NRC documents referenced in this document.

NRC's PDR: You may examine and purchase copies of public documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852.

FOR FURTHER INFORMATION CONTACT:

Jill Shepherd-Vladimir, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-1230, email: [email protected]

SUPPLEMENTARY INFORMATION: I. Introduction

The NRC is amending its regulations in parts 1, 2, 34, 37, 50, 71, 73, and 140 of title 10 of the Code of Federal Regulations (10 CFR) to make miscellaneous updates and corrections. The amendments update branch, division, and office titles; update agency organization and functions; correct cross-reference, typographical, and grammatical errors; and add a certification recipient and clarifying language. This document is necessary to ensure orderly codification of the NRC's requirements and to inform the public of these non-substantive amendments to the NRC's regulations.

II. Summary of Changes 10 CFR Part 1

Update Organization and Functions. In § 1.34(d), this final rule removes the rulemaking function from the Office of Administration (ADM).

Update Organization and Functions. In § 1.42(a) and (b), this final rule adds the responsibility for leading, managing, and facilitating rulemaking for the agency to the Office of Nuclear Material Safety and Safeguards (NMSS).

10 CFR Part 2

Correct Reference. In § 2.101(a)(2), this final rule removes the incorrect reference to § 2.101(g) and replaces it with the correct reference to § 2.101(f) in the last sentence.

Update Branch and Office Designation. In § 2.802(b), this final rule updates the branch and office designation from the Office of Administration to the Office of Nuclear Material Safety and Safeguards.

10 CFR Part 34

Correct Reference. In § 34.101(c), this final rule removes the incorrect reference to § 30.6(a)(2) for locations of regional offices and replaces it with the correct reference to § 30.6(b)(2).

10 CFR Part 37

Include Certification Recipient. In § 37.23(b)(2), after the second sentence, this final rule adds the sentence “Provide oath or affirmation certifications to the ATTN: Document Control Desk; Director, Office of Nuclear Material Safety and Safeguards.”

Insert Clarifying Language. In § 37.43 paragraphs (d)(2) and (3), and paragraphs (d)(5) through (8), this final rule adds the phrase “the list of individuals that have been approved for unescorted access” from paragraph (d)(1) to provide the full list of information required to be protected.

Correct Reference. In § 37.45(b), this final rule removes the incorrect reference to § 30.6(a)(2) and replaces it with the correct reference to §  30.6(b)(2).

10 CFR Parts 37, 71, and 73

Update Division Title. In §§ 37.77(a)(1), 71.97(c)(3)(iii), and 73.37(b)(2) this final rule updates the Office of Nuclear Material Safety and Safeguards' division title from “Division of Material Safety, State, Tribal, and Rulemaking Programs” to “Division of Materials Safety, Security, State, and Tribal Programs.”

10 CFR Part 50

Correct Typographical Error. In § 50.75(e)(1)(v), this final rule removes the word “entity(ies)” and replaces it with the words “entity or entities.”

10 CFR Part 73

Correct Spelling. In § 73.70(g), this final rule corrects the spelling of “vertification” to “verification.”

10 CFR Part 140

Correct Grammatical Error. In § 140.2(b)(2), this final rule adds the indefinite article “a” before the last word in the paragraph.

Correct Reference. In § 140.3, this final rule presents the definitions in alphabetical order, and removes the paragraph designations.

Clarifying Language. In § 140.13a(a), this final rule adds the word “specified” before “in § 140.15” in the last sentence.

Correct Typographical Error. In § 140.22, this final rule corrects the title from “Committee” to “Commission” in the last sentence.

III. Rulemaking Procedure

Under the Administrative Procedure Act (5 U.S.C. 553(b)), an agency may waive publication in the Federal Register of a notice of proposed rulemaking and opportunity for comment requirements if it finds, for good cause, that it is impracticable, unnecessary, or contrary to the public interest. As authorized by 5 U.S.C. 553(b)(3)(B), the NRC finds good cause to waive notice and opportunity for comment on these amendments, because notice and opportunity for comment is unnecessary. The amendments will have no substantive impact and are of a minor and administrative nature dealing with corrections to certain CFR sections or are related only to agency management, organization, procedure, and practice. Specifically, the revisions update branch, division, and office titles; update descriptions of agency organization and functions; correct cross-reference, typographical, and grammatical errors; and add a certification recipient and clarifying language. The Commission is exercising its authority under 5 U.S.C. 553(b)(3)(B) to publish these amendments as a final rule. The amendments are effective July 30, 2018. These amendments do not require action by any person or entity regulated by the NRC, and do not change the substantive responsibilities of any person or entity regulated by the NRC.

IV. Environmental Impact: Categorical Exclusion

The NRC has determined that this final rule is the type of action described in 10 CFR 51.22(c)(2), which categorically excludes from environmental review rules that are corrective or of a minor, nonpolicy nature and do not substantially modify existing regulations. Therefore, neither an environmental impact statement nor an environmental assessment has been prepared for this rule.

V. Paperwork Reduction Act

This final rule does not contain a collection of information as defined in the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) and, therefore, is not subject to the requirements of the Paperwork Reduction Act of 1995.

Public Protection Notification

The NRC may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the document requesting or requiring the collection displays a currently valid OMB control number.

VI. Plain Writing

The Plain Writing Act of 2010 (Pub. L. 111-274) requires Federal agencies to write documents in a clear, concise, and well-organized manner. The NRC has written this document to be consistent with the Plain Writing Act as well as the Presidential Memorandum, “Plain Language in Government Writing,” published June 10, 1998 (63 FR 31883).

VII. Backfitting and Issue Finality

The NRC has determined that the corrections in this final rule do not constitute backfitting and are not inconsistent with any of the issue finality provisions in 10 CFR part 52. The amendments are non-substantive in nature; they update branch, division, and office titles; update descriptions of agency organization and functions; correct cross-reference, typographical, and grammatical errors; and add a certification recipient and clarifying language. They impose no new requirements and make no substantive changes to the regulations. The corrections do not involve any provisions that would impose backfits as defined in 10 CFR chapter I, or would be inconsistent with the issue finality provisions in 10 CFR part 52. For these reasons, the issuance of the rule in final form would not constitute backfitting or represent a violation of any of the issue finality provisions in 10 CFR part 52. Therefore, the NRC has not prepared any additional documentation for this administrative rulemaking addressing backfitting or issue finality.

VIII. Congressional Review Act

This final rule is not a rule as defined in the Congressional Review Act (5 U.S.C. 801-808).

List of Subjects 10 CFR Part 1

Flags, Organization and functions (government agencies), Seals and insignia.

10 CFR Part 2

Administrative practice and procedure, Antitrust, Byproduct material, Classified information, Confidential business information; Freedom of information, Environmental protection, Hazardous waste, Nuclear energy, Nuclear materials, Nuclear power plants and reactors, Penalties, Reporting and recordkeeping requirements, Sex discrimination, Source material, Special nuclear material, Waste treatment and disposal.

10 CFR Part 34

Criminal penalties, Incorporation by reference, Manpower training programs, Occupational safety and health, Packaging and containers, Penalties, Radiation protection, Radiography, Reporting and recordkeeping requirements, Scientific equipment, Security measures, X-rays.

10 CFR Part 37

Byproduct material, Criminal penalties, Exports, Hazardous materials transportation, Imports, Licensed material, Nuclear materials, Penalties, Radioactive materials, Reporting and recordkeeping requirements, Security measures.

10 CFR Part 50

Administrative practice and procedure, Antitrust, Classified information, Criminal penalties, Education, Fire prevention, Fire protection, Incorporation by reference, Intergovernmental relations, Nuclear power plants and reactors, Penalties, Radiation protection, Reactor siting criteria, Reporting and recordkeeping requirements, Whistleblowing.

10 CFR Part 71

Criminal penalties, Hazardous materials transportation, Incorporation by reference, Intergovernmental relations, Nuclear materials, Packaging and containers, Penalties, Radioactive materials, Reporting and recordkeeping requirements.

10 CFR Part 73

Criminal penalties, Exports, Hazardous materials transportation, Incorporation by reference, Imports, Nuclear energy, Nuclear materials, Nuclear power plants and reactors, Penalties, Reporting and recordkeeping requirements, Security measures.

10 CFR Part 140

Criminal penalties, Extraordinary nuclear occurrence, Insurance, Intergovernmental relations, Nuclear materials, Nuclear power plants and reactors, Penalties, Reporting and recordkeeping requirements.

For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; and 5 U.S.C. 552 and 553, the NRC is adopting the following amendments to 10 CFR parts 1, 2, 34, 37, 50, 71, 73, and 140:

PART 1—STATEMENT OF ORGANIZATION AND GENERAL INFORMATION 1. The authority citation for part 1 continues to read as follows: Authority:

Atomic Energy Act of 1954, secs. 23, 25, 29, 161, 191 (42 U.S.C. 2033, 2035, 2039, 2201, 2241); Energy Reorganization Act of 1974, secs. 201, 203, 204, 205, 209 (42 U.S.C. 5841, 5843, 5844, 5845, 5849); Administrative Procedure Act (5 U.S.C. 552, 553); Reorganization Plan No. 1 of 1980, 5 U.S.C. Appendix (Reorganization Plans).

2. In § 1.34, revise paragraph (d) to read as follows:
§ 1.34 Office of Administration.

(d) Manages the NRC Management Directives Program and provides translation services.

3. In § 1.42, revise paragraph (a), redesignate paragraphs (b)(26) through (31) as paragraphs (b)(27) through (32), and add new paragraph (b)(26) to read as follows:
§ 1.42 Office of Nuclear Material Safety and Safeguards.

(a) The Office of Nuclear Material Safety and Safeguards (NMSS) is responsible for regulating activities that provide for the safe and secure production of nuclear fuel used in commercial nuclear reactors; the safe storage, transportation, and disposal of low-level and high-level radioactive waste and spent nuclear fuel; the transportation of radioactive materials regulated under the Atomic Energy Act of 1954, as amended (the Act); and all other medical, industrial, academic, and commercial uses of radioactive isotopes. The NMSS ensures safety and security by implementing a regulatory program involving activities including licensing, inspection, assessment of environmental impacts for all nuclear material facilities and activities, assessment of licensee performance, events analysis, enforcement, and identification and resolution of generic issues. The NMSS leads, manages, and facilitates rulemaking activities for new, advanced, and operating power reactors, as well as non-power utilization facilities; nuclear materials, including production of nuclear fuel used in commercial nuclear reactors, as well as storage, transportation, and disposal of high-level radioactive waste and spent nuclear fuel, and the transportation of radioactive materials regulated by the NRC.

(b) * * *

(26) Leads, manages, and facilitates the following rulemaking activities:

(i) Develops and implements policies and procedures for the review and publication of NRC rulemakings, and ensures compliance with the Regulatory Flexibility Act and the Congressional Review Act;

(ii) Supports all technical, financial, legal, and administrative rules, including the development of regulatory analyses and the orderly codification of the NRC's regulations in chapter I of this title; and

(iii) Manages all aspects of the 10 CFR 2.802 Petition for Rulemaking process.

PART 2—AGENCY RULES OF PRACTICE AND PROCEDURE 4. The authority citation for part 2 continues to read as follows: Authority:

Atomic Energy Act of 1954, secs. 29, 53, 62, 63, 81, 102, 103, 104, 105, 161, 181, 182, 183, 184, 186, 189, 191, 234 (42 U.S.C. 2039, 2073, 2092, 2093, 2111, 2132, 2133, 2134, 2135, 2201, 2231, 2232, 2233, 2234, 2236, 2239, 2241, 2282); Energy Reorganization Act of 1974, secs. 201, 206 (42 U.S.C. 5841, 5846); Nuclear Waste Policy Act of 1982, secs. 114(f), 134, 135, 141 (42 U.S.C. 10134(f), 10154, 10155, 10161); Administrative Procedure Act (5 U.S.C. 552, 553, 554, 557, 558); National Environmental Policy Act of 1969 (42 U.S.C. 4332); 44 U.S.C. 3504 note.

Section 2.205(j) also issued under 28 U.S.C. 2461 note.

§ 2.101 [Amended]
5. In § 2.101(a)(2), in the last sentence remove the reference “paragraph (g)” and add in its place the reference “paragraph (f)”. 6. In § 2.802, revise paragraph (b) introductory text to read as follows:
§ 2.802 Petition for rulemaking—requirements for filing.

(b) Consultation with the NRC. A petitioner may consult with the NRC staff before and after filing a petition for rulemaking by contacting the Chief, Regulatory Analysis and Rulemaking Support Branch, Division of Rulemaking, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 1-800-368-5642.

PART 34—LICENSES FOR INDUSTRIAL RADIOGRAPHY AND RADIATION SAFETY REQUIREMENTS FOR INDUSTRIAL RADIOGRAPHIC OPERATIONS 7. The authority citation for part 34 continues to read as follows: Authority:

Atomic Energy Act of 1954, secs. 81, 161, 181, 182, 183, 223, 234, 274 (42 U.S.C. 2111, 2201, 2231, 2232, 2233, 2273, 2282, 2021); Energy Reorganization Act of 1974, secs. 201, 206 (42 U.S.C. 5841, 5846); 44 U.S.C. 3504 note.

§ 34.101 [Amended]
8. In § 34.101(c), remove the reference “§ 30.6(a)(2)” and add in its place the reference “§ 30.6(b)(2)”. PART 37—PHYSICAL PROTECTION OF CATEGORY 1 AND CATEGORY 2 QUANTITIES OF RADIOACTIVE MATERIAL 9. The authority citation for part 37 continues to read as follows: Authority:

Atomic Energy Act of 1954, secs. 11, 53, 81, 103, 104, 147, 148, 149, 161, 182, 183, 223, 234, 274 (42 U.S.C. 2014, 2073, 2111, 2133, 2134, 2167, 2168, 2169, 2201, 2232, 2233, 2273, 2282, 2021); Energy Reorganization Act of 1974, secs. 201, 202 (42 U.S.C. 5841, 5842); 44 U.S.C. 3504 note.

10. In § 37.23, revise paragraph (b)(2) to read as follows:
§ 37.23 Access authorization program requirements.

(b) * * *

(2) Each licensee shall name one or more individuals to be reviewing officials. After completing the background investigation on the reviewing official, the licensee shall provide under oath or affirmation, a certification that the reviewing official is deemed trustworthy and reliable by the licensee. Provide oath or affirmation certifications to the ATTN: Document Control Desk; Director, Office of Nuclear Material Safety and Safeguards. The fingerprints of the named reviewing official must be taken by a law enforcement agency, Federal or State agencies that provide fingerprinting services to the public, or commercial fingerprinting services authorized by a State to take fingerprints. The licensee shall recertify that the reviewing official is deemed trustworthy and reliable every 10 years in accordance with § 37.25(c).

11. In § 37.43, revise paragraphs (d)(2), (d)(3) introductory text, (d)(3)(i), (d)(5) through (7), and (d)(8)(ii) to read as follows:
§ 37.43 General security program requirements.

(d) * * *

(2) Efforts to limit access shall include the development, implementation, and maintenance of written policies and procedures for controlling access to, and for proper handling and protection against unauthorized disclosure of, the security plan, implementing procedures, and the list of individuals that have been approved for unescorted access.

(3) Before granting an individual access to the security plan, implementing procedures, or the list of individuals that have been approved for unescorted access, licensees shall:

(i) Evaluate an individual's need to know the security plan, implementing procedures, or the list of individuals that have been approved for unescorted access; and

(5) The licensee shall document the basis for concluding that an individual is trustworthy and reliable and should be granted access to the security plan, implementing procedures, or the list of individuals that have been approved for unescorted access.

(6) Licensees shall maintain a list of persons currently approved for access to the security plan, implementing procedures, or the list of individuals that have been approved for unescorted access. When a licensee determines that a person no longer needs access to the security plan, implementing procedures, or the list of individuals that have been approved for unescorted access, or no longer meets the access authorization requirements for access to the information, the licensee shall remove the person from the approved list as soon as possible, but no later than 7 working days, and take prompt measures to ensure that the individual is unable to obtain the security plan, implementing procedures, or the list of individuals that have been approved for unescorted access.

(7) When not in use, the licensee shall store its security plan, implementing procedures, and the list of individuals that have been approved for unescorted access in a manner to prevent unauthorized access. Information stored in nonremovable electronic form must be password protected.

(8) * * *

(ii) The list of individuals approved for access to the security plan, implementing procedures, or the list of individuals that have been approved for unescorted access.

§ 37.45 [Amended]
12. In § 37.45(b) introductory text, remove the reference “§ 30.6(a)(2)” and add in its place the reference “§ 30.6(b)(2)”.
§ 37.77 [Amended]
13. In § 37.77(a)(1), remove the title “Division of Material Safety, State, Tribal, and Rulemaking Programs” and add in its place the title “Division of Materials Safety, Security, State, and Tribal Programs”. PART 50—DOMESTIC LICENSING OF PRODUCTION AND UTILIZATION FACILITIES 14. The authority citation for part 50 continues to read as follows: Authority:

Atomic Energy Act of 1954, secs. 11, 101, 102, 103, 104, 105, 108, 122, 147, 149, 161, 181, 182, 183, 184, 185, 186, 187, 189, 223, 234 (42 U.S.C. 2014, 2131, 2132, 2133, 2134, 2135, 2138, 2152, 2167, 2169, 2201, 2231, 2232, 2233, 2234, 2235, 2236, 2237, 2239, 2273, 2282); Energy Reorganization Act of 1974, secs. 201, 202, 206, 211 (42 U.S.C. 5841, 5842, 5846, 5851); Nuclear Waste Policy Act of 1982, sec. 306 (42 U.S.C. 10226); National Environmental Policy Act of 1969 (42 U.S.C. 4332); 44 U.S.C. 3504 note; Sec. 109, Pub. L. 96-295, 94 Stat. 783.

§ 50.75 [Amended]
15. In § 50.75(e)(1)(v), in the last sentence, remove the word “entity(ies)” and add in its place the words “entity or entities”. PART 71—PACKAGING AND TRANSPORTATION OF RADIOACTIVE MATERIAL 16. The authority citation for part 71 continues to read as follows: Authority:

Atomic Energy Act of 1954, secs. 53, 57, 62, 63, 81, 161, 182, 183, 223, 234, 1701 (42 U.S.C. 2073, 2077, 2092, 2093, 2111, 2201, 2232, 2233, 2273, 2282, 2297f); Energy Reorganization Act of 1974, secs. 201, 202, 206, 211 (42 U.S.C. 5841, 5842, 5846, 5851); Nuclear Waste Policy Act of 1982, sec. 180 (42 U.S.C. 10175); 44 U.S.C. 3504 note.

§ 71.97 [Amended]
17. In § 71.97(c)(3)(iii), remove the title “Division of Material Safety, State, Tribal, and Rulemaking Programs” and add in its place the title “Division of Materials Safety, Security, State, and Tribal Programs”. PART 73—PHYSICAL PROTECTION OF PLANTS AND MATERIALS 18. The authority citation for part 73 continues to read as follows: Authority:

Atomic Energy Act of 1954, secs. 53, 147, 149, 161, 170D, 170E, 170H, 170I, 223, 229, 234, 1701 (42 U.S.C. 2073, 2167, 2169, 2201, 2210d, 2210e, 2210h, 2210i, 2273, 2278a, 2282, 2297f); Energy Reorganization Act of 1974, secs. 201, 202 (42 U.S.C. 5841, 5842); Nuclear Waste Policy Act of 1982, secs. 135, 141 (42 U.S.C. 10155, 10161); 44 U.S.C. 3504 note.

Section 73.37(b)(2) also issued under Sec. 301, Public Law 96-295, 94 Stat. 789 (42 U.S.C. 5841 note).

§ 73.37 [Amended]
19. In § 73.37(b)(2), remove the title “Division of Material Safety, State, Tribal, and Rulemaking Programs” and add in its place the title “Division of Materials Safety, Security, State, and Tribal Programs”.
§ 73.70 [Amended]
20. In § 73.70(g), in the first sentence, remove the word “vertification” and add in its place the word “verification”. PART 140—FINANCIAL PROTECTION REQUIREMENTS AND INDEMNITY AGREEMENTS 21. The authority citation for part 140 continues to read as follows: Authority:

Atomic Energy Act of 1954, secs. 161, 170, 223, 234 (42 U.S.C. 2201, 2210, 2273, 2282); Energy Reorganization Act of 1974, secs. 201, 202 (42 U.S.C. 5841, 5842); 44 U.S.C. 3504 note.

§ 140.2 [Amended]
22. In § 140.2(b)(2), in the last sentence, add the article “a” before the last word “license”. 23. Revise § 140.3 to read as follows:
§ 140.3 Definitions.

As used in this part:

Act means the Atomic Energy Act of 1954 (68 Stat. 919) including any amendments thereto.

Commission means the Nuclear Regulatory Commission or its duly authorized representatives.

Department means the Department of Energy established by the Department of Energy Organization Act (Pub. L. 95-91, 91 Stat. 565, 42 U.S.C. 7101 et seq.), to the extent that the Department, or its duly authorized representatives, exercises functions formerly vested in the U.S. Atomic Energy Commission, its Chairman, members, officers and components and transferred to the U.S. Energy Research and Development Administration and to the Administrator thereof pursuant to sections 104 (b), (c) and (d) of the Energy Reorganization Act of 1974 (Pub. L. 93-438, 88 Stat. 1233 at 1237, 42 U.S.C. 5814) and retransferred to the Secretary of Energy pursuant to section 301(a) of the Department of Energy Organization Act (Pub. L. 95-91, 91 Stat. 565 at 577-578, 42 U.S.C. 7151).

Federal agency means a Government agency such that any liability in tort based on the activities of such agency would be satisfied by funds appropriated by the Congress and paid out of the United States Treasury.

Financial protection means the ability to respond in damages for public liability and to meet the cost of investigating and defending claims and settling suits for such damages.

Government agency means any executive department, commission, independent establishment, corporation, wholly or partly owned by the United States of America which is an instrumentality of the United States, or any board, bureau, division, service, office, officer, authority, administration, or other establishment in the executive branch of the Government.

Nuclear reactor means any apparatus, other than an atomic weapon, designed or used to sustain nuclear fission in a self-supporting chain reaction.

Person means:

(1) Any individual, corporation, partnership, firm, association, trust, estate, public or private institution, group, Government agency other than the Commission or the Department, except that the Department shall be considered a person within the meaning of the regulations in this part to the extent that its facilities and activities are subject to the licensing and related regulatory authority of the Commission pursuant to section 202 of the Energy Reorganization Act of 1974 (88 Stat. 1244), any State or any political subdivision thereof, or any political entity within a State, any foreign government or nation or any political subdivision of any such government or nation, or other entity; and

(2) Any legal successor, representative, agent, or agency of the foregoing.

Plutonium processing and fuel fabrication plant means a plant in which the following operations or activities are conducted:

(1) Operations for manufacture of reactor fuel containing plutonium, where the license or licenses authorize the possession of either five or more kilograms of plutonium, excluding that contained in sealed sources and welded or otherwise sealed unirradiated or irradiated fuel rods, at the site of the plant or authorize the processing of one or more kilograms of plutonium, excluding that contained in sealed sources and welded or otherwise sealed unirradiated or irradiated fuel rods, at the plant, including any of the following processes:

(i) Preparation of fuel material;

(ii) Formation of fuel material into desired shapes;

(iii) Application of protective cladding;

(iv) Recovery of scrap material; and

(v) Storage associated with such operations; or

(2) Research and development activities involving any of the operations described in paragraph (1) of this definition, except for research and development activities where the operator is licensed to possess or use plutonium in amounts less than those specified in paragraph (1).

Source material means source material as defined in the regulations contained in part 40 of this chapter.

Special nuclear material means:

(1) Plutonium, uranium 233, uranium enriched in the isotope 233 or in the isotope 235, and any other material which the Commission, pursuant to the provisions of section 51 of the Act, determines to be special nuclear material, but does not include source material; or

(2) Any material artificially enriched by any of the foregoing, but does not include source material.

Testing reactor means a nuclear reactor which is of a type described in § 50.21(c) of this chapter and for which an application has been filed for a license authorizing operation at:

(1) A thermal power level in excess of 10 megawatts; or

(2) A thermal power level in excess of 1 megawatt, if the reactor is to contain:

(i) A circulating loop through the core in which the applicant proposes to conduct fuel experiments; or

(ii) A liquid fuel loading; or

(iii) An experimental facility in the core in excess of 16 square inches in cross-section.

Uranium enrichment facility means:

(1) Any facility used for separating the isotopes of uranium or enriching uranium in the isotope 235, except laboratory scale facilities designed or used for experimental or analytical purposes only; or

(2) Any equipment or device, or important component part especially designed for such equipment or device, capable of separating the isotopes of uranium or enriching uranium in the isotope 235.

§ 140.13a [Amended]
24. In § 140.13a(a), in the last sentence, add the word “specified” before “in § 140.15”.
§ 140.22 [Amended]
25. In § 140.22, remove the word “Committee” and add in its place the word “Commission”. Dated at Rockville, Maryland, this 22nd day of June 2018.

For the Nuclear Regulatory Commission.

Pamela J. Shepherd-Vladimir, Acting Chief, Regulatory Analysis and Rulemaking Support Branch, Office of Nuclear Material Safety and Safeguards.
[FR Doc. 2018-13877 Filed 6-27-18; 8:45 am] BILLING CODE 7590-01-P
NATIONAL CREDIT UNION ADMINISTRATION 12 CFR Part 701 RIN 3133-AE31 Chartering and Field of Membership AGENCY:

National Credit Union Administration (NCUA).

ACTION:

Final rule.

SUMMARY:

The NCUA Board (Board) is amending its chartering and field of membership rules with respect to applicants for a community charter approval, expansion or conversion. The Board will allow the option for an applicant to submit a narrative to establish the existence of a well-defined local community instead of limiting the applicant to a presumptive statistical community. Also, the Board will hold a public hearing for narrative applications where the proposed community exceeds a population of 2.5 million people. Further, for communities that are subdivided into metropolitan divisions, the Board will permit an applicant to designate a portion of the area as its community without regard to division boundaries.

DATES:

The final rule becomes effective September 1, 2018.

FOR FURTHER INFORMATION CONTACT:

For program issues: Martha Ninichuck, Director; JeanMarie Komyathy, Deputy Director; Robert Leonard, Assistant Director; or Rita Woods, Assistant Director, Office of Credit Union Resources and Expansion (CURE), at 1775 Duke Street, Alexandria, VA 22314 or telephone (703) 518-1140. For legal issues: Marvin Shaw, Staff Attorney, Office of General Counsel, at the above address or telephone (703) 518-6553.

SUPPLEMENTARY INFORMATION:

I. Background A. Overview

The NCUA's Chartering and Field of Membership Manual, incorporated as Appendix B to part 701 of the NCUA regulations (“Chartering Manual”), 1 implements the field of membership (“FOM”) requirements established by the Federal Credit Union Act (“Act”) for federal credit unions (“FCU”).2 An FOM consists of those persons and entities eligible for membership based on an FCU's type of charter.

1 Appendix B to 12 CFR part 701(“Appendix B”).

2 12 U.S.C. 1759.

In adopting the Credit Union Membership Access Act of 1998 (“CUMAA”), Congress reiterated its longstanding support for credit unions, noting their “specific mission of meeting the credit and savings needs of consumers, especially persons of modest means.” 3 As amended by CUMAA, the FCU Act provides a choice among three charter types: A single group sharing a single occupational or associational common bond; 4 a multiple common bond of groups that each have a distinct occupational or associational common bond among group members; 5 and a community common bond among “persons or organizations within a well-defined local community, neighborhood, or rural district.” 6

3 Pub. L. 105-219, § 2, 112 Sta. 913 (Aug 7, 1998).

4 12 U.S.C. 1759(b)(1).

5Id. § 1759(b)(2)(A).

6Id. § 1759(b)(3).

Congress has delegated to the Board broad authority in the FCU Act to define what constitutes a well-defined local community (“WDLC”), neighborhood, or rural district for purposes of “making any determination” regarding a community credit union,7 and to establish applicable criteria for any such determination.8 To qualify as a WDLC, neighborhood, or rural district, the Board requires the proposed area to have “specific geographic boundaries,” such as those of “a city, township, county (single or multiple portions of a county) or their political equivalent, school districts or a clearly identifiable neighborhood.” 9 The boundaries themselves may consist of political borders, streets, rivers, railroad tracks, or other static geographical features.10 The Board continues to emphasize that common interests or interaction among residents within those boundaries are essential features of a local community.

7Id. § 1759(g)(1)(A).

8Id. § 1759(g)(1)(B).

9 Appendix B, Ch. 2, section V.A.2.

10 Appendix B, Ch. 2, section V.A.5.

Until 2010, the Chartering Manual required FCUs seeking to establish an area as a WDLC to submit for NCUA approval a narrative, supported by documentation, that demonstrated indicia of common interests or interaction among residents of a proposed community (the “narrative model”) if the community extended beyond a single political jurisdiction.11 A WDLC is required to consist of contiguous areas, and the Chartering Manual previously included the term “contiguous” in its text.12 In 2010, the Board replaced the narrative model in favor of an objective model that provided credit unions a choice between two statistically based “presumptive communities” that each by definition qualifies as a WDLC (the “presumptive community model”).13 In doing so, the Board inadvertently removed the term “contiguous” from the Chartering Manual, but did not intend to remove the requirement that the relevant areas be contiguous.

11 75 FR 36257 (June 25, 2010).

12 68 FR 18334 (April 15, 2003) “The well-defined local community, neighborhood, or rural district may be met if: The area to be served is multiple contiguous political jurisdictions, i.e., a city, county, or their political equivalent, or any contiguous portion thereof and if the population of the requested well-defined area does not exceed 500,000 . . .”

13 As explained in the final rule that discontinued the use of the narrative model, the Board “does not believe it is beneficial to continue the practice of permitting a community charter applicant to provide a narrative statement with documentation to support the credit union's assertion that an area containing multiple political jurisdictions meets the standards for community interaction and/or common interests to qualify as a WDLC. As [the proposed rule] noted, the narrative approach is cumbersome, difficult for credit unions to fully understand, and time consuming. . . . While not every area will qualify as a WDLC under the statistical approach, NCUA stated it believes the consistency of this objective approach will enhance its chartering policy, assure the strength and viability of community charters, and greatly ease the burden for any community charter applicant.” 75 FR 36257, 36260 (June 25, 2010).

One kind of presumptive community is a “Single Political Jurisdiction . . . or any contiguous portion thereof” (“SPJ”), regardless of population.14 The second is a single Core Based Statistical Area (“CBSA” 15 ) as designated by the U.S. Census Bureau (“Census”) or a well-defined portion thereof, which under the 2010 final rule was subject to a 2.5 million population limit.16

14 Appendix B, Ch. 2, sectionV.A.2. A Chartering Manual defines “single political jurisdiction” as “a city, county, or their political equivalent, or any single portion thereof.”

15 A CBSA is composed of the country's Metropolitan Statistical Areas and Micropolitan Statistical Areas. “Metropolitan Statistical Areas are defined by OMB as having “at least one urbanized area of 50,000 or more population, plus adjacent territory that has a high degree of social and economic integration with the core as measured by commuting ties.” “Micropolitan Statistical Areas” are identical to Metropolitan Statistical Areas except that their urbanized areas are smaller, i.e., the urbanized area contains at least 10,000 but fewer than 50,000 people. A “Metropolitan Division” is a subdivision of a large Metropolitan Statistical Area. Specifically, a Metropolitan Division is “a county or group of counties within a Metropolitan Statistical Area that has a population core of at least 2.5 million. OMB Bulletin No. 15-01 (July 15, 2015)

16Id. “A total population cap of 2.5 million is appropriate in a multiple political jurisdiction context to demonstrate cohesion in the community.” 75 FR 36257, 36260 (June 25, 2010).

Currently, in the case of a CBSA that the Office of Management and Budget (“OMB”) has subdivided into metropolitan divisions, a community consisting of a portion of the CBSA is required to conform to the boundaries of such divisions. Under either “presumptive community” option, an FCU was required to demonstrate that it is able to serve its entire proposed community, as demonstrated by its business and marketing plans that must accompany an application to approve a new community charter, expansion or conversion.17

17 Appendix B, Ch. 2, § V.A.4.

B. 2016 Rulemakings

On October 27, 2016, the Board issued two rulemakings relating to the Chartering Manual. One was a final rule and the other a proposed rule. In the final rule,18 the Board comprehensively amended the Chartering Manual to organize it in a more efficient framework and to maximize member access to FCU services to the extent permitted by law. The final rule permitted an applicant to utilize, in limited circumstances, a narrative approach supported by objective documentation to demonstrate that an area adjacent to a presumptive community qualifies as part of that community.

18 81 FR 88412 (Dec. 7 2016).

In the proposed rule, the Board proposed three additional changes to the community charter provisions.19 Specifically, the Board proposed permitting an applicant for a community charter to submit a narrative to establish the existence of a WDLC, as an alternative to selecting a presumptive statistical community. The narrative would serve the same purpose as in years prior to 2010 when the narrative model was used exclusively. The Board also proposed increasing to 10 million the population limit on a community consisting of a statistical area or a portion thereof. In that regard, the Board requested comment on whether there should be any population limit at all for a statistical area and whether a public hearing would be appropriate for areas with large populations. Further, the Board proposed permitting an FCU to designate a portion of a statistical area as its community without regard to metropolitan division boundaries. The Board noted that consistent with its responsibility under CUMAA to facilitate access to FCU services, the proposal sought to provide FCUs greater flexibility in that regard.

19 81 FR 78748 (Nov. 9, 2016).

The Board received approximately 55 comments from federal and state-chartered credit unions, credit union associations, credit union leagues, banks, bank trade associations, and consultants. The majority of commenters were credit union affiliated entities, which uniformly supported the proposed rule. In contrast, the four bank-affiliated commenters uniformly opposed the proposal.

II. Federal District Court Decision

Several provisions of the 2016 final rule were challenged by the American Bankers Association. On March 29, 2018, the U.S. District Court for the District of Columbia upheld two provisions and vacated two provisions of the 2016 final rule addressing community charters.20 Specifically, the court upheld the provision allowing an FCU to serve areas within a CBSA that do not include the CBSA's core.21 The court also upheld the provision allowing an FCU to add an adjacent area to a presumptive community. The court vacated the provision permitting automatic characterization of any individual portion of a combined statistical area (“CSA”) as belonging to a local community as long as that portion contains no more than 2.5 million people.22 The court also vacated the provision to increase the population limit to 1 million people for rural districts.

20ABA v. NCUA, 2018 WL 1542049, Case No. 16-2394, Mar. 29, 1018 (“FOM Decision”).

21 A CBSA consists of an urban core, its county, and any surrounding counties that are, according to OMB, highly socially and economically integrated with the core. 81 FR at 88440.

22 Combined Statistical Areas are composed of adjacent CBSAs that share what OMB calls “substantial employment interchange. OMB characterizes CSAs as “representing larger regions that reflect broader social and economic interactions, such as wholesaling, commodity distribution, and weekend recreational activities, and are likely to be of considerable interest to regional authorities and the private sector.” OMB Bulletin No, 15-01.

III. 2018 Final Rule A. Overview

This final rule amends the community chartering provisions of the Chartering Manual. Any modification in this final rule is consistent with the District Court decision. The rule allows for the general use of the narrative model, so that an applicant can seek Board approval to form, expand, or convert to a community charter, provided that the applicant provides sufficient supporting documentation. The rule also provides that the NCUA will conduct a public hearing and solicit public comments on any community charter application that uses the narrative approach for an area whose population exceeds 2.5 million people. Further, the rule permits an FCU to designate a portion of a CBSA statistical area as its community without regard to metropolitan division boundaries.

With respect to the proposal to raise the population limit for a presumptive community, the Board has decided not to move forward with this amendment at this time.

B. General Applicability of Narrative Model To Establish a Well-Defined Local Community

In 2016, the Board proposed to allow the general use of the narrative model to form, expand, or convert to a community charter as an alternative to using the “presumptive community” model.23

23 81 FR at 78749.

In response to the proposal, nearly every credit union-affiliated commenter supported allowing the narrative model as an alternative to the presumptive community model. These commenters stated that such an alternative provides added flexibility, thus potentially allowing FCUs to provide more financial services to the public. In contrast, bank-affiliated commenters opposed this proposal, claiming that it was overly subjective. They stated that the Board's 2010 decision to replace this approach with an objective one enhanced the process because it provided greater consistency.

The Board has determined that it is appropriate to permit the narrative model as an alternative to the presumptive community model. The Board believes that a significant majority of FCUs will rely on the presumptive community model for practical reasons. The presumptive community model is less costly and requires fewer resources for an applicant to expend. Further, an applicant can rely on a streamlined process, thus ensuring a more timely determination by utilizing the presumptive community model. While most applicants will be well served by the presumptive community model, the Board believes that some FCUs will find that using the narrative model will provide a better opportunity for them to establish that the relevant area is a WDLC. As is noted above, prior to 2010, a WDLC expressly needed to be “contiguous” under the narrative model. Given that contiguity is still required in setting forth the parameters of a WDLC and for clarity, the Board specifically includes the contiguity requirement in the final rule's regulatory text.

Some commenters stated that certain potential communities do not necessarily align with CBSAs, SPJs, or other recognized statistical areas. The Board anticipates that this change to allow the narrative model as an alternative will be used sparingly, given the associated costs in preparing a narrative package. As noted in the section addressing the Paperwork Reduction Act (PRA), CURE estimates that there would be approximately 25 FCUs per year that would use the narrative approach based on data from the five years preceding 2010. The Board notes any such costs are not mandated by the NCUA but rather are voluntarily assumed by a potential applicant.

The Board has further determined that allowing such an alternative to the presumptive community model is appropriate because it expands the delivery of financial services to the public, particularly people from underserved communities, with no significant downside. The Board notes that the Act gives the Board broad discretion to define a WDLC for purposes of “making any determination” regarding a community credit union,24 and to establish criteria to apply to any such determination.25 (Emphasis added)

24 12 U.S.C. 1759(g)(1)(A) (emphasis added).

25Id. § 1759(g)(1)(B).

Under its statutory authority, the Board is adopting, with minor modifications from the proposal, a new appendix to the Chartering Manual, which sets thirteen “Narrative Criteria to Identify a Well-Defined Local Community” that an FCU should address in the narrative it submits to support its application to charter, expand, or convert to a community credit union. The Board has determined that establishing such criteria will facilitate an applicant's ability to provide justification to support the common interest or interaction standard. The Board notes that if an FCU has successfully established that an area is a WDLC through the narrative process, then another FCU may adopt that exact area as a WDLC without submitting a narrative of its own, provided it complies with the other requirements of the Chartering Manual including submitting a business plan that demonstrates its ability to serve the proposed FOM.

Commenters generally supported the thirteen criteria. Several commenters emphasized that the NCUA should evaluate the “totality of circumstances” in assessing applications. These commenters stated that the criteria provided solid evidence of common interests and interaction. One commenter stated that the NCUA should allow consideration of additional criteria that are unique to a community. Another commenter stated that the NCUA should allow consideration of “on line communities” given the trend toward such use. Bank commenters opposed the narrative approach, but said if it is adopted, then an applicant should be required to establish compliance with, most if not all, of the thirteen criteria.

The NCUA's experience with community charter applications under the pre-2010 narrative model indicates that these thirteen criteria were generally the most useful and compelling, when properly addressed and documented, to demonstrate common interests or interaction among residents of a proposed community. An area need not meet all of the narrative criteria to qualify as a local community; rather, the totality of circumstances within the criteria a credit union elects to address must indicate a sufficient presence of common interests or interaction among the area's residents. The new appendix explains each criterion in order to guide applicants in the prudent use of their resources, with minimal burden, to assess whether an area qualifies as a local community and, if so, to develop an effective and well-documented narrative to justify Board approval of its application.26 The Board reiterates that the proposed area does not have to match exactly the entirety of the thirteen criteria. Rather, the more a proposed area satisfies the criteria to establish a WDLC, the stronger the applicant's case. Consistent with this approach, Appendix B identifies for each of the thirteen criteria three levels of persuasiveness: “most persuasive,” “persuasive,” and “not persuasive” with examples of each.

26 Appendix 6 to Appendix B.

Accordingly, the Board will consider the following criteria, and the supporting documentation for each, in evaluating the presence of interaction and/or common interest among residents to establish that an area is a WDLC:

1. Presence of a Central Economic Hub

The proposed community includes an economic hub. An economic hub is evident when one political jurisdiction (city or county) within a proposed local community has a relatively large percentage of the community's population or is the primary location for employment. The application needs to identify the major employers and their locations within the proposed community.

2. Community-Wide Quasi-Governmental Agency Services

The existence of organizations such as economic development commissions, regional planning boards, and labor or transportation districts can be important factors to consider. The more closely their service area matches the area, the greater the showing of common interests or interaction.

3. Governmental Designations With Community

Designation of the proposed community by a government agency as a region or distinct district—such a regional transportation district, a water district, or a tourism district—is a factor that can be considered in determining whether the area is a local community. The more closely the designation matches the area's geographic boundaries, the greater the value of that evidence in demonstrating common interests or interaction.

4. Shared Public Services and Facilities

The existence of shared services and facilities, such as police, fire protection, park districts, public transportation, airports, or public utilities, can contribute to a finding that an area is a community. The more closely the service area matches the geographic boundaries of the community, and the higher the percentage of residents throughout the community using those services or facilities, the more valuable the data.

5. Hospitals and Major Medical Facility Services

Data on medical facilities should include admittance or discharge statistics providing the ratio of use by residents of each political jurisdiction. The greater the percentage of use by residents throughout the proposed community, the higher the value of this data in showing interaction. The application can also support the importance of an area hospital with documentation that correlates the facility's target area with the proposed local community and/or discusses the relative distribution of hospitals over a larger area.

6. College and University Enrollment

College enrollment data can be a useful factor in establishing a local community. The higher the percentages of student enrollment at a given campus by residents throughout each part of the community, the greater the value in showing interaction. Additionally, the greater the participation by the college in community initiatives (e.g., partnering with local governments), and the greater the service area of these initiatives, the stronger the value of this factor.

7. Multi-Jurisdictional Mutual Aid Agreements

The existence of written agreements among law enforcement and fire protection agencies in the area to provide services across multiple jurisdictions can be an important factor.

8. Organizations' and Clubs' Membership and Services

The more closely the service area of an organization or club matches the proposed community's boundaries, and the greater the percentage of membership and services throughout the proposed community, the more relevant the data.

9. Newspaper Subscriptions

A newspaper that has a substantial subscription base in an area can be an indication of common interests or interaction. The higher the household penetration figures throughout the area, the greater the value in showing common interests or interaction. Subscription data may include print copies as well as on-line access.

10. Attendance at Entertainment and Sporting Events

Data to show the percentage of residents from each political jurisdiction who attend the events. The higher the percentage of residents from throughout the proposed community, the stronger the evidence of interaction. For sporting events, as well as some entertainment events, data on season ticket holders and memberships may be available. As with overall attendance figures, the higher the percentage of residents from throughout the proposed community, the stronger the evidence of interaction.

11. Local Television and Radio Audiences

A television or radio station broadcasting in an area can be an indication of common interests or interaction. Objective data on viewer and listener audiences in the proposed community can support the existence of a community.

12. Community-Wide Shopping Patterns

The narrative must identify the location of the major shopping centers and malls and include the percentage of shoppers coming from each part of the community. The larger the percentage of shoppers from throughout the community, the stronger the case for interaction. While of lesser value than the shopping data, identification of the shopping center's target area can be persuasive.

13. Geographic Isolation

Some communities face varying degrees of geographic isolation. As such, travel outside the community can be limited by mountain ranges, forests, national parks, deserts, bodies of waters, etc. This factor, and the relative degree of isolation, may help bolster a finding of common interests or interaction.

C. Public Hearing

In the November 2016 proposal, the Board requested comment about whether it should establish a process to give the public notice and an opportunity to comment on an FCU's application for approval of a statistical area with a population in excess of 2.5 million.

One bank-affiliated commenter supported having a public hearing along with the opportunity for comment for applications for community charters for statistical areas exceeding 2.5 million. No credit-union affiliated commenter addressed this issue.

The Board has determined that it is appropriate to require a public hearing along with opportunity for comment for charter applications using a narrative model over a certain population. The Board believes that such a procedure will allow applicants to present information, including their business and marketing plan, in a transparent manner. Other interested parties, including community groups, businesses, and competitors will have the opportunity to present their views. After further consideration of this issue and the comments, the Board has decided to modify the use of public hearings from what was discussed in the proposal. Specifically, the Board intends for the NCUA to conduct public hearings and solicit public comments on any narrative community application comprising an area whose population is in excess of 2.5 million people. Any public comments should be submitted to the Board at least twenty business days prior to the public hearing.

The Board intends to delegate to CURE the responsibility to conduct the public hearings on any narrative community applications in excess of 2.5 million people with assistance from the NCUA's Office of General Counsel (OGC). Upon receiving such an application, CURE will publish in the Federal Register information stating the location, time, procedures and other relevant information about the hearing at least 30 days prior to the hearing date. CURE will determine whether the hearing will be held at the NCUA's Headquarters in Alexandria, VA or a location near the applicant's anticipated community. The public hearing will last no more than four hours with interested parties being permitted to make presentations of no more than 30 minutes each. The applicant along with no more than seven other interested parties may request to make presentations. The first six entities that contact the NCUA in writing will be permitted to make such presentations. CURE will reserve one additional slot which it has the discretion to designate as eligible for a presentation by an interested party. In addition to the presentations, interested parties may submit written statements to CURE at least twenty business days prior to the hearing.

CURE will take under advisement the presentations and written statements and will make a determination as to whether to approve, deny, or make modifications to the application. CURE will make this determination based on whether the applicant demonstrated common interests or interactions among residents of the area under consideration, thus qualifying the area as a WDLC. CURE will make this determination no sooner than 30 days after the date of the public hearing.

D. Portion of CBSA as a Well-Defined Local Community Regardless of Internal Boundaries

In 2016, the Board proposed to permit an FCU to designate a portion of a CBSA as its community without regard to metropolitan division boundaries. The Board noted that when an FCU seeks to serve a portion of a single CBSA as its WDLC, the existing rule requires such a portion to conform to any boundary of a metropolitan divisions. In contrast, a CSA was not required to conform to any metropolitan division boundary, even though CSAs cover a wider geographic area. For purposes of consistency, the Board proposed permitting an FCU to designate a portion of a CBSA as its community without regard to division boundaries.

No commenter objected to this proposal, and approximately ten credit union-affiliated commenters specifically supported it. The commenters stated that the change would correct a disparity in treatment between a community consisting of a portion of a CBSA and a CSA. The commenters who supported it viewed it as affording regulatory relief via a common sense change to enhance consistency and provide flexibility.

The Board has determined that it is appropriate to amend the Chartering Manual to designate a portion of a CBSA as its community without regard to the boundaries of any metropolitan divisions within a CBSA.27 This modification corrects an inconsistency that was never intended. In light of the District Court decision, the Board has removed reference to Metropolitan Divisions with respect to CSAs.

27 The Board is modifying Appendix B to delete reference to Metropolitan Divisions in CSAs as a result of the District Court decision.

E. Eliminating the Population Limit for a Statistical Area

As noted above, the Board issued a final rule in 2010 recognizing as a presumptive community a CBSA as designated by the U.S. Census, or a CSA as designated by OMB, subject in either case to a population limit of 2.5 million and proof of the FCU's ability and commitment to serve the entire community.28 At the time, the Board recognized a 2.5 million population “as a logical breaking point in terms of community cohesiveness with respect to a multijurisdictional area.” 29

28 75 FR 36257, 36260.

29 75 FR 36257, 36259.

In the 2015 proposal, the Board decided to retain the existing 2.5 million population cap as the upper limit for a presumptive community, although it solicited public comment on whether to adjust the amount, and for what reasons.30 Specifically, the Board stated that a CBSA qualifies as a WDLC only if its population does not exceed 2.5 million, and that “[b]y design, this population limit conforms to the population parameter by which [the Office of Management and Budget (“OMB”)] recognizes metropolitan divisions within a Core Based Statistical Area.” 31

30 80 FR at 76749.

31 80 FR at 76748-49.

In their comments to the 2015 proposal, bankers opposed raising the existing population limit. For instance, a bank trade association stated that “NCUA's overly broad interpretation of what is `rural' or `local' is at odds with any reasonable interpretation of those terms and makes a mockery of the field of membership restrictions”

The 2016 final rule retained the 2.5 million population limit that applies to a community consisting of a CBSA or CSA. However, in the November 2016 proposed rule, the Board requested comment on its proposal to increase the limit to “up to 10 million” or to eliminate it completely. Despite affirming the then current 2.5 million population limit in that final rule, the Board stated that it anticipates that many areas that would qualify as a WDLC will experience population growth over time and that it should anticipate and accommodate inevitable growth, to the extent permissible under the Act, in order to maximize the potential membership base available to community credit unions.32

32 80 FR at 78751.

Comments were mixed about the proposal on the population cap for statistical areas that comprise more than a single political jurisdiction. Virtually all credit union-affiliated commenters urged the Board to eliminate the population cap on statistical areas altogether. Alternatively, they preferred the 10 million cap to the 2.5 million cap, if the Board decided to retain a population cap. In contrast, bank-affiliated commenters continued to oppose increasing the existing 2.5 million population cap on CBSAs and CSAs. The bankers argued that the proposal oversteps congressional bounds established by the Act, particularly with respect to the definition of “local.” Specifically, they stated that this interpretation of “local” would “allow nearly any federal community credit union to serve almost any geographic area or population center.” The bankers further stated that a 10 million population cap would allow an FCU to serve a statistical area with a population that exceeds the population of 41 states and would add 20 additional CSAs to qualify as presumptive communities. Thus, they stated that all but two CSAs would be presumptive communities. In addition, these commenters claimed that the NCUA provided “no analysis to support this arbitrary, massive increase.”

The Board has determined that increasing the population cap for presumptive communities is not appropriate at this time. The Board is evaluating population caps for presumptive communities in light of the above-referenced District Court decision.

III. Regulatory Procedures Regulatory Flexibility Act

The Regulatory Flexibility Act requires the NCUA to prepare an analysis to describe any significant economic impact a regulation may have on a substantial number of small entities.33 For purposes of this analysis, the NCUA considers small credit unions to be those having under $100 million in assets.34 Although this rule is anticipated to economically benefit FCUs that choose to charter, expand or convert to a community charter, the NCUA certifies that it will not have a significant economic impact on a substantial number of small credit unions.

33 5 U.S.C. 603(a).

34 80 FR 57512 (Sept. 24, 2015).

Paperwork Reduction Act

The Paperwork Reduction Act of 1995 (PRA) applies to collections of information through which an agency creates a paperwork burden on regulated entities or the public, or modifies an existing burden.35 For purposes of the PRA, a paperwork burden may take the form of either a reporting or a recordkeeping requirement, both referred to as information collections. OMB previously approved the current information collection requirements for the Chartering Manual and assigned them control number 3133-0015.

35 44 U.S.C. 3507(d); 5 CFR part 1320.

Regarding a community charter, the rule gives community charter applicants the option, in lieu of a presumptive community, to submit a narrative to establish common interests or interaction among residents of the area it proposes to serve, thus qualifying the area as a WDLC. For that purpose, the rule includes guidance in identifying compelling indicia of common interests or interaction that would be relevant in drafting a narrative summarizing how the community meets the requirements of a WDLC. In addition, when a CBSA is subdivided into Metropolitan Divisions, the rule permits a credit union to designate a portion of the area as its community without regard to division boundaries.

The NCUA has determined that the procedure for an FCU to assemble and document a narrative summarizing the evidence to support its community charter application would create a new information collection requirement. As required, the NCUA applied to OMB for approval to amend the current information collection to account for the new procedure.

Prior to 2010, when the NCUA moved to an objective model of presumptive communities, FCUs had the following three choices for a community charter: Previously approved areas; single political jurisdictions; and multiple political jurisdictions. For applications involving multiple statistical areas, the NCUA required FCUs to submit for the NCUA approval a narrative, supported by documentation that presents indicia of common interests or interaction among residents of the proposed community.

In the five-year period preceding the move to an objective model of presumptive communities, the NCUA processed an average of twenty FOM applications involving multiple statistical areas. From 2010 to 2018, the NCUA processed 2 applicants for multiple statistical areas that exceeded 2.5 million people. Based on this historical trend, the NCUA estimates that, on average, it would take an FCU's staff approximately 160 hours to collect the evidence of common interests or interaction and to develop a narrative to support its application to expand or to convert. Accordingly, the NCUA estimates the aggregate information collection burden on existing and would-be FCUs that elect to use the narrative option to form, expand, or convert to a community charter would be 160 hours times 10 FCUs for a total of 1600 hours. The NCUA is amending the current information collection control number 3133-0015 to account for these additional burden hours.

In the proposal, the Board directed organizations and individuals who wished to submit comments on this information collection requirement to direct them to the Office of Information and Regulatory Affairs, OMB, Attn: Shagufta Ahmed, Room 10226, New Executive Office Building, Washington, DC 20503, with a copy to the Secretary of the Board, National Credit Union Administration, 1775 Duke Street, Alexandria, Virginia 22314-3428.

The NCUA considered comments by the public on the proposed collection of information in:

• Evaluating whether the collection of information is necessary for the proper performance of the functions of the NCUA, including whether the information will have a practical use;

• Evaluating the accuracy of the NCUA's estimate of the burden of the collection of information, including the validity of the methodology and assumptions used;

• Enhancing the quality, usefulness, and clarity of the information to be collected; and

• Minimizing the burden of collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology (e.g., permitting electronic submission of responses).

Executive Order 13132

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

Assessment of Federal Regulations and Policies on Families

The NCUA has determined that this rule will not affect family well-being within the meaning of Section 654 of the Treasury and General Government Appropriations Act, 1999.36

36 Public Law 105-277, 112 Stat. 2681 (1998).

List of Subjects in 12 CFR Part 701

Credit, Credit unions, Reporting and recordkeeping requirements.

By the National Credit Union Administration Board on June 21, 2018. Gerard Poliquin, Secretary of the Board.

For the reasons stated above, the NCUA amends 12 CFR part 701, Appendix B, as follows:

PART 701—ORGANIZATION AND OPERATION OF FEDERAL CREDIT UNIONS 1. The authority for part 701 continues to read as follows: Authority:

12 U.S.C. 1752(5), 1755, 1756, 1757, 1758, 1759, 1761a, 1761b, 1766, 1767, 1782, 1784, 1786, 1787, 1789. Section 701.6 is also authorized by 15 U.S.C. 3717. Section 701.31 is also authorized by 15 U.S.C. 1601 et seq.; 42 U.S.C. 1981 and 3601-3610. Section 701.35 is also authorized by 42 U.S.C. 4311-4312.

2. In appendix B to part 701, section V.A.2 of chapter 2 is revised and appendix 6 is added to read as follows: Appendix B to Part 701—Chartering and Field of Membership Manual Chapter 2—Field of Membership Requirements for Federal Credit Unions V—Community Charter Requirements V.A.2—Definition of Well-Defined Local Community and Rural District

In addition to the documentation requirements in Chapter 1 to charter a credit union, a community credit union applicant must provide additional documentation addressing the proposed area to be served and community service policies.

An applicant has the burden of demonstrating to NCUA that the proposed community area meets the statutory requirements of being: (1) Well-defined, and (2) a local community or rural district.

For an applicant seeking a community charter for an area with multiple political jurisdictions with a population of 2.5 million people or more, the Office of Credit Union Resources and Expansion (CURE) shall publish a notice in the Federal Register seeking comment from interested parties about the proposed community and (2) conduct a public hearing about this application.

“Well-defined” means the proposed area has specific geographic boundaries. Geographic boundaries may include a city, township, county (single, multiple, or portions of a county) or a political equivalent, school districts, or a clearly identifiable neighborhood.

The well-defined local community requirement is met if:

• Single Political Jurisdiction—The area to be served is a recognized Single Political Jurisdiction, i.e., a city, county, or their political equivalent, or any single portion thereof.

• Statistical Area—A statistical area is all or an individual portion of a Core-Based Statistical Area (CBSA) designated by the U.S. Census Bureau, including a Metropolitan Statistical Area. To meet the well-defined local community requirement, the CBSA or a portion thereof, must be contiguous and have a population of 2.5 million or less people. An individual portion of a statistical area need not conform to internal boundaries within the area, such as metropolitan division boundaries within a Core-Based Statistical Area.

• Compelling Evidence of Common Interests or Interaction—In lieu of a statistical area as defined above, this option is available when a credit union seeks to initially charter a community credit union; to expand an existing community; or to convert to a community charter. Under this option, the credit union must demonstrate that the areas in question are contiguous and further demonstrate a sufficient level of common interests or interaction among area residents to qualify the area as a local community. For that purpose, an applicant must submit for NCUA approval a narrative, supported by appropriate documentation, establishing that the area's residents meet the requirements of a local community.

To assist a credit union in developing its narrative, Appendix 6 of this Manual identifies criteria a narrative should address, and which NCUA will consider in deciding a credit union's application to: Initially charter a community credit union; to expand an existing community, including by an adjacent area addition; or to convert to a community charter. In any case, the credit union must demonstrate, through its business and marketing plans, its ability and commitment to serve the entire community for which it seeks NCUA approval.

BILLING CODE 7535-01-P ER28JN18.001 ER28JN18.002 ER28JN18.003 ER28JN18.004 ER28JN18.005 ER28JN18.006
[FR Doc. 2018-13869 Filed 6-27-18; 8:45 am] BILLING CODE 7535-01-C
NATIONAL CREDIT UNION ADMINISTRATION 12 CFR Parts 701 and 708b RIN 3133-AE73 Bylaws; Voluntary Mergers of Federally Insured Credit Unions AGENCY:

National Credit Union Administration (NCUA).

ACTION:

Final rule.

SUMMARY:

The NCUA Board (Board) is revising the procedures a federally insured credit union (FICU) must follow to merge voluntarily with another FICU. The changes: Revise and clarify the contents and format of the member notice; require merging credit unions to disclose certain merger-related financial arrangements for covered persons; increase the minimum member notice period; and provide a method for members and others to submit comments to the NCUA regarding the proposed merger. In addition, the NCUA has replaced its Merger Manual with revised model forms that conform to the requirements of this rule. The regulations now includes these forms.

DATES:

This rule is effective October 1, 2018.

FOR FURTHER INFORMATION CONTACT:

Elizabeth Wirick, Senior Staff Attorney, Office of General Counsel, 1775 Duke Street, Alexandria, VA 22314-3428 or telephone (703) 518-6540.

SUPPLEMENTARY INFORMATION:

I. Background

In June 2017, the Board issued proposed revisions to the NCUA's voluntary merger rule.1 The proposed rule was designed to address shortcomings in the current rule which did not always provide credit union members sufficient time to consider the merger or adequately communicate all information relevant to the merger decision.

1 82 FR 26605 (June 8, 2017).

The proposed revisions addressed the timing and contents of the notice provided to members of a merging federal credit union (FCU), provided FCU members with an opportunity to make their views known to the general membership, clarified the material that must be submitted to the NCUA for review, and revised definitions. In addition, the proposed rule reorganized the current rule to improve readability and clarity. These revisions were designed to ensure that a merging FCU's member-owners have more complete and accurate information regarding a proposed merger, including disclosure of financial arrangements that could create potential conflicts of interest. The proposal also sought comments on whether the final rule should apply to all merging FICUs rather than only to merging FCUs.

The Board is now finalizing the proposed rule, with some changes. The changes significantly narrow the definition of a “merger-related financial arrangement” that is subject to disclosure, adopt a less burdensome method for members to communicate their views on the merger, and apply the entire rule to all FICUs.

The Board received 84 comments on the proposed rule. Seventy of the commenters opposed the rule. Of the remaining 14 commenters, eight supported the proposed rule, four supported the proposed rule except for the member-to-member communication provision, one addressed only the question of whether the rule should apply to federally insured, state-chartered credit unions (FISCUs), and one requested an extension of the comment period.

In addition to the comments on the proposed rule, the Board has also been informed by a more thorough review of voluntary merger proposals since early 2017 (merger review). NCUA staff reviewed the member disclosure documents and ballot for every merger application submitted by an FCU, with an eye toward identifying ongoing issues. The direction of the final rule reflects the experience and knowledge the NCUA has gained from the merger review process.

II. General Comments on Proposed Rule

The section-by-section summary of the final rule, below, discusses comments on specific provisions of the rule. This section explains the Board's views on general comments relating to: (1) The nature of the NCUA's authority; (2) credit union member-ownership; and (3) the state of the merger landscape for credit unions generally.

The NCUA's authority to regulate mergers: Several commenters questioned the NCUA's authority to regulate credit union mergers, or suggested that the NCUA's role is limited to safety and soundness concerns. These comments are inaccurate. The FCU Act explicitly requires the Board's “prior written approval” before a FICU merges with another FICU.2 Moreover, as detailed in the preamble to the proposed rule, the FCU Act requires the Board to consider six factors in determining whether to approve FICU mergers and other types of transactions.3 While several of the factors are safety and soundness-related, the factors also include “the convenience and needs of the members” and “whether the credit union is a cooperative association organized for the purpose of promoting thrift among its members and creating a source of credit for provident or productive purposes.” 4 Clearly, the FCU Act expects the Board to consider the effect of the proposed merger on credit union members and gives the Board authority to deny mergers that do not, in its judgment, serve members well.

2 12 U.S.C. 1785(b)(3).

3 82 FR 26605 (June 8, 2017) (citing 12 U.S.C. 1785(c)).

4 12 U.S.C. 1785(c).

Need for a rule change: Many commenters considered the proposed rule unnecessary. Twenty-two commenters opined that the NCUA has sufficient authority to address any issues related to particular mergers under the current rule. Twenty-two commenters also asserted that evidence of a widespread problem with mergers was lacking. While the Board agrees that the FCU Act and current regulation provide it authority to impose requirements on specific merger transactions on a case-by-case basis,5 it questions whether this is the best approach in the long term. Further, the merger review confirmed prior anecdotal reports that the current regulation and model forms do not encourage clear member disclosures in many situations, particularly in the area of insider benefits. The use of terminology that may not be clear to all credit union members, combined with the lack of instructions around how to disclose merger-related financial arrangements, often resulted in disclosures that obscured critical information. The Board has determined that adopting a uniform, explicit standard for disclosures, with updated regulatory language and a conforming sample form, is a more cost-effective and efficient use of agency resources than the case-by-case approach it utilized during the merger review.

5Id. 1785(b)(3); 12 CFR 708b.105(b).

Nature of Credit Union Membership: Several commenters stated that while shareholders of public companies can sell their shares of stock at any time, credit union members have no right to the net worth of a credit union except in liquidation. This assertion ignores the reality that hundreds of credit unions annually return excess net worth to members via bonus dividends or interest rebates. Further, the fact that ownership of a portion of a credit union's net worth is less negotiable than a share of stock in a public company is irrelevant at the time of a proposed merger transaction. A credit union in good condition has the option of voluntary liquidation instead of voluntary merger. In recommending a proposed merger transaction, the board of directors of a merging credit union has made the determination to transfer its net worth to the continuing credit union instead of voluntarily liquidating and disbursing the credit union's net worth to its members.

Factors contributing to mergers: A number of commenters offered thoughtful analyses about how conditions, in the credit union industry and at the NCUA, tend to favor mergers and disfavor a robust appraisal of whether the merger meets the convenience and needs of the credit union's members. Several commenters who supported the rule argued that mergers have become the NCUA's method to resolve issues such as CEO succession and worrisome financial trends. Also, two commenters opposed to the rule stated the NCUA should acknowledge that many mergers occur because the merging credit union has determined it cannot keep up with increasing and changing regulation. The Board agrees that mergers should not be the first resort when an otherwise healthy credit union faces succession issues or lack of growth. The changes implemented in the final rule, particularly to the member notice, will provide members the information they need to determine whether the merger meets their needs.

Role of Boards of Directors and the NCUA: Several commenters who supported the rule also asserted that the boards of directors of merging credit unions were failing to conduct sufficient due diligence and that the NCUA was not enforcing its rule on fiduciary duties for directors of FCUs. The merger review documented many instances where boards of merging credit unions discussed the possibility of a merger with multiple credit unions and approached the merger transaction with the best interests of their members as the highest priority. For example, one merging credit union wrote to nine different CUs, soliciting a merger partner, and conducted interviews with representatives of the credit unions that submitted the three best responses. The Board acknowledges, however, that not all boards of directors are as conscientious about fulfilling their fiduciary duties. The Board believes that this final rule, which will provide members with a more complete and understandable picture of the merger transaction, addresses these concerns. The revised member notice clearly communicates information about the merging credit union's net worth relative to the continuing credit union's net worth and whether insiders will be receiving significant payouts from that net worth. The revised member notice will also clearly convey how the proposed merger will affect access to locations and services. These changes give members greater ability to assess whether the proposed merger is in their best interests. The Board also confirms that, for merging FCUs, the NCUA's Regional Offices must ensure that boards and management have fulfilled their fiduciary duties under 12 CFR 701.4.

III. Comments on Specific Provisions of Proposed Rule and Summary of Final Rule A. Applicability to FISCUs

In the proposed rule, the Board noted that its concerns may not be limited to mergers where the merging credit union is an FCU. The plain language of section 205 of the FCU Act provides the NCUA with authority to approve mergers for all FICUs, not only FCUs.6 Accordingly, the Board requested specific comments on whether it should use the authority in the FCU Act to also apply the rule to merging FISCUs.7

6 12 U.S.C. 1785(b)(3).

7 82 FR 26605, 26613 (June 8, 2017).

Thirty-one of the thirty-five commenters addressing this issue thought the voluntary merger rule should not apply to merging FISCUs. These commenters argued that extending the merger rule's applicability to FISCUs was unwarranted because merger procedures are already regulated under state law and issues related to voluntary mergers do not present a safety and soundness threat.

The Board disagrees with the majority of commenters. Instead, as expressed by a minority of commenters, the Board finds that merger transactions may present safety and soundness risks which endanger the continuing credit union regardless of whether the merging credit union is an FCU or a FISCU. For example, members of a merging credit union who discover, after the fact, that they were inadequately informed about the details of the merger may become disgruntled. The dissatisfied members could create bad publicity, creating a reputation risk for the continuing credit union. Unhappy members could also choose to stop doing business with the continuing credit union, affecting earnings projections. In contrast to commenters' assertions, the statutory factors the Board must consider in granting or withholding approval of a merger transaction include several factors related to safety and soundness, such as the financial condition of the credit union,8 the adequacy of the credit union's reserves,9 the economic advisability of the transaction,10 and the general character and fitness of the credit union's management.11

8 12 U.S.C. 1785(c)(1).

9Id. (c)(2).

10Id. (c)(3).

11Id. (c)(4).

Further, several commenters also affirmed the Board's observation in the preamble to the proposed rule that the same incentives for potential conflicts of interest exist in both FISCUs and FCUs. The amended disclosure requirements of the final rule address this potential by providing credit union members with information about how the merger transaction will affect their interests. The disclosures are in keeping with the statutory factors that require the Board to consider “the convenience and needs of the members to be served by the credit union” 12 as well as whether the credit union conforms to its purpose “of promoting thrift among its members and creating a source of credit for provident or productive purposes.” 13 The Act does not limit these concerns to FCUs and FCU members.

12Id. (c)(5).

13Id. (c)(6).

Finally, the other regulations the Board has adopted under the authority of Section 205 apply to all FICUs rather than only FCUs. These regulations address:

FICU conversions to banks; 14

14 12 CFR part 708a, subpart A.

FICU mergers with banks; 15 and

15 12 CFR part 708a, subpart C.

FICU mergers with credit unions not insured by the National Credit Union Share Insurance Fund (NCUSIF).16

16 12 CFR part 708b, subpart B.

Applying all portions of the merger rule to all FICUs conforms to the approach the Board has taken in these other regulations promulgated under the same authority in the FCU Act.

For the reasons above, the Board has determined to apply the final rule to all FICUs. To allow time for FISCUs to comply with the final rule, the Board has delayed the effective date until October 1, 2018. The final rule will apply only to new merger applications submitted after the rule's effective date.

B. Section 708b.2 Definitions Covered Person

The proposed rule requires merging FCUs to disclose to members any “merger-related financial arrangement” provided to a “covered person.” As discussed in the preamble to the proposed rule,17 the definition of “senior management official” in current § 708b.2 frequently resulted in FCU members having incomplete information about the benefits provided to FCU insiders as part of a merger transaction. The proposed rule amended § 708b.2 by removing the definition of “senior management official” and adding a definition for “covered person.” The term “covered person” means the credit union's chief executive officer or manager; the four most highly compensated employees other than the chief executive officer or manager; and any member of the board of directors or supervisory committee.

17 82 FR 26605, 26606 (June 8, 2017).

Thirty-six commenters who addressed the definition of covered person opposed it, and suggested a variety of alternatives. Six commenters did not object to the definition, and one of these commenters suggested expanding it to include family members of covered persons. In addition, two commenters agreed the definition of “senior management official” in the current rule was under-inclusive without offering an explicit opinion about the proposed changes.

The most common objection, stated by twenty-six commenters, was that the proposed definition of “covered person” would encompass all employees at smaller credit unions, when many of these employees are not in a position to influence merger discussions. This is an inaccurate characterization of many small credit unions. In the course of the merger review, the NCUA observed that all of the employees in many smaller credit unions exercised leadership or management roles and were in a position to influence merger negotiations. For example, in one credit union, an employee with the title of “teller” was involved in locating a merger partner and negotiating the terms of her severance payment.

Many of the objections to the definition of “covered person” were related to concerns with the proposed rule's expanded definition of “merger-related financial arrangement.” The final rule has a narrower definition of merger-related financial arrangement than the proposed rule or even the current rule, as detailed below. As a result, fewer covered persons will have arrangements that are subject to disclosure. Further, the merger review revealed very few instances where family members of covered persons received merger-related financial arrangements, so the Board does not see the need to expand the definition of covered person to include family members. Accordingly, the Board is adopting the definition of covered person as proposed.

Merger-Related Financial Arrangements

The NCUA's merger rule has required merging credit unions to disclose “merger-related financial arrangements” to members since 2007. “Merger-related financial arrangements” include any increases in compensation or benefits that exceed the greater of 15% or $10,000.18 The proposed rule expanded the definition of “merger-related financial arrangement” to cover increases in compensation or benefits received by a covered person, of any amount. Compensation includes bonuses, early payout of retirement benefits, increased insurance benefits, and any other financial rewards or benefits. The proposed rule also considered any increases in the 24 months before ratification of the merger proposal, as well as any related increases occurring after the merger, as merger-related.

18 12 CFR 708b.2.

Thirty-seven commenters objected to the proposed expansion of the definition of merger-related financial arrangement. Twenty-three of these commenters thought that the NCUA should retain a threshold similar to or higher than that in the current rule. Fourteen commenters suggested that increases in compensation and benefits for staff transferring to continuing credit unions from merging credit unions are to be expected, because continuing credit unions are usually significantly larger than merging credit unions. A number of these commenters said disclosure should not be required in situations where an employee receives an increase as a result of transferring to the continuing credit union. Two commenters recommended disclosure of merger-related financial arrangements as an aggregate amount rather than broken out by individual recipient.

A smaller number of commenters either had no issues with the proposed definition of merger-related financial arrangement or wanted more detail in disclosures about merger-related financial arrangements. Two emphasized that all payments to management should be disclosed to members. One commenter suggested that the rule should provide for clawback of any merger-related financial arrangement not disclosed at the time of merger.

The final rule adopts a narrower definition of the term “merger-related financial arrangement” than proposed based on commenters' suggestions as well as experience gained from the merger review. The final definition covers fewer types of compensation than the definition in the current rule. In particular, the final rule will not require employer-provided medical insurance, retirement, and other benefits offered on a non-discriminatory basis to all employees of the continuing credit union to be disclosed as merger-related financial arrangements. All of the seven commenters who responded to the Board's question about whether such benefits should be subject to disclosure specifically requested that these types of benefits not be subject to disclosure.

The merger review provided further support for revising the definition of “merger-related financial arrangement.” The NCUA experienced significant difficulties in obtaining sufficient information about benefits at the continuing and merging credit unions because, in most cases, staff for the merging credit union were genuinely uninformed about the relevant details of their benefits plans at the merging and continuing credit unions. It thus seems unlikely that benefits offered to all employees of the continuing credit union would be a source of potential conflicts of interest. The merger review also confirmed the difficulties in quantifying and explaining these benefits in the member notice. Even after obtaining information on plan costs and benefits, it was often difficult to determine whether, for example, a particular health insurance plan at a continuing credit union was superior to that at a merging credit union. Potential benefits from new retirement plans are too far removed in time to accurately project what benefits, if any, might result. The Board agrees with commenters that benefits offered on a non-discriminatory basis to all employees of the continuing credit union need not be disclosed as merger-related financial arrangements for employees of the merging credit union. The definition of merger-related financial arrangement in the final rule thus excludes employer-provided medical insurance, retirement, and other benefits offered on a non-discriminatory basis to all employees of the continuing credit union.

The final rule also retains the current threshold for the value of merger-related financial arrangements in the current rule. This means that only merger-related increases that exceed the greater of $10,000 or 15% of compensation must be disclosed. As discussed in the preamble to the proposed rule, the Board believed eliminating the threshold would offer regulatory relief and promote clarity. In light of the number of comments requesting a de minimis threshold such as this, the Board has determined to retain the current rule's requirement that only increases that exceed the greater of $10,000 or 15% are subject to disclosure. Increases below this threshold are less likely to incentivize staff of merging credit unions to promote a merger that is not in members' best interests.

The proposed rule also includes any increases received in the 24 months before the merger, as well as related increases paid after the merger, in the definition of “merger-related financial arrangement.” Commenters objected to not having a date certain after a merger when compensation increases will not be deemed merger-related. Several commenters also stated that the NCUA should retain its “but for” test when considering whether an increase is merger-related and only require disclosure for increases that would not have occurred but for the merger. The Board has determined that the definition of “merger-related financial arrangement” in the final rule will include only increases that occurred because of, or in anticipation of, a merger (i.e., the “but for” test).

Merging credit unions should, however, be aware that any increases occurring in the 24 months before the merger may be deemed merger-related after review of board minutes, examination reports, and other relevant information. Similarly, continuing credit unions should be on notice that compensation provided only to staff transferred from the merging credit union is likely also merger-related and should be disclosed in the member notice if it is above the threshold amounts. If the NCUA discovers that a member notice was misleading or inaccurate about the amount of merger-related financial arrangements, it may take appropriate enforcement action.

While benefits that are available to all employees of a continuing credit union are not merger-related financial arrangements under the final rule, the Board emphasizes that any benefits that apply only to certain employees must be disclosed as merger-related financial arrangements if they meet the threshold in the rule. Some examples of these types of benefits include supplemental retirement plans for high-ranking employees, additional life insurance for certain employees, and additional paid leave time. Also, the following arrangements, identified during the merger review, provide other examples of the types of benefits that must be disclosed if they exceed the threshold amount.

Life insurance and annuities: One merging credit union had reduced the value of an executive's life insurance policy when the original premiums failed to yield the desired amount. Because the value of the policy was reduced, the executive became 100% vested in the policy several years earlier than scheduled. This reduction occurred several years before the merger. Shortly before the merger, and at the request of the continuing credit union, the merging credit union made another payment to restore the life insurance policy to the original amount, but without reverting to the original vesting schedule. This is a merger-related financial arrangement because, but for the merger, the executive's life insurance would have had a lower value.

Payment for accrued leave: In many mergers, executives or staff receive payment for accrued leave. The Board recognizes that many merging credit unions permit employees to cash out accrued leave under certain circumstances. Some credit union policies give employees the option to receive payment for accrued leave at specified times like year-end, some allow payouts when employees leave the credit union, and some policies allow both types of payments. Credit unions and their employees who have such policies often take the view that any payments for accrued leave should not be deemed merger-related financial arrangements. This is an overly narrow approach. Regardless of whether a merging credit union's policies give employees the right to cash out leave, the test is whether the payment for leave occurs earlier in time or in a greater amount because of the merger.

Bonuses: The Board is aware that the boards of directors of many merging credit unions want to recognize employees for their service to the credit union and do this by authorizing some type of payment to employees during the merger process. Some commenters and merging credit unions have argued that such payments in recognition of past service should not be deemed merger-related. In determining whether such payments must be disclosed, the NCUA will, as discussed above, apply the “but for” test and only require disclosure of payments that would not have occurred but for the merger.

Severance payment agreements: In several mergers, continuing credit unions executed employment agreements with employees of the merging credit union that constituted merger-related financial arrangements. Some contracts guaranteed employment for a number of months or years, with the proviso that if the employee was terminated for any reason other than for cause, the continuing credit union would pay the employee compensation for the remainder of the period. Other contracts were even more generous and promised to pay the employee compensation for the agreed-upon period even if the employee quit. Employment contracts that guarantee payment of compensation for a set period are merger-related financial arrangements if they result from the merger and meet the threshold in the definition.

The above examples are not an exhaustive list. The general rule is that any benefit that an employee from a merging credit union will receive at the continuing credit union that is greater than the threshold amount must be disclosed as a merger-related financial arrangement unless an identical benefit is offered to all employees of the continuing credit union. Also, any benefit under an existing arrangement that is triggered by a change in control provision is, by definition, a merger-related financial arrangement if it is greater than the threshold amount.

While the Board agrees with many commenters on various aspects of the subject of merger-related financial arrangements, a number of commenters made flatly erroneous comments on this topic. These include comments that: (1) Discounted the nature of member ownership and the obligations a credit union has to its member-owners; (2) made incorrect statements about disclosure requirements applicable to other entities; and (3) ignored the potential for conflicts of interest due to increases in compensation. For example, five commenters suggested that the NCUA's review of merger-related compensation alone would suffice and disclosure to members was unnecessary. Another suggested that members have no role in considering merger-related payments to employees. These comments are legally inaccurate and philosophically off-base. The net worth of a credit union belongs to its members. Payments to insiders, especially in the context of a voluntary merger where a credit union could choose to liquidate and distribute its net worth among its members, are distributions of the credit union's net worth. Accordingly, members should be informed when a significant payout occurs.

Another objection the NCUA heard frequently during the merger review was that requiring such disclosures would cause merger votes to fail. The merger review demonstrates these fears have no basis in reality. During the merger review, despite heightened scrutiny and disclosures of merger-related financial arrangements, no mergers failed for this reason.19

19 Of the 139 mergers reviewed as of May 7, 2018, the NCUA is aware of only two that were not approved by members and those mergers had no merger-related financial arrangements.

Similarly, some commenters opined that the proposed rule would subject the compensation of employees of merging credit unions to a higher level of scrutiny than employees of any other type of industry. Contrary to these assertions, even if the proposal's requirement to disclose increases in compensation related to the merger had been adopted as proposed, employees of merging credit unions are subject to far fewer disclosures about their compensation than employees of other industries. The existing rule and proposed rule only require disclosure of the amount of increases above the threshold amount. In contrast, many employees and executives in other industries are subject to disclosure of the entire amount of their compensation. Salary information for the CEO, CFO and the three other most highly compensated employees of publically-traded companies is available in filings with the Securities and Exchange Commission. Salary information for CEOs of non-profit organizations, including state-chartered credit unions, is available on Form 990 filed with the Internal Revenue Service.

Other commenters seemed unaware of the potential for conflicts of interest associated with merger-related financial arrangements. Several stated that higher salaries at the continuing credit union do not present a conflict of interest necessitating disclosure, or that such increases should only be subject to disclosure if the total amount of an employee's salary would be above what is customary for similar positions at the continuing credit union. The Board disagrees. The prospect of a significantly higher salary at the continuing credit union could be a motivating factor in an individual's choice to advocate for a merger, both internally within the credit union leadership and with members. Credit union management may well have considerable influence with members, who may look to management for trusted opinions and advice about whether the proposed merger is in the best interests of the credit union and its members. It is not unimaginable that the prospect of a significantly higher compensation package could affect an individual manager's thinking about the desirability of the merger.

The Board does not object to the fact that employees of merging credit unions may be seeking or receiving higher remuneration through a merger. The Board agrees that in many cases, employees of merging credit unions are receiving below-market pay, and some of these credit unions do not have the ability to appropriately compensate their deserving employees. During the merger review, the vast majority of mergers that included compensation increases had increases that were below the threshold amount for merger-related financial arrangements in the current and final rule. Thus, the continuing credit union was able to adjust compensation to market rates without triggering a disclosure requirement. The final rule simply requires that members be informed of significant increases, so that they understand all of the factors potentially contributing to the merger.

One commenter requested the disclosure requirement only apply to the amount of the increase, not entire compensation. The Board reiterates that, as stated in the rule text and discussed in the preamble to the proposal, and as under the current rule, only the amounts of the increases are subject to disclosure.

The merger review identified many instances where a merging credit union had not disclosed all merger-related financial arrangements in their member notices. In some of these cases, credit union representatives asserted that the payment should not be deemed merger-related if the merging credit union had the ability to make this payment. The determinative factor is not whether the merging credit union could have chosen to make this payment had it remained a separate credit union. If that were the standard, many payments by a merging credit union would fall outside the definition. Rather, the relevant question is, “Would this payment have occurred if the credit union were not merging?” If the answer is no, then the payment is merger-related and the merging credit union must disclose it on the member notice if it exceeds the threshold amount.

Finally, during the merger review, staff identified a number of instances where merging credit unions with significant levels of merger-related financial arrangements made the required disclosures, but surrounded the disclosure of the amounts with voluminous text. Some draft disclosures, particularly those prepared by outside attorneys, seemed designed to obscure or bury the fact of the payments in the name of providing “context” about the need for the payments. Again, nothing in the FCU Act or the final rule prohibits payments, in any amount, to insiders of a merging credit union. The Board neither encourages nor discourages such payments, as this determination rests with the boards of the merging and continuing credit unions and the members of the merging credit union. The Board, however, is requiring that disclosures to members of the merging credit union be clear and understandable, as provided in the revised model member notice.

Record Date

The proposed rule also adds a definition of “record date” to clarify which FCU members are eligible to vote on a proposed merger. The NCUA received only two comments on this provision, both of which supported adding this definition. Accordingly, the definition of “record date” in § 708b.2 is unchanged from the proposed rule.

C. Section 708b.105 Submission of Merger Proposal to the NCUA

The proposed rule required the merging and the continuing credit unions to submit their respective board minutes to the NCUA that reference the merger during the 24 months before the boards of directors of the credit unions approved the merger plan. Twelve commenters thought this time period was excessive and suggested a shorter period, while one commenter observed that merger-related discussions might have begun earlier than two years before the merger. The merger review documented many merger-related discussions that occurred before the six-or twelve-month lookback some commenters favored. Also, while examiners review board minutes during exams, these are not, as some commenters claimed, available for the Regional Office to download when a merger package is submitted. Accordingly, the final rule adopts this requirement as proposed.

The proposed rule also added a requirement that the merging and continuing credit unions certify that there are no other merger-related financial arrangements other than those disclosed in the notice to the members of the merging credit union. The final rule adopts this requirement as proposed, with one addition. As suggested by one commenter, the final rule adds the requirement that the CEOs of both credit unions also sign the certification.

D. Section 708b.106 Approval of the Merger Proposal by Members Timing Requirements for Member Notice

The proposed rule increased the length of the minimum notice period preceding the meeting to discuss and vote on the merger proposal. Under the current rule, a merger meeting and vote could occur as few as seven days after the merging FCU mails notice of the meeting to its members. The proposal required a merging FCU to mail notice of the meeting and vote at least 45, but no more than 90, days before the meeting. Twenty-three commenters expressed an opinion about the notice period. Sixteen of the commenters suggested a shorter notice period, although several of these commenters also agreed the current seven-day minimum was too short. Six commenters supported the proposal's timeframe or requested a longer notice period. One commenter agreed the current seven-day notice period was insufficient but did not suggest an alternative.

The Board is adopting the timing requirements for the member notice as proposed, except for FICUs seeking to terminate NCUSIF coverage. The Board agrees with commenters who noted that the process of relinquishing the charter of a functioning credit union, and determining the disposition of the merging credit union's net worth, merits allowing members sufficient time to consider the merger proposal. The value of a credit union charter is considerable even without considering the net worth of the merging credit union. Obtaining a new credit union charter is time-consuming and requires organizers to raise capital. Moreover, usually most or all of the merging credit union's net worth transfers to the continuing credit union. For these reasons, an expanded notice period is appropriate.

The Board does not agree with some commenters' concerns that the 45-day minimum notice period will create problems when a quick merger is necessary. The Board reminds these commenters that the merger rule already permits the NCUA to waive the member vote if it finds that a merging credit union is in danger of insolvency and that a merger would avoid a loss to the NCUSIF.20 If a merging credit union's situation is severe enough to warrant a waiver of the member vote, obviously the 45-day notice requirement would not apply. For other merging credit unions, the addition of a reasonable number of days to the process will not affect the merger. OGC's merger review did not identify any mergers where changing the required notice period would have caused the merger proposal to fail. Further, once credit unions build in the increased notice period into their estimates of the timeframe required to merge, the effect on merger transactions should be minimal.

20 12 CFR 708b.105(b).

The Board is not lengthening the notice period for mergers where a FICU is proposing to terminate NCUSIF coverage by merging with a non-federally insured credit union. For terminations of NCUSIF coverage, the FCU Act specifies a notice period of at least seven days, but no more than 30 days.21 The Board cannot adopt a regulation that would conflict with the statute and so is retaining the requirement in the current rule for a notice period of seven to 30 days for mergers that result in termination of NCUSIF coverage.

21 12 U.S.C. 1786(d)(2).

Ideally, the Board would prefer to impose requirements for providing member notice in mergers that involve termination of federal share insurance that are the same as requirements for member notices in mergers that do not include federal share insurance termination. The required statutory notice period for federal share insurance termination,22 however, makes this impossible. Accordingly, the final rule retains the existing requirement that FICUs proposing to merge into a non-federally insured credit union must send their members notice at least 7 but not more than 30 days before the member vote.

22Id.

In practice, however, many members of FICUs seeking to terminate NCUSIF coverage already receive a notice period that is closer to the notice period the final regulation imposes for other types of mergers. The FCU Act requires that at least 20% of members participate in the vote to terminate federal share insurance coverage.23 Because of this participation requirement, some credit unions seeking to terminate NCUSIF coverage provide an additional, pre-notice communication to increase the likelihood of achieving the required member participation. The 7- to 30-day notice period in the FCU Act applies only once a credit union's board approves a proposal to terminate insurance coverage.24 As the FCU Act is silent about notices before the credit union board approves an NCUSIF termination proposal, the NCUA has permitted credit unions seeking to terminate NCUSIF coverage to send an additional notice in advance of the credit union board's approval to advise members that the credit union's board will be considering the matter.25

23Id.

24Id.

25 70 FR 3279, 3285 (Jan. 24, 2005).

Contents of Member Notice

The proposed rule also included changes to the contents of the notice members of merging credit unions receive. These changes were designed to improve the quality and readability of the information provided in the member notice. Relatively few commenters made specific observations about these provisions, and the comments were mixed. Three commenters, who were otherwise opposed to the rule, affirmatively noted they had no objections to these changes or that they improved clarity. Two commenters deemed the goal of having a short, understandable notice unrealistic. One commenter said that merging credit unions should determine what information is most relevant to their members. Several commenters worried that lengthy disclosures would make members less likely to read them.

Several commenters thought the member disclosure documents should contain more information. One requested the notice include more information about the factors the credit union's board considered in determining to merge and in selecting a merger partner. Five suggested the disclosures should include additional information about the disposition of the merging credit union's net worth. These suggestions included: (1) Requiring the merging credit union to disclose the ratio of member benefits to the merging credit union's net worth compared to the ratio of merger-related financial arrangements to the merging credit union's net worth; (2) requiring the notice to discuss the possibility of a merger dividend to members; and (3) requiring the notice to state the dollar amount of the merging credit union's net worth. Another commenter requested specific disclosures when an acquiring credit union books “negative good will” due to the merger, including the merging credit union's estimated book value and market value presented in terms of dollars per member. Other commenters requested that instead of requiring information about life savings and loan protection insurance, which are infrequently offered, the notice should require specific information about more common products and services.

The Board is adopting the amended disclosures mostly as proposed. The only change in the final rule is the addition of information in the member notice about the effect of the merger on ATM access. In the proposal, the Board inquired whether the required disclosures in the notice should be expanded to include items such as ATM access or fee comparisons.26 Several commenters requested the member notice include information about any ATM access changes, as well as other suggestions. The Board believes that the amended disclosures adequately convey to members the most relevant information—how the merger will affect locations and services and how or if there will be a distribution of the merging credit union's net worth. In addition, as discussed below, the NCUA has added revised sample member notice and ballot forms that conform to the requirements in § 708b.304.

26 82 FR 26605, 26610 (June 8, 2017).

The Board also clarifies that the member notice and ballot should not be combined with other types of notices. For example, one draft member notice submitted during the merger review attempted to combine the merger notice with the Supervisory Committee audit.27 The merger notice included a statement at the very end that the member should check their account balances as listed on an enclosed sheet, and unless they returned another document disputing the balance, the credit union's records were presumed correct. Although this procedure is the most common way credit unions conduct Supervisory Committee audits and is not problematic on its own, in this case, members who failed to read to the end of the member notice would not have realized they also needed to verify their account balances. The Board understands the appeal of consolidating information into fewer mailings, but this convenience for the credit union is outweighed by the danger that members will miss information about the proposed merger, the other issue, or both.

27 The Act requires an FCU's Supervisory Committee to verify member account balances at least once every two years. 12 U.S.C. 1761d.

Member Comments on the Proposed Merger Transaction

The proposed rule included provisions to facilitate member discussions about the merger transaction. These provisions, modelled on a similar requirement in the NCUA's rule governing credit union to bank conversions, would establish procedures to allow for member-to-member (MTM) communication in advance of a member vote. The MTM communication provision was the least popular part of the proposed rule, with 45 commenters opposing it. The most common objection was that the MTM communication process would delay the merger process, make mergers more complicated and costly, or discourage them entirely. Another frequently expressed fear was that disgruntled members, employees or competitors would use the MTM communication to convey misleading or inaccurate information. Other commenters opined that the MTM would expose the merging and continuing credit unions to reputation or litigation risk, raise the costs of mergers, and that members prefer alternate methods of receiving communications from other members. Finally, a few commenters objected to the NCUA's role in overseeing the MTM communication process and disagreed with the NCUA's observation that the proportion of votes in favor of merger is lower for ballots cast in person than for ballots cast by mail and, therefore, justifies the need for additional MTM communication.

Commenters suggested a variety of alternatives to the MTM provisions of the proposed rule. Two commenters suggested the merging credit union aggregate all member comments and either distribute one communication, or share the aggregated comments at or before the special meeting. Three commenters suggested holding an extra member meeting either during the voting period or before the voting period where members can obtain information on and discuss the merger, with a summary of the meeting posted online. Two commenters suggested that the NCUA create an online posting for each merger that allows members to submit comments. Further, one commenter requested public notice at the time a merger application is filed with the NCUA.

The Board believes many of the commenters' fears about the MTM communication provision are unlikely to materialize. The MTM communication provisions were modelled after those in the NCUA's part 708a regulation on credit union conversions to banks. Since the MTM communication provisions of part 708a took effect in early 2007, there have been eleven bank conversion attempts. An MTM communication occurred in fewer than half of these attempts. As most proposed bank conversions, which have a greater effect on member rights than a merger with another credit union, do not have an MTM communication, the Board finds it unlikely that many credit union merger proposals would evoke MTM communications.

In terms of the potential for abuse, the Board reminds commenters that the proposed rule provided for the NCUA to review MTM communications that merging credit unions find inaccurate or misleading. While this process would require time and effort on the NCUA's part, the Board expects this commitment would not be major because only a small proportion of credit union mergers would involve MTM communications.

In summary, the Board believes many of the commenters' fears about the effects of the MTM communication provisions are exaggerated. Nevertheless, the Board agrees that there may be an alternative way to accomplish the Board's goal of permitting members to dialogue about the proposed merger transaction while avoiding the features that made the MTM communication objectionable to commenters. The Board requested comments about all aspects of the proposed rule, which includes the MTM communication provision. The Board is now adopting the suggestions of two commenters who requested that the NCUA provide publicly accessible information about proposed merger transactions on the NCUA's website, with a section for member comments. The final rule requires the member notice to include information about the NCUA website where merger information and member comments are posted, as well as the email and physical addresses where members may submit their comments for posting.

Other regulators regularly provide similar information on their websites about pending transactions of regulated institutions. The Office of the Comptroller of the Currency (OCC), for example, posts a weekly listing of all applications it has received and actions it has taken.28 The actual applications for transactions such as mergers, are also posted on the OCC's website, along with a section for posting public comments.29

28https://www.occ.gov/topics/licensing/corporate-activities-weekly-bulletin/index-weekly-bulletin.html.

29https://www.occ.gov/topics/licensing/public-comment/index-public-comments.html.

The Board intends to establish a page on the NCUA's website similar to the OCC's, allowing credit union members and the public to view non-confidential portions of merger applications. The member notice will include a link to the website where the merger application and comments will be available, as well as information about how to submit a comment. Because the purpose of the website is to encourage dialogue between credit union members, the NCUA will post comments only from credit union members, as well as any responses from credit union management. Members must include their name and their city and state of residence, at a minimum, or their comment will not be posted. The NCUA will review comments before posting to ensure that the comments are appropriate and limited to the topic of the proposed merger.

For the reasons above, the merger applications website replaces the MTM communication provisions of the proposed rule. The NCUA is in the process of developing the website, and it will be operational by the effective date of this rule.

Electronic Notification and Voting

As part of the merger review, a credit union inquired if it could supply the member notice, and conduct the member vote, electronically. The Board does not object to providing member notices and other documents electronically to members who have previously agreed to electronic notification. Nor does the Board object to providing the option to vote electronically. Credit unions using electronic means, however, must also allow members to vote by paper ballot in person or by mail and should ensure that their bylaws allow for voting by electronic means.

Return of Net Worth to Members

Several times during the merger review, credit unions inquired about the permissible methods of calculating how to return some net worth to members. In particular, some credit unions wanted to base the calculation on loan balances as well as, or in addition to, the traditional methodology of using share account balances to calculate a merger dividend. The FCU Act does not specify a particular methodology for returning net worth to members of a merging credit union. Also, the Act has general authority for loan-related rebates; credit union boards may “authorize interest refunds to members of record at the close of business on the last day of any dividend period from income earned and received in proportion to the interest paid by them during that dividend period.” 30 The merger regulation is also not specific, simply requiring that a merging credit union must provide an explanation of “any provisions for reserves, undivided earnings or dividends.” 31 Borrowers, as well as savers, contribute to building a credit union's net worth. Accordingly, the Board clarifies that the regulation does not prohibit returning a portion of net worth to members based on loan balances. The Board cautions that merging credit unions that are returning a portion of net worth based on loan balances must describe the payment accurately. Payments based on loan balances should use a term such as “interest rebate,” as dividends only apply to share accounts. Also, the NCUA will review benefits provided to covered persons and will require disclosure if a return of net worth occurs in an amount that exceeds the threshold for merger-related financial arrangements.

30 12 U.S.C. 1761b(9).

31 12 CFR 708b.104(a)(6).

E. Forms

In the proposed rule, the NCUA committed to issue revised forms and revisions to its Merger Manual in conjunction with any final rulemaking.32 In light of the fact that subpart C of part 708b already contains many merger-related forms, the Board has determined to eliminate a separate merger manual and incorporate all relevant forms into the rule. Having all merger-related information in the same location will ease compliance for credit unions. It will also prevent the Merger Manual and forms from falling out of conformance over time due to regulatory changes.

32 82 FR 26605, 26610 (June 8, 2017).

The final regulation now includes a new § 708b.304 that includes all of the merger-related forms for a FICU merging into another FICU. Most of the forms are substantially identical to existing forms in the merger manual. The Member Notice, however, has been significantly revised. The revisions incorporate all of the requirements of the final rule. The NCUA, is not, however, making this format mandatory and will consider other notices that provide the same level and type of information to members. Merging credit unions should be aware, however, that NCUA approval of alternate forms of member notices will require extra time, as Regional Offices will likely need to consult with the Office of General Counsel about the modified language.

III. Conforming and Clarifying Amendments to Other NCUA Regulations Appendix A to Part 701, Federal Credit Union Bylaws

As discussed above, the Board is requiring merging credit unions to mail member notices at least 45 days, but no more than 90 days, before the meeting to vote on a proposed merger. Accordingly, the Board is proposing to amend Article IV of the FCU Bylaws to be consistent with the proposed amendments to part 708b.

IV. Regulatory Procedures A. Regulatory Flexibility Act

The Regulatory Flexibility Act requires the NCUA to prepare an analysis of any significant economic impact a regulation may have on a substantial number of small entities (primarily those under $100 million in assets).33 This rule will affect relatively few small credit unions. Accordingly, the NCUA certifies that this regulation will not have a significant economic impact on a substantial number of small entities.34

33 5 U.S.C. 603(a).

34Id. 605(a).

B. Paperwork Reduction Act

The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq.) requires that the Office of Management and Budget (OMB) approve all collections of information by a Federal agency from the public before they can be implemented. Respondents are not required to respond to any collection of information unless it displays a current, valid OMB control number.

The proposed increase in burden under § 708b.106 associated with member-to-member communications has been eliminated. NCUA will offer a website where members can post comments on proposed mergers.

NCUA believes that the certification requirement under § 708b.104 does not warrant an increase to the 5 hours already allotted a respondent to submit the merger proposal to NCUA. Similarly, the requirement to supply two years of board meeting minutes will also not add to the burden since FICUs must maintain these minutes and make them available for examiners. This also applies to § 708b.106(b) where the final rule specifies the contents of a member notice. This notice is to include the addition of the website where members can share comments and a targeted listing of branch locations of merging credit unions. This will not increase the 7 hours currently approved for a respondent to provide this notice.

In accordance with the PRA, the information collection requirements included in this final rule have been submitted to OMB for approval under control number 3133-0024. The proposed rule made revisions to the information collection requirements under OMB control number 3133-0182; but with the removal of the member-to-member communications, there is no change to the burden.

Estimated number of respondents: 214 FICU.

Estimated total annual burden hours: 7,490.

C. Executive Order 13132

Executive Order 13132 encourages independent regulatory agencies to consider the impact of their actions on state and local interests. The NCUA, an independent regulatory agency as defined in 44 U.S.C. 3502(5), voluntarily complies with the executive order to adhere to fundamental federalism principles. The final rule does not 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. Nothing in the rule precludes states from adopting more rigorous requirements. Further, the requirements for FISCUs are the same as for FCUs, and are designed to provide disclosure to members, that are similar to, or less burdensome than the requirements imposed by the SEC on state-chartered publicly-traded companies, or by the IRS on state-chartered non-profits (including many FISCUs). The NCUA has therefore determined that this final rule does not constitute a policy that has federalism implications for purposes of the executive order.

D. Assessment of Federal Regulations and Policies on Families

The NCUA has determined that this rule will not affect family well-being within the meaning of section 654 of the Treasury and General Government Appropriations Act, 1999, Public Law 105-277, 112 Stat. 2681 (1998).

E. Small Business Regulatory Enforcement Fairness Act

The Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) provides generally for congressional review of agency rules. A reporting requirement is triggered in instances where NCUA issues a final rule as defined by Section 551 of the Administrative Procedure Act. NCUA does not believe this final rule is a “major rule” within the meaning of the relevant sections of SBREFA. NCUA has submitted the rule to the OMB for its determination in that regard.

List of Subjects 12 CFR Part 701

Advertising, Credit, Credit unions, Fair housing, Insurance, Reporting and recordkeeping requirements.

12 CFR Part 708b

Credit unions, Mergers of credit unions.

By the National Credit Union Administration Board, on June 21, 2018. Gerard Poliquin, Secretary of the Board.

For the reasons discussed above, the National Credit Union Administration amends 12 CFR parts 701 and 708b as follows:

PART 701—ORGANIZATION AND OPERATIONS OF FEDERAL CREDIT UNIONS 1. The authority citation for part 701 continues to read as follows: Authority:

12 U.S.C. 1752(5), 1755, 1756, 1757, 1758, 1759, 1761a, 1761b, 1766, 1767, 1782, 1784, 1786, 1787, 1789. Section 701.6 is also authorized by 15 U.S.C. 3717. Section 701.31 is also authorized by 15 U.S.C. 1601 et seq.; 42 U.S.C. 1981 and 3601-3610. Section 701.35 is also authorized by 42 U.S.C. 4311-4312.

2. Revise the first sentence of Section 2 of Article IV of appendix A to part 701 to read as follows: Appendix A to Part 701—Federal Credit Union Bylaws Article IV. Meetings of Members

Section 2. Notice of meetings required. a. The secretary must give written notice to each member: At least 30 but no more than 75 days before the date of the annual meeting; at least 7 days before the date of any special meeting; and at least 45 but no more than 90 days before the date of any meeting to vote on a merger with another credit union. * * *

PART 708b—MERGERS OF FEDERALLY-INSURED CREDIT UNIONS; VOLUNTARY TERMINATION OR CONVERSION OF INSURED STATUS 3. The authority citation for part 708b continues to read as follows: Authority:

12 U.S.C. 1752(7), 1766, 1785, 1786, and 1789.

4. Amend § 708b.2 as follows: a. Add a definition in alphabetical order for “Covered person”. b. Revise the definition of “Merger-related financial arrangement”. c. Add a definition in alphabetical order for “Record date”. d. Remove the definition for “Senior management official”.

The revisions and additions read as follows:

§ 708b.2 Definitions.

Covered person means the chief executive officer or manager (or a person acting in a similar capacity); each of the four most highly compensated employees other than the chief executive officer or manager; and any member of the board of directors or the supervisory committee.

Merger-related financial arrangement means a material increase in compensation or benefits because of, or in anticipation of, a merger that any covered person of a merging credit union has received during the 24 months before the date the boards of directors of both credit unions approve the merger plan. It also means a material increase in compensation or benefits that any covered person of a merging credit union will receive in the future because of the merger. This includes the sum of all increases in direct and indirect compensation, such as salary, bonuses, leave, deferred compensation, early payout of retirement benefits, or any other financial rewards, other than benefits available to all employees of the continuing credit union on identical terms and conditions. A material increase is an increase in value that exceeds the greater of 15 percent of existing compensation or benefits or $10,000.

Record date means a date announced by the board of directors of a merging credit union as the date by which a person must have been a member of the merging credit union to be eligible to vote on a proposed merger.

8. Amend § 708b.104 by revising paragraphs (a)(4), (5) and (8), removing the period at the end of paragraph (a)(9)(ii) and adding a semicolon in its place, and adding paragraphs (a)(10) and (11) to read as follows.
§ 708b.104 Submission of merger proposal to the NCUA.

(a) * * *

(4) Proposed Notice of Special meeting of the Members;

(5) Copy of the form of Ballot to be sent to the members;

(8) If the merging credit union's assets on its latest call report are equal to or greater than the threshold amount established and published in the Federal Register annually by the Federal Trade Commission under 15 U.S.C. 18a(a)(2)(B)(i), a statement about whether the two credit unions intend to make a Hart-Scott-Rodino Act premerger notification filing with the Federal Trade Commission and, if not, an explanation why not;

(10) Board minutes for the merging and continuing credit union that reference the merger for the 24 months before the date the boards of directors of both credit unions approve the merger plan; and

(11) A certification signed by the CEOs and Chairmen of the merging credit union and the continuing credit union, using the form in § 708b.304(c), that there are no merger-related financial arrangements to covered persons other than those disclosed in the notice required by paragraph (a)(4) of this section.

9. Revise § 708b.106 to read as follows:
§ 708b.106 Approval of the merger proposal by members.

(a) Advance notice of member vote. Members of the merging credit union must receive written notice at least 45 calendar days, but no more than 90 calendar days, before any member meeting called to vote on the merger proposal.

(b) Contents of member notice. While the merging credit union may refer members to attachments for additional information or explanation, the notice provided to members pursuant to paragraph (a) of this section must be in the form set forth in subpart C of this part and contain the following information:

(1) A statement of the purpose of the meeting and the time and place;

(2) A statement that members may vote on the merger proposal in person or by mail ballot (or electronically, if the credit union's Bylaws so permit) received by the merging credit union no later than the date and time announced for the member meeting called to vote on the merger proposal;

(3) A statement about the availability of a website where members of the merging credit union can share comments and questions about the merger pursuant to paragraph (d) of this section;

(4) A summary of the merger plan, including but not necessarily limited to:

(i) A statement that the merging credit union does or does not have a higher net worth percentage than the continuing credit union;

(ii) A statement as to whether the members of the merging credit union will receive a share adjustment or other distribution of reserves or undivided earnings, including a summary of reasons for the decision and, at the merging credit union's discretion, a short explanation about the capital level;

(iii) An explanation of any changes to ATM access or to services such as life savings protection insurance or loan protection insurance;

(iv) If the continuing credit union is not federally insured, an explanation of any changes related to federal share insurance; and

(v) A detailed description of all merger-related financial arrangements. This description must include the recipient's name and title as well as, at a minimum, the amount or value of the merger-related financial arrangement expressed, where possible, as a dollar figure;

(5) A statement of the reasons for the proposed merger; and

(6) A statement identifying the physical locations of the merging credit union by street address, stating whether each location is to be closed or retained, and a list of branches of the continuing credit union by street address that are located in reasonable proximity to the merging credit union's locations.

(c) Additional documents. The notice provided to members pursuant to paragraph (a) of this section shall be accompanied by the following separate documents:

(1) The current financial statements for each credit union and a consolidated financial statement for the continuing credit union;

(2) Any additional information or explanatory material that the merging credit union wishes to provide that does not detract from the required disclosures and gives further detail to members regarding information disclosed pursuant to paragraph (b) of this section; and

(3) A Ballot for Merger Proposal.

(d) Member information. Within 30 calendar days of receiving the notice provided to members pursuant to paragraph (a) of this section, members may jointly or individually submit a comment about the merger to the NCUA. The NCUA will post these comments on a website accessible to credit union members.

(e) Posting member comments. The NCUA reserves the right to not post comments that it reasonably believes:

(1) Are false or misleading with respect to any material fact;

(2) Omit a material fact necessary to make the statement in the material not false or misleading;

(3) Relate to a personal claim or personal grievance, or solicit personal gain or business advantage by or on behalf of any party;

(4) Address any matter, including a general economic, political, racial, religious, social, or similar cause that is not related to the proposed merger;

(5) Directly or indirectly and without expressed factual foundation impugn a person's character, integrity, or reputation;

(6) Directly or indirectly and without expressed factual foundation make charges concerning improper, illegal, or immoral conduct; or

(7) Directly or indirectly and without expressed factual foundation make statements impugning the safety and soundness of the credit union.

(f) Clear and conspicuous disclosures required. Any information required by paragraph (b) of this section to be disclosed on the notice provided to members pursuant to paragraph (a) of this section must be legible, written in plain language, and reasonably understandable by ordinary consumers.

(g) Approval of a proposal to merge. Approval of a proposal to merge a federally-insured credit union into a federally-insured credit union requires the affirmative vote of a majority of the members of the merging credit union who vote on the proposal. Members must be members as of the record date to vote. If the continuing credit union is not federally insured, the requirements of subpart B of this part also apply, and the merging credit union must use the appropriate form ballot and notice in subpart C of this part unless the Regional Director approves the use of different forms. If the continuing credit union is federally insured, use of the sample form notice, ballot, and certification of vote forms in subpart C of this part will satisfy the requirements of this subpart.

10. Add § 708b.304 to read as follows:
§ 708b.304 Merger of a federally-insured credit union into another federally-insured credit union.

(a) Merger resolution for continuing credit union, NCUA 6302. The continuing credit union's board of directors must complete this form after it votes to merge with the merging credit union. The merger package required by § 708b.104 must include merger resolutions from both the merging and continuing credit unions.

Merger Resolution (Continuing Credit Union) Resolution

The Board of Directors believes our credit union should merge with [name of merging credit union] (merging credit union). Our credit union will assume the merging credit union's shares and liabilities. The merging credit union will transfer to our credit union all of its assets, rights, and property. All members of the merging credit union will receive shares in our credit union, which will stay in business under its present charter.

Certification

We, the Board Presiding Officer and Secretary of this credit union, are authorized to:

• Seek National Credit Union Administration Regional Director approval of the merger.

• Execute and deliver the merger agreement on the effective date of the merger.

• Execute all agreements and other papers required to complete the merger.

We certify to the National Credit Union Administration that the foregoing is a full, true, and correct copy of a resolution adopted by the Board of Directors of our credit union at a meeting held under our bylaws on [month and date], 20__. A quorum was present and voted. The resolution is duly recorded in the minutes of the meeting and is still in full force and effect.

Board Presiding Officer Date Secretary Date

(b) Merger resolution for merging credit union, NCUA 6303. The merging credit union's board of directors must complete this form after it votes to merge with the continuing credit union. The merger package required by § 708b.104 must include merger resolutions from both the merging and continuing credit unions.

Merger Resolution (Merging Credit Union) Resolution

The Board of Directors believes our credit union should merge with [name of continuing credit union] (continuing credit union). The continuing credit union will assume the shares and liabilities of our credit union. Our credit union will transfer to the continuing credit union all of our assets, rights, and property. All members of our credit union will receive shares in the continuing credit union, which will stay in business under its present charter.

Certification

We, the Board Presiding Officer and Secretary of this credit union, are authorized to:

• Seek National Credit Union Administration Regional Director approval of the merger.

• Execute and deliver the merger agreement on the effective date of the merger.

• Execute all agreements and other papers required to complete the merger.

We certify to the National Credit Union Administration that the foregoing is a full, true, and correct copy of a resolution adopted by the Board of Directors of our credit union at a meeting held under our bylaws on [month and day], 20__. A quorum was present and voted. The resolution is duly recorded in the minutes of the meeting and is still in full force and effect.

Board Presiding Officer Date Secretary Date

(c) Merger agreement, Form 6304. Submit a proposed merger agreement to the NCUA with the initial merger package required by § 708b.104. Do not sign, date, or notarize the proposed agreement. At the completion of the merger, officials of the merging and continuing credit unions must sign this agreement and have it notarized. The continuing credit union should retain the original document. Send one copy of the executed form to the NCUA Regional Director (see Form NCUA 6309 in paragraph (g) of this section). The date you execute this document is the effective date of the merger.

Merger Agreement

This agreement is made and entered into on [month and day], 20__, by and between [name of continuing credit union] (continuing credit union) and [name of merging credit union] (merging credit union). The continuing credit union and the merging credit union agree to the following terms:

1. The merging credit union will transfer to the continuing credit union all of its assets, rights, and property.

2. The continuing credit union will assume and pay all liabilities of the merging credit union. In addition, the continuing credit union will issue all members of the merging credit union the same amount of shares they currently own in the merging credit union, subject to the following share adjustments (if any):

[Name of continuing credit union] by: Board Presiding Officer Treasurer [Name of merging credit union] by: Board Presiding Officer Treasurer Before me a Notary Public (or other authorized officer) appeared the above named [name of Board presiding officer] and [name of Treasurer], Board Presiding Officer and Treasurer of [name of continuing credit union], who being personally known to me as (or proved by the oath of credible witnesses to be) the persons who executed the annexed instrument acknowledged the same to be their free act and deed and in their respective capacities the free act and deed of said credit union. (SEAL) Notary Public My commission expires______, 20__. State of County of Before me a Notary Public (or other authorized officer) appeared the above named [name of Board Presiding Officer] and [name of Treasurer], Board Presiding Officer and Treasurer of [name of merging credit union], who being personally known to me as (or proved by the oath of credible witnesses to be) the persons who executed the annexed instrument acknowledged the same to be their free act and deed and in their respective capacities the free act and deed of said credit union. (SEAL) Notary Public My commission expires______, 20__. State of County of

(d) Sample form notice to members, NCUA 6305A. If a federally insured credit union is merging into another federally insured credit union, use of this form will meet the requirements of § 708b.106. Brackets provide instructions or indicate that the merging credit union should fill in the appropriate information, or select the appropriate option to conform the notice to the circumstances of the merger.

Notice of Meeting of the Members of [Name] Credit Union

The Board of Directors of [name of merging credit union] have called a [special] meeting of the members of this credit union at [location, address], on [month, day, year] at [time]. The purpose of this meeting is:

1. To consider and act upon a plan and proposal for merging [name of merging credit union] with and into [name of continuing credit union] (hereinafter referred to as the “Continuing Credit Union”), whereby all assets and liabilities of the [name of merging credit union] will be merged with and into the Continuing Credit Union. All members of [name of merging credit union] will become members of the Continuing Credit Union and will be entitled to and will receive shares in the Continuing Credit Union for the shares they own in [name of merging credit union] on the effective date of the merger.

2. To ratify, confirm and approve the action of the Board of Directors in authorizing the officers of [name of merging credit union], subject to the approval of members, to do all things and to execute all agreements, documents, and other papers necessary to carry out the proposed merger.

The Board of Directors of [name of merging credit union] encourages you to attend the meeting and vote on the proposed merger. Whether or not you expect to attend the meeting, we urge you to sign, date and promptly return the enclosed ballot to vote on the proposed merger.

If you wish to submit comments about the merger to share with other members, you may submit them to the National Credit Union Administration (NCUA) at [insert email address] or [insert physical address]. The NCUA will post comments received from members on its website, along with the member's name, subject to the limitations and requirements of its regulations.

Other Information Related to the Proposed Merger:

The Board of Directors has carefully evaluated and analyzed the assets and liabilities of the credit unions and the value of shares in both credit unions. The financial statements of both credit unions, as well as the projected combined financial statement of the continuing credit union, follow as separate documents. In addition, the following information applies to the proposed merger.

Reasons for merger: The Board of Directors has concluded that the proposed merger is desirable and in the best interests of members because [insert reasons].

Net worth: The net worth of a merging credit union at the time of a merger transfers to the continuing credit union. [Name of merging credit union] [has or does not have] a higher net worth ratio than [name of continuing credit union].

Share adjustment or distribution: [Choose option A or B and delete the other.]

A: [Name of merging credit union] will not distribute a portion of its net worth to its members in the merger. The board of directors has determined a share adjustment, or other distribution of [name of merging credit union]'s net worth is unnecessary because [insert reasons].

B: [Name of merging credit union] will distribute a portion of its net worth to its members in the merger. The board of directors has determined to distribute a portion of [name of merging credit union]'s net worth as [describe method of calculating share adjustment or other provisions for reserves, undivided earnings or dividends.]

Locations of merging and continuing credit union: [Name of merging credit union]'s main office at [street address, city] will [close/remain open/remain open for__]. [If the merging credit union has branches, insert the same statement about the branch locations]. [Name of continuing credit union] has the following locations that are near [name of merging credit union]. [List address and type of location—i.e. main office, full-service branch for each non-ATM location of the continuing credit union in reasonable proximity to the locations of the merging credit unions.]

Changes to services and member benefits: [If applicable, explain any loss of services, such as increases in fees or loss of ATM access, as well as any changes to benefits such as life savings protection insurance or loan protection insurance. If inapplicable, delete entire section.]

Merger-related financial arrangements: [ ]

[If inapplicable, delete entire section.] NCUA Regulations require merging credit unions to disclose certain increases in compensation that any of the merging credit union's officials or the five most highly compensated employees have received or will receive in connection with the merger. The following individuals have received or will receive such compensation:

Name Title Description of increase Amount

Please note that the proposed merger must have the approval of the majority of members who vote.

Enclosed with this Notice of Special Meeting is a Ballot for Merger Proposal. If you cannot attend the meeting, please complete the Ballot and return it to [mailing address]. To be counted, your Ballot must be received by [month, day, year] at [time of special meeting].

BY THE ORDER OF THE BOARD OF DIRECTORS: President Date

(e) Form ballot, NCUA 6306A.

Ballot for Merger Proposal Name of Member: Account Number:

Your credit union must receive this ballot by [insert date of meeting]. Please mail or bring it to:

[insert credit union address]

I have read the Notice of Special Meeting for the members of Credit Union. The meeting will be held on the above date to consider and act upon the merger proposal described in the notice. I vote on the proposal as follows (check one box):

[ ] Approve the proposed merger and authorize the Board of Directors to take all necessary action to accomplish the merger. [ ] Do not approve the proposed merger. Signed: Member's Name Date:

(f) Form certification of vote, NCUA 6308A. Within ten calendar days after the membership vote, the merging credit union must complete this form and mail it to the NCUA Regional Director.

Certification of Vote on Merger Proposal of the Credit Union [Merging]

We, the undersigned officers of the [name of merging credit union], certify the completion of the following actions:

1. At a meeting on [month and day], 20__, the Board of Directors adopted a resolution approving the merger of our credit union with [name of continuing credit union] (continuing credit union).

2. Not more than 90 days or less than 45 days before the date of the vote, our members received copies of the notice of meeting and the ballot, as approved by the National Credit Union Administration.

3. The credit union arranged for a meeting of our credit union members at the time and place announced in the notice to consider and act upon the proposed merger.

4. At the meeting, the members present received an explanation of the merger proposal and any changes in products, services and locations.

5. The members of our credit union voted on of the merger as follows:

___Number of members present at the meeting ___Number of members present who voted in favor of the merger ___Number of members present who voted against the merger ___Number of additional written ballots in favor of the merger ___Number of additional written ballots opposed to the merger

6. The action of the members at the meeting was recorded in the minutes.

This certification signed [month and day], 20__. Board Presiding Officer Secretary

(g) Form certification of completion of merger, NCUA 6309. Within 30 calendar days after the effective date of the merger, the continuing credit union must complete this form and mail it to the NCUA Regional Director with the documents listed on the form.

Certification of Completion of Merger

We, the undersigned officers of the above-named credit union, certify to the National Credit Union Administration as follows:

1. The merger of our credit union with [name of merging credit union] was completed as of [month day and year of the executed merger agreement], according to the terms and plan approved by this Board of Directors by a resolution adopted at the meeting held on [month day and year of board of directors meeting]. We previously provided a certified copy of the resolution to the National Credit Union Administration.

2. We completed all required steps for the merger and transferred the merging credit union's assets.

Attached to this certification are the following documents:

1. Financial reports for each credit union immediately before the completion of the merger.

2. A consolidated financial report for the continuing credit union immediately after the completion of the merger.

3. The charter of the merging federal credit union [if available].

4. The insurance certificate for the merging federally insured credit union [if available].

5. A copy of the executed merger agreement, Form NCUA 6304.

This certification signed [month and day], 20__. Board Presiding Officer Treasurer

(h) Form calculation of PAS ratio, NCUA 6311. The merger package required by § 708b.104 must include PAS calculations for both the merging and continuing credit unions. The Probable Asset/Share Ratio (PAS) reflects the relative worth of $1 of shares in a credit union, assuming it will be an on-going concern. The ratio is computed by dividing the net value of assets by the credit union's total shares.

ADDITIONS: Cash is valued at book less any known potential losses. Loans are valued at book net of probable estimated loan losses (ALLL). Investments are valued at book value less any known losses. However, if a long-term investment is likely to be liquidated prior to maturity, it is valued at current market value. Fixed Assets are valued at book, except when major fixed assets are not in use or are in the process of being sold. In these instances, the asset is valued at its probable market value. Other Assets are valued at the most realistic value to the credit union, usually not to exceed book value.

DEDUCTIONS: Notes Payable are valued at book. Accounts Payable are valued at book. Other Liabilities are valued at book. Contingent and/or Unrecorded Liabilities are valued at the most realistic known value. This item should include any unrecorded dividends not accrued for the accounting period. Subsidiary Ledger Differences are deducted if the credit union is likely to suffer a loss due to the problem. Other Losses include any other known losses. Do not include deficits in undivided earnings or net losses because they have already reduced assets if properly recorded.

Probable Asset/Share Ratio—Continuing Credit Union Book Value Market Value ADDITIONS: Cash Loans Investments Fixed Assets Other Assets Total (A) DEDUCTIONS: Notes Payable Accounts Payable Other Recorded Liabilities Contingent and/or Unrecorded Liabilities Subsidiary Ledger Differences (Losses) Other Losses Total (B) Net Value of Assets (A−B) Total Shares Probable Asset/Share Ratio Probable Asset/Share Ratio—Merging Credit Union Book Value Market Value ADDITIONS: Cash Loans Investments Fixed Assets Other Assets Total (A) DEDUCTIONS: Notes Payable Accounts Payable Other Recorded Liabilities Contingent and/or Unrecorded Liabilities Subsidiary Ledger Differences (Losses) Other Losses Total (B) Net Value of Assets (A−B) Total Shares Probable Asset/Share Ratio

(i) Certification of no non-disclosed merger-related financial arrangements. The merger package required by § 708b.104 must include the following certification.

Certification of No Non-Disclosed Merger-Related Financial Arrangements

We, the undersigned officials of [name of merging credit union] and [name of continuing credit union], certify to the National Credit Union Administration (NCUA) as follows:

1. The information provided to the NCUA in the merger application, and the proposed disclosure to the members of [name of merging credit union] includes a complete, true and accurate statement about all merger-related financial arrangements, if any, provided to covered persons, as those terms are defined in Part 708b of the NCUA's regulations.

2. We understand that we have an affirmative duty to revise our merger application and the notice to the members of [name of merging credit union] if merger-related financial arrangements are added or increased after our application is submitted.

This certification signed [month and day], 20__. [name of continuing credit union] Board Presiding Officer CEO [name of merging credit union] Board Presiding Officer CEO
[FR Doc. 2018-13867 Filed 6-27-18; 8:45 am] BILLING CODE 7535-01-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 25 [Docket No. FAA-2018-0605; Special Conditions No. 25-730-SC] Special Conditions: Airbus Model A318, A319, A320 and A321 Series Airplanes; Electronic System Security Protection From Unauthorized External Access AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final special conditions; request for comments.

SUMMARY:

These special conditions are issued for the Airbus Model A318, A319, A320 and A321 series airplanes. These airplanes will have a novel or unusual design feature when compared to the state of technology envisioned in the airworthiness standards for transport category airplanes. This design feature is airplane electronic systems and networks that allow access from external sources (e.g., wireless devices, internet connectivity) to the airplane's internal electronic components.

The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

DATES:

This action is effective on Airbus on June 28, 2018. Send comments on or before August 13, 2018.

ADDRESSES:

Send comments identified by Docket No. FAA-2018-0605 using any of the following methods:

Federal eRegulations Portal: Go to http://www.regulations.gov/ and follow the online instructions for sending your comments electronically.

Mail: Send comments to Docket Operations, M-30, U.S. Department of Transportation (DOT), 1200 New Jersey Avenue SE, Room W12-140, West Building Ground Floor, Washington, DC, 20590-0001.

Hand Delivery or Courier: Take comments to Docket Operations in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue SE, Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

Fax: Fax comments to Docket Operations at 202-493-2251.

Privacy: The FAA will post all comments it receives, without change, to http://www.regulations.gov/, including any personal information the commenter provides. Using the search function of the docket website, anyone can find and read the electronic form of all comments received into any FAA docket, including the name of the individual sending the comment (or signing the comment for an association, business, labor union, etc.). DOT's complete Privacy Act Statement can be found in the Federal Register published on April 11, 2000 (65 FR 19477-19478).

Docket: Background documents or comments received may be read at http://www.regulations.gov/ at any time. Follow the online instructions for accessing the docket or go to Docket Operations in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue SE, Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

Varun Khanna, Airplane and Flight Crew Interface Section, AIR-671, Transport Standards Branch, Policy and Innovation Division, Aircraft Certification Service, Federal Aviation Administration, 2200 South 216th Street, Des Moines, Washington 98198; telephone and fax 206-231-3159; email [email protected]

SUPPLEMENTARY INFORMATION:

The substance of these special conditions previously has been published in the Federal Register for public comment. These special conditions have been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. Therefore, the FAA has determined that prior public notice and comment are unnecessary, and finds that, for the same reason, good cause exists for adopting these special conditions upon publication in the Federal Register.

Comments Invited

We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.

We will consider all comments we receive by the closing date for comments. We may change these special conditions based on the comments we receive.

Background

On February 2, 2017, Airbus applied for a change to Type Certificate No. A28NM for the installation of electronic network system architecture or Flight Operations and Maintenance Exchanger (FOMAX) equipment in the Model A318, A319, A320 and A321 series airplanes. The Airbus Model A318, A319, A320 and A321 series airplanes are twin-engine, transport category airplanes with a passenger seating capacity of 136 to 230 and a maximum takeoff weight of 123,458 to 213,848 pounds, depending on the specific design.

Type Certification Basis

Under the provisions of title 14, Code of Federal Regulations (14 CFR) 21.101, Airbus must show that the Model A318, A319, A320 and A321 series airplanes as changed, continue to meet the applicable provisions of the regulations listed in Type Certificate No. A28NM or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA.

If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Airbus Model A318, A319, A320 and A321 series airplanes because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.

In addition to the applicable airworthiness regulations and special conditions, the Airbus Model A318, A319, A320 and A321 series airplanes must comply with the fuel vent and exhaust-emission requirements of 14 CFR part 34, and the noise certification requirements of 14 CFR part 36.

The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.101.

Novel or Unusual Design Features

The Airbus Model A318, A319, A320 and A321 series airplanes will incorporate the following novel or unusual design feature:

The installation and activation of electronic network system architecture or Flight Operations and Maintenance Exchanger (FOMAX) equipment that allows access from external sources (e.g., wireless devices, internet connectivity) to the airplane's internal electronic components.

Discussion

The Airbus Model A318, A319, A320 and A321 series airplane architecture and network configuration may allow increased connectivity to and access from external network sources and airline operations and maintenance networks to the aircraft control domain and airline information services domain. The aircraft control domain and airline information services domain perform functions required for the safe operation and maintenance of the airplane. Previously these domains had very limited connectivity with external network sources. The architecture and network configuration may allow the exploitation of network security vulnerabilities resulting in intentional or unintentional destruction, disruption, degradation, or exploitation of data, systems, and networks critical to the safety and maintenance of the airplane.

The existing regulations and guidance material did not anticipate these types of airplane system architectures. Furthermore, 14 CFR regulations and the current system safety assessment policy and techniques do not address potential security vulnerabilities, which could be exploited by unauthorized access to airplane networks, data buses, and servers. Therefore, these special conditions are to ensure that the security (i.e., confidentiality, integrity, and availability) of airplane systems is not compromised by unauthorized wired or wireless electronic connections.

These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

Applicability

As discussed above, these special conditions are applicable to the Model A318, A319, A320 and A321 series airplanes. Should Airbus apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, these special conditions would apply to that model as well.

Conclusion

This action affects only a certain novel or unusual design feature on Airbus Model A318, A319, A320 and A321 series airplanes. It is not a rule of general applicability.

List of Subjects in 14 CFR Part 25

Aircraft, Aviation safety, Reporting and recordkeeping requirements.

Authority Citation

The authority citation for these special conditions is as follows:

Authority:

49 U.S.C. 106(f), 106(g), 40113, 44701, 44702, 44704.

The Special Conditions Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Airbus Model A318, A319, A320 and A321 series airplanes.

1. The applicant must ensure that the airplane electronic systems are protected from access by unauthorized sources external to the airplane, including those possibly caused by maintenance activity.

2. The applicant must ensure that electronic system-security threats are identified and assessed, and that effective electronic system-security protection strategies are implemented to protect the airplane from all adverse impacts on safety, functionality, and continued airworthiness.

3. The applicant must establish appropriate procedures to allow the operator to ensure that continued airworthiness of the aircraft is maintained, including all post-type-certification modifications that may have an impact on the approved electronic system security safeguards.

Issued in Des Moines, Washington, on June 25, 2018. Victor Wicklund, Manager, Transport Standards Branch, Policy and Innovation Division, Aircraft Certification Service.
[FR Doc. 2018-13949 Filed 6-27-18; 8:45 am] BILLING CODE 4910-13-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 25 [Docket No. FAA-2018-0602; Special Conditions No. 25-729-SC] Special Conditions: Airbus Model A318, A319, A320 and A321 Series Airplanes; Electronic System Security Protection From Unauthorized Internal Access AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final special conditions; request for comments.

SUMMARY:

These special conditions are issued for the Airbus Model A318, A319, A320 and A321 series airplanes. These airplanes will have a novel or unusual design feature when compared to the state of technology envisioned in the airworthiness standards for transport category airplanes. This design feature is airplane electronic systems and networks that allow access, from aircraft internal sources (e.g., wireless devices, internet connectivity), to the airplane's previously isolated, internal, electronic components. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

DATES:

This action is effective on Airbus on June 28, 2018. Send comments on or before August 13, 2018.

ADDRESSES:

Send comments identified by Docket No. FAA-2018-0602 using any of the following methods:

Federal eRegulations Portal: Go to http://www.regulations.gov/ and follow the online instructions for sending your comments electronically.

Mail: Send comments to Docket Operations, M-30, U.S. Department of Transportation (DOT), 1200 New Jersey Avenue SE, Room W12-140, West Building Ground Floor, Washington, DC 20590-0001.

Hand Delivery or Courier: Take comments to Docket Operations in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue SE, Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

Fax: Fax comments to Docket Operations at 202-493-2251.

Privacy: The FAA will post all comments it receives, without change, to http://www.regulations.gov/, including any personal information the commenter provides. Using the search function of the docket website, anyone can find and read the electronic form of all comments received into any FAA docket, including the name of the individual sending the comment (or signing the comment for an association, business, labor union, etc.). DOT's complete Privacy Act Statement can be found in the Federal Register published on April 11, 2000 (65 FR 19477-19478).

Docket: Background documents or comments received may be read at http://www.regulations.gov/ at any time. Follow the online instructions for accessing the docket or go to Docket Operations in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue SE, Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

Varun Khanna, Airplane and Flight Crew Interface Section, AIR-671, Transport Standards Branch, Policy and Innovation Division, Aircraft Certification Service, Federal Aviation Administration, 2200 South 216th Street, Des Moines, Washington 98198; telephone and fax 206-231-3159; email [email protected]

SUPPLEMENTARY INFORMATION:

The substance of these special conditions previously has been published in the Federal Register for public comment. These special conditions have been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. Therefore, the FAA has determined that prior public notice and comment are unnecessary, and finds that, for the same reason, good cause exists for adopting these special conditions upon publication in the Federal Register.

Comments Invited

We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.

We will consider all comments we receive by the closing date for comments. We may change these special conditions based on the comments we receive.

Background

On February 2, 2017, Airbus applied for a change to Type Certificate No. A28NM for the installation of electronic network system architecture or Flight Operations and Maintenance Exchanger (FOMAX) equipment in the Model A318, A319, A320 and A321 series airplanes. The Airbus Model A318, A319, A320 and A321 series airplanes are twin-engine, transport category airplanes with a passenger seating capacity of 136 to 230 and a maximum takeoff weight of 123,458 to 213,848 pounds, depending on the specific design.

Type Certification Basis

Under the provisions of title 14, Code of Federal Regulations (14 CFR) 21.101, Airbus must show that the Model A318, A319, A320 and A321 series airplanes as changed, continue to meet the applicable provisions of the regulations listed in Type Certificate No. A28NM or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA.

If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Airbus Model A318, A319, A320 and A321 series airplanes because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16

Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.

In addition to the applicable airworthiness regulations and special conditions, the Airbus Model A318, A319, A320 and A321 series airplanes must comply with the fuel vent and exhaust-emission requirements of 14 CFR part 34, and the noise certification requirements of 14 CFR part 36.

The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.101.

Novel or Unusual Design Features

The Airbus Model A318, A319, A320 and A321 series airplanes will incorporate the following novel or unusual design feature:

The installation and activation of electronic network system architecture or Flight Operations and Maintenance Exchanger (FOMAX) equipment that allows access from internal sources (e.g., wireless devices, internet connectivity) to the airplane's once isolated internal electronic components.

Discussion

The Airbus Model A318, A319, A320 and A321 series airplanes architecture is novel or unusual for commercial transport airplanes because it allows connection to previously isolated data networks connected to systems that perform functions required for the safe operation of the airplane. This data network and design integration may result in security vulnerabilities from intentional or unintentional corruption of data and systems critical to the safety and maintenance of the airplane. The existing regulations and guidance material did not anticipate this type of system architecture or electronic access to aircraft systems. Furthermore, 14 CFR regulations and the current system safety assessment policy and techniques do not address potential security vulnerabilities, which could be exploited by unauthorized access to airplane networks and servers. Therefore, these special conditions are to ensure that the security of airplane systems and networks is not compromised by unauthorized wired or wireless internal access.

These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

Applicability

As discussed above, these special conditions are applicable to the Model A318, A319, A320 and A321 series airplanes. Should Airbus apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, these special conditions would apply to that model as well.

Conclusion

This action affects only a certain novel or unusual design feature on Airbus Model A318, A319, A320 and A321 series airplanes. It is not a rule of general applicability.

List of Subjects in 14 CFR Part 25

Aircraft, Aviation safety, Reporting and recordkeeping requirements.

Authority Citation

The authority citation for these special conditions is as follows:

Authority:

49 U.S.C. 106(f), 106(g), 40113, 44701, 44702, 44704.

The Special Conditions Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Airbus Model A318, A319, A320 and A321 series airplanes.

1. The applicant must ensure that the design provides isolation from, or airplane electronic system security protection against, access by unauthorized sources internal to the airplane. The design must prevent inadvertent and malicious changes to, and all adverse impacts upon, airplane equipment, systems, networks, or other assets required for safe flight and operations.

2. The applicant must establish appropriate procedures to allow the operator to ensure that continued airworthiness of the aircraft is maintained, including all post type certification modifications that may have an impact on the approved electronic system security safeguards.

Issued in Des Moines, Washington, on June 25, 2018. Victor Wicklund, Manager, Transport Standards Branch, Policy and Innovation Division, Aircraft Certification Service.
[FR Doc. 2018-13948 Filed 6-27-18; 8:45 am] BILLING CODE 4910-13-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 97 [Docket No.: FAA-2017-0879] RIN 2120-AA65 Criteria and Process for the Cancellation of Standard Instrument Approach Procedures as Part of the National Procedures Assessment (NPA) AGENCY:

Federal Aviation Administration (FAA), Department of Transportation (DOT).

ACTION:

Statement of policy.

SUMMARY:

The Federal Aviation Administration (FAA) is finalizing specific criteria to guide the identification and selection of appropriate circling procedures that can be considered for cancellation. These procedures include certain circling procedures (to include circling-only instrument approach procedures (IAPs) and circling minima charted on straight-in IAPs). The circling procedures associated with this cancellation initiative will be selected based on the criteria outlined in this statement of policy. This document is not a part of the FAA's VOR minimum operating network (MON) initiative.

DATES:

This statement of policy is effective July 30, 2018.

ADDRESSES:

For information on where to obtain copies of rulemaking documents and other information related to this statement of policy, see “How To Obtain Additional Information” in the SUPPLEMENTARY INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT:

Lonnie Everhart, Aeronautical Information Services, AJV-5, Federal Aviation Administration, Air Traffic Organization, 6500 S. MacArthur Blvd., Oklahoma City, OK 73169; Telephone (405) 954-4576; Email [email protected].

SUPPLEMENTARY INFORMATION:

I. Authority for This Rulemaking

Under 49 U.S.C. 40103(a), the Administrator has broad authority to regulate the safe and efficient use of the navigable airspace. The Administrator is also authorized to issue air traffic rules and regulations to govern the flight, navigation, protection, and identification of aircraft for the protections of persons and property on the ground and for the efficient use of the navigable airspace. 49 U.S.C. 40103(b). Under section 44701(a)(5), the Administrator promotes safe flight of civil aircraft in air commerce by prescribing regulations and minimum standards for other practices, methods, and procedures necessary for safety in air commerce and national security. This action is within the scope of that authority.

SIAPs are promulgated by rulemaking procedures and are incorporated by reference pursuant to 5 U.S.C. 552(a) and 1 CFR part 51 into Title 14 of the Code of Federal Regulations; Part 97 (14 CFR part 97), Subpart C—TERPS Procedures.

II. Background

The National Airspace System (NAS) is currently in transition to a “NextGen NAS.” During this transition, the FAA is managing the technology and procedures to support both the legacy (NavAid-based) NAS as well as the NextGen (satellite-based) NAS. As new technology has facilitated the introduction of area navigation (RNAV) instrument approach procedures over the past decade, the number of procedures available in the NAS has nearly doubled. The complexity and cost to the FAA of maintaining the instrument flight procedures inventory while expanding the new RNAV capability is not sustainable. Managing two versions of the NAS requires excess manpower, infrastructure, and information management which is costly and unsupportable in the long-term. To mitigate these costs, the FAA has a number of efforts underway to effectively transition from the legacy to the NextGen NAS. One area of focus for this transition is instrument flight procedures (IFPs). The FAA seeks to ensure an effective transition from ground-based IFPs to greater availability and use of satellite-based IFPs while maintaining NAS safety.

In early 2015, the FAA requested the RTCA's Tactical Operations Committee (TOC) 1 with providing recommendations on criteria and processes for cancelling instrument flight procedures. Among the many recommendations provided by the TOC were criteria to identify circling procedures that would qualify as candidates for cancellation. As of March 29, 2018, there are 12,068 IAPs in publication, consisting of 33,825 lines of minima, 11,701 of which are circling lines of minima. This represents a nearly 9 percent increase in IAP lines of minima from September 18, 2014. Circling procedures account for approximately one-third of all lines of minima for IAPs in the NAS.

1 The TOC is a subcommittee comprised of FAA and industry representatives established under the RTCA advisory committee in accordance with the provisions of the Federal Advisory Committee Act (FACA).

In response to the unsustainable growth in the number of IFPs, the FAA requested feedback and recommendations from the RTCA TOC related to removing underutilized or unneeded IFPs to facilitate a transition to NextGen and reduce FAA maintenance costs related to IFPs. The task group assigned to study IFP reduction adopted the following guiding principles when considering their recommendations:

• Utilization was determined not to be a valid stand-alone criterion, as usage data can be inaccurate or unavailable in some cases and does not necessarily reflect the operational value of an IFP.

• Effort was focused on a NAS-level examination of public procedures maintained by the FAA. Additionally, specific criteria for special operating conditions, such as those in Alaska, where additional considerations may be required, should be developed apart from this effort.

• The FAA procedure reduction program is highly dependent upon and interwoven with other efforts such as VOR Minimum Operating Network (MON), the Performance Based Navigation (PBN) NAS Navigation Strategy effort and the ongoing rewrite of the Regional Airspace Procedures Team (RAPT) Order, and these efforts need to be synchronized as each effort progresses.

• Airways were deemed to be beyond the focus of this group's effort.

• When evaluating any procedure, air traffic personnel and operators should be involved.

Proposed Criteria

In its continued effort to right-size the NAS through optimization and elimination of redundant and unnecessary IAPs, on October 6, 2017, the FAA published a proposed policy and request for comment that identified the following criteria to guide the identification and selection of appropriate circling procedures to be considered for cancellation. 82 FR 46738.

The FAA proposed that all circling procedures will continue to be reviewed through the established IAP periodic review process.2 As part of that review process, the FAA proposed that each circling procedure be evaluated against the following questions:

2 Section 2-8 of FAA Order 8260.19 (Flight Procedures and Airspace) sets forth the minimum frequency of review of instrument procedures.

• Is this procedure a designated MON airport procedure?

• If multiple IAPs serve a single runway end, is this the lowest circling minima for that runway?

Note:

If the RNAV circling minima is not the lowest, but is within 50' of the lowest, the FAA would give the RNAV preference.

• Would cancellation result in removal of circling minima from all conventional NAVAID procedures at an airport?

Note:

If circling minima exists for multiple Conventional NAVAID procedures, preference would be to retain ILS circling minima.

• Would cancellation result in all circling minima being removed from all airports within 20 NM?

• Will removal eliminate lowest landing minima to an individual runway?

The following questions are applicable only to circling-only procedures:

• Does this circling-only procedure exist because of high terrain or an obstacle that makes a straight-in procedure unfeasible or which would result in the straight-in minimums being higher than the circling minima?

• Is this circling-only procedure (1) at an airport where not all runway ends have a straight-in IAP, and (2) does it have a Final Approach Course not aligned within 45 degrees of a runway which has a straight-in IAP?

The FAA proposed that further consideration for cancellation under this policy would be terminated if any of the aforementioned questions are answered in the affirmative. If all questions are answered in the negative, the procedure would be processed as described in the following paragraph.

When a candidate has been identified, Aeronautical Information Services would send a notification of procedure cancellation memorandum and completed checklist to the appropriate Regional Service Area, Operations Support Group.3 The Regional Service Area, Operations Support Group would follow the same notification process used for standard IFP requests.4 Consistent with FAA procedures outlined in the procedure cancellation memorandum, comments regarding the aforementioned circling procedure would need to be submitted within 30 days of the timestamp on the communication media through which it was delivered. Comments would be directed to the Regional Service Area, Operations Support Group for dissemination to Aeronautical Information Services. Comments would be adjudicated by Aeronautical Information Services within 30 days of the timestamp on the communication media through which it was received. A final decision would be forwarded to Regional Service Area, Operations Support Group to disseminate to commenter(s). The cancellation of the part 97 instrument procedure will be published in the Federal Register.

3 The FAA has placed sample copies of the memorandum and checklist into the docket for this document.

4 FAA Order 8260.43 (Flight Procedures Management Program) and FAA Order 8260.26 (Establishing Submission Cutoff Dates for Civil Instrument Procedures) contain additional information on this process. These orders are available on the FAA website.

In its proposed policy, the FAA noted that National Procedures Assessment (NPA) Instrument Flight Procedure (IFP) cancellation activities and associated criteria do not supersede similar activities being performed under the FAA's VOR MON Program. See 81 FR 48694 (July 26, 2016). However, NPA IFP cancellation activities have been coordinated with the FAA office responsible for the VOR MON implementation program, and its input has been thoroughly considered.

III. Discussion of Comments Received

The FAA received 11 comments pertaining to the proposed statement of policy. Commenters included the Aircraft Owners and Pilots Association (AOPA), National Business Aviation Association (NBAA), and nine individuals.

AOPA suggested adding language to the proposed policy to point out the cancellation criteria's consideration of circling procedures being required for pilot training and testing. AOPA expressed concern that flight procedures critical to part 142 training centers could be cancelled without the awareness of these training centers, and requested coordination with the National Simulator Program (and simulator operators) before any IFPs are cancelled to prevent adversely hindering simulator training and testing. AOPA also requested the FAA implement outreach recommendations made in the March 2016 RTCA NPA Report “Process and Criteria for Cancellation of Instrument Flight Procedures” 5 to ensure users and air traffic control are able to provide input prior to IFP cancellation decisions being made.

5 A copy of this report has been placed in the docket for this action.

Language has been added to one of the questions used to evaluate each circling procedure expressing awareness of the need to retain sufficient circling procedures to allow for instrument flight proficiency and training. That criterion now states, “Would cancellation result in all circling minima being removed from all airports within 20 NM?” This particular criteria recognizes the circling-related content of the Instrument Rating—Airplane Airman Certification Standards (ACS). Once a circling procedure is proposed for cancellation, it will be posted on the Instrument Flight Procedures Information Gateway (https://www.faa.gov/air_traffic/flight_info/aeronav/procedures/). This information will be provided to the National Simulator Program, Air Traffic Services, and the Operations Support Groups. This notification will enable them to maintain awareness of IFP-related actions, including proposed cancellations for circling procedures, and communicate this site's availability to their stakeholders for their awareness. Additionally, language has been added to the statement of policy that informs users how to access the FAA's Instrument Flight Procedures Information Gateway (IFP Gateway), through which they can be notified when there are proposed actions to instrument flight procedures at airports of their choosing. Users will be able to submit comments pertaining to proposed circling flight procedure cancellations, and each comment will be taken into consideration before a final determination is made.

NBAA requested the proposed policy be temporarily suspended while Flight Management Systems (FMS) issues that resulted in a number of IFPs being inadvertently eliminated from FMS IFP databases could be evaluated and considered with respect to the proposed policy.

The inadvertent removal of IFPs from certain FMS was unrelated to any action by the FAA with regard to IFP process. The NBAA's suggestion that the effective date of this policy be temporarily suspended or delayed while these FMS issues are addressed is not practical considering these criteria have been discussed, vetted via the RTCA TOC, in which NBAA has been a participant, and finally published in the 2016 RTCA Final NPA Report. Additionally, any circling procedure cancellations that result from implementation of this policy should not impact the probability of future FMS issues as mentioned in the NBAA's comment.

One commenter expressed approval of the cancellation of a circling procedure only if all runways accessible by the procedure have a straight-in IAP with lower minimums than those associated with the cancelled procedure. The individual also expressed the need for some circling procedures to remain in the NAS given the tasks and maneuvers of the Instrument Rating—Airplane Airman Certification Standards (ACS).

The FAA's policy is not intended to ensure straight-in IAPs for every runway end, but rather minimizing IFP redundancy in the NAS. The FAA acknowledges that with the cancellation of some circling procedures, there may be reduced airport accessibility, but no reduction in runway availability. To the extent that the commenter expressed concern over the ACS, the criteria the FAA is finalizing takes into account circling procedures in the ACS. The fourth criteria, which asks whether cancellation will result in all circling minima being removed from all airports within 20 NMs, should ensure that there are sufficient circling procedures for pilot training and testing.

One individual expressed concern that economic, environmental and air traffic management impacts of removing the circling approaches needs to be considered in this policy. The individual also recommended that IFR use over the last several years be evaluated and included as part of the policy.

The FAA has invested significant resources in the infrastructure of the NAS pertaining to IFPs, and a significant portion of those resources have resulted in an increased number of NextGen IFPs. Because of this, the IFP inventory is at an unsustainable level given the current and projected resources needed to maintain IFPs. Also, the criteria outlined in the proposed policy is a result of a collaborative effort between the FAA and aviation industry stakeholders to accomplish a reduction in the number of circling procedures while considering the very concerns expressed by the individual. One of the guiding principles adopted by the TOC Task Group in considering their recommendations for this effort was that IFP utilization was determined not to be a valid stand-alone criterion, as usage data can be inaccurate or unavailable in some cases and does not necessarily reflect the operational value of an IFP. The proposed criteria are only a foundation for identifying procedures for cancellation and is not sole justification for any IFP being cancelled. Once a procedure is identified and proposed for cancellation, and that proposal is posted on the IFP Gateway, stakeholders will have the opportunity to present their justification for retaining that procedure, and each justification will be considered and adjudicated before a determination is made to either retain or cancel that procedure.

One individual stated that the proposed policy does not account for convenience and efficiency, and provided an example of the VOR-A at MOTON FIELD MUNI (K06A). The individual also asked the FAA to add the following to the criteria:

• Does circling allow the pilot to access runways not served by other IAPs?

• Does the existing approach allow the pilot to approach the field and/or access the runway more directly than the alternative straight in approaches?

• Are sufficient alternatives available so that the removal of this circling approach will not force pilots to fly significantly further to access each runway when considering all possible arrival sectors and winds?

• Would removing this circling approach cause harm by forcing pilots to fly further to access straight in approaches?

As stated previously, the proposed policy could minimally impact accessibility to some airports, but the current inventory of IFPs is not sustainable. The proposed policy is intended to minimize IFP redundancy currently present in the NAS, and convenience and efficiency could be impacted at some airports. However, convenience and efficiency have also been significantly enhanced at numerous airports with the implementation of NextGen IFPs, so the commenter's assertion would need to be considered for each specific IFP and each airport with consideration given to the IFP enhancements made at that airport over the last several years. As noted, the public will have an opportunity to provide comment on a proposed cancellation of a specific IFP prior to its cancellation.

The K06A VOR-A is a good example of the IFP redundancy that currently exists within the NAS, as it highlights the investment of resources in NextGen IFPs. At this particular airport, K06A, two RNAV (GPS) IAPs have been installed—one for each runway end. Both of the NextGen approaches have circling minima as good as or better than the minima offered by the VOR-A. Additionally, both of the NextGen IAPs have straight-in minima substantially better than the circling minima offered by the VOR-A, and yet the commenter points out that the VOR-A is useful because the NextGen IAPs add significant distance (time and fuel) to “shoot those approaches from the north or south.” The FAA notes that NextGen IAPs can also be used to approach from a particular direction, east in the commenter's comment, then circle to land on the appropriate runway if needed. Additionally, straight-in approaches with circling minima are viable IAPs for circling to other runways at that airport in accordance with any circling restrictions noted on the associated IAP.

Regarding the additional questions the commenter recommended adding to the criteria, the first criterion request is unnecessary as the FAA's proposed criteria prevents the cancellation of all circling procedures at an airport, so runways currently accessible via circling will remain accessible. For the other 3 criteria recommendations from the commenter, all users will be able to provide justification for objecting to the cancellation of specific circling procedures once a particular circling procedure has been proposed for cancellation and publicized on the IFP Gateway, and those objections will be adjudicated on their own merits. Additionally, the commenter's terms “more directly”, “significantly further”, and “cause harm” are both subjective and ambiguous, and do not provide measurable elements with which to determine a specific procedure's necessity and/or value.

One individual expressed their approval of the proposed policy and expressed their opinion, based upon their stated aviation experience, that circle-to-land maneuvers are dangerous as they can lead to task saturation. The commenter also supported the proposed criteria that ensures at least one circling procedure remains at airports that currently have a circling procedure.

The FAA appreciates the commenter's support of this initiative, but also recognizes the need and purpose for circling procedures in the NAS. While circling maneuvers may involve unique requirement for aviators and air traffic control specialists, it is something that is accounted for in training requirements and, as such, is not considered dangerous. The FAA recognizes that unique situations and conditions could warrant a circling approach, and the design criteria for circling approaches reflects that.

One individual expressed concern regarding their inability to utilize RNAV (GPS) IFPs due to their lack of ADS-B equipage at this time, and the only non-NextGen IAP at their home airport, CLARENCE E. PAGE MUNI (KRCE), is the VOR-B.

The FAA notes that this particular approach would not be considered for cancellation as part of this policy due to it not meeting the criteria that states, “Would cancellation result in removal of circling minima from all conventional NAVAID procedures at an airport?” Because the cancellation of the KRCE VOR-B would result in the cancellation of circling minima from all conventional NAVAID procedures at KRCE, it would not be considered for cancellation as part of this policy.

One individual expressed concerns pertaining to the safety critical nature of circling minima for piston aircraft due to the ability to remain in closer proximity to an airport than when using “direct RNAV approaches,” and cited “deteriorating weather, possible icing, and thunder storm conditions” as justification for retention of circling minima. The individual's assertions lack sufficient details and specifics for the FAA to provide an informed response. Accounting for every possible situation and condition of flight with flight procedures is not practical. Both circling maneuvers and straight-in maneuvers are evaluated using the same criteria and one is not safer than the other is. Access to airports is a separate issue and should be raised to the airport owner/operator and Air Traffic Control through comments submitted after notification of a candidate procedure for cancellation under this program.

One individual requested the following criteria to assure that the FAA maintains or improves the access to the airport, stating that access to a candidate location should never be reduced in the interest of process efficiency:

• Availability of SBAS approach procedure to the intended landing runway in lieu of the circle approach to provide direct access to that runway • If SBAS and ground based navigation is available at that facility the circling minima for the ground based approach should be retained to allow facility access in the event that GPS availability is degraded or not available

As previously stated, this IFP reduction effort could impact access at some airports, but the criteria in this policy are in agreement with the PBN NAS Navigation Strategy effort. The addition of NextGen IFPs at airports across the country has substantially improved access at numerous airports, which significantly offsets and frequently outweighs claims of circling procedure cancellations resulting in reduced access to airports. The transition to a predominantly NextGen NAS requires a reduction in ground-based IFPs and infrastructure as outlined in the VOR MON Final Policy Statement published in the Federal Register July 26, 2016. VOR MON policy specifically states, “The MON will enable pilots to revert from Performance Based Navigation (PBN) to conventional navigation for approach, terminal and en route operations in the event of a GPS outage and supports the NAS transition from VOR-based routes to a more efficient PBN structure consistent with NextGen goals and the NAS Efficient Streamlined Services Initiative.” In accordance with VOR MON, NextGen, NAS Efficient Streamlined Services Initiative, and PBN NAS Navigation Strategy, conventional navigation services for approach, terminal and en route operations will be minimized in a strategic manner consistent with these initiatives.

One individual recommended additional criteria to take into consideration nearby “high volume airports” when considering the cancellation of circling procedures, and the example of using the ILS OR LOC RWY 16 to circle to land RWY 34 at CHICAGO EXECUTIVE (KPWK), and its “close proximity to CHICAGO OHARE INTL (KORD)” as an example. The criteria requested by the individual states, “Would the potential cancelling of the circling minimums involve an airport that is in close proximity to a high volume airport, impact safety, procedures or encounter delays?”

In the commenter's example, the ILS OR LOC RWY 16 at KPWK would retain its circling minima in accordance with the FAA's proposed policy's criteria, “Would cancellation result in removal of circling minima from all conventional NAVAID procedures at an airport? Note: If circling minima exists for multiple Conventional NAVAID procedures, preference would be to retain ILS circling minima.”

Regarding the criteria proposed by the individual, circling procedures are being reviewed at every U.S. airport that has instrument approach procedures. ATC's involvement via notification from the Operations Support Group (Flight Procedures Team) will allow them ample opportunity to prevent the cancellation of circling procedures they deem necessary to their operations, and public notification, via the IFP Gateway, will allow the public ample opportunity to communicate concerns regarding the proposed cancellation of any circling procedure.

IV. Statement of Policy

Based on the comments received, the FAA is finalizing the following policy regarding the criteria and process for the cancellation of standard instrument approach procedures as Part of the national procedures assessment as follows:

All circling procedures will continue to be reviewed through the established IAP periodic review process.6 As part of that review process, each circling procedure will be evaluated against the following questions:

6 Section 2-8 of FAA Order 8260.19 (Flight Procedures and Airspace) sets forth the minimum frequency of review of instrument procedures.

• Is this the only IAP at the airport?

• Is this procedure a designated MON airport procedure?

• If multiple IAPs serve a single runway end, does this procedure provide the lowest circling minima for that runway? 7 Note: If the RNAV circling minima is not the lowest, but is within 50′ of the lowest, the FAA would give the RNAV preference.

7 This criterion has been slightly reworded for clarity.

• Would cancellation result in removal of circling minima from all conventional NAVAID procedures at an airport? Note: If circling minima exists for multiple Conventional NAVAID procedures, preference would be to retain ILS circling minima.

• Would cancellation result in all circling minima being removed from all airports within 20 NMs? This particular criterion recognizes the circling content of the Instrument Rating—Airplane Airman Certification Standards (ACS).

• Will removal eliminate lowest landing minima to an individual runway?

The following questions are applicable only to circling-only procedures:

• Does this circling-only procedure exist because of high terrain or an obstacle which makes a straight-in procedure infeasible or which would result in the straight-in minimums being higher than the circling minima?

• Is this circling-only procedure (1) at an airport where not all runway ends have a straight-in IAP, and (2) does it have a Final Approach Course not aligned within 45 degrees of a runway which has a straight-in IAP?

Further consideration for cancellation under this policy will be terminated if any of the aforementioned questions are answered in the affirmative. If all questions are answered in the negative, the procedure will be processed as described in the following paragraph.

When a candidate has been identified for cancellation, Aeronautical Information Services will post the proposed cancellation on the Instrument Flight Procedures Information Gateway (IFP Gateway) (https://www.faa.gov/air_traffic/flight_info/aeronav/procedures/) and send a notification of procedure cancellation memorandum and completed checklist (see attached NPA Checklist Sample) to the appropriate Regional Service Area, Operations Support Group.8 The Regional Service Area, Operations Support Group will follow the same notification process used for standard IFP requests. 9 Comments regarding the aforementioned circling procedure should be submitted via email to: [email protected]. Comments will only be considered and adjudicated when submitted prior to the comment deadline associated with the flight procedure as listed on the IFP Coordination tab of the Instrument Flight Procedures Information Gateway site. Aeronautical Information Services will adjudicate and respond to each comment within 30 days of being received. When a determination is made to cancel a part 97 instrument flight procedure or circling line of minima, the cancellation will be published in the Federal Register.

8 The FAA has placed sample copies of the memorandum and checklist into the docket for this document.

9 FAA Order 8260.43 (Flight Procedures Management Program) and FAA Order 8260.26 (Establishing Submission Cutoff Dates for Civil Instrument Procedures) contain additional information on this process. These orders are available on the FAA website.

Issued in Oklahoma City, Oklahoma, on June 21, 2018. Gary Powell, Director, Aeronautical Information Services.
[FR Doc. 2018-13875 Filed 6-27-18; 8:45 am] BILLING CODE 4910-13-P
SECURITIES AND EXCHANGE COMMISSION 17 CFR Part 200 [Release Nos. 34-83506; FOIA-193; File No. S7-09-17] RIN 3235-AM25 Amendments to the Commission's Freedom of Information Act Regulations AGENCY:

Securities and Exchange Commission.

ACTION:

Final rule.

SUMMARY:

The Securities and Exchange Commission (“Commission” or “SEC”) is adopting amendments to the Commission's regulations under the Freedom of Information Act (“FOIA”). The Commission is amending the FOIA regulations to reflect changes required by the FOIA Improvement Act of 2016 (“Improvement Act”) and to clarify, update, and streamline the regulations.

DATES:

Effective July 30, 2018.

FOR FURTHER INFORMATION CONTACT:

Mark Tallarico, Senior Counsel, Office of the General Counsel, (202) 551-5132; Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-5041.

SUPPLEMENTARY INFORMATION: I. Introduction

On December 21, 2017, the Commission proposed amendments to its existing regulations under the FOIA, 5 U.S.C. 552,1 to reflect changes required by the Improvement Act and to clarify, update, and streamline the language of several procedural provisions. The Commission received four comment letters on the proposed amendments. After consideration of the comments received, the Commission is adopting the amendments to its FOIA regulations as proposed, other than changes to two definitions related to the collection of fees and a few technical modifications for clarity. Due to the scope of the amendments, this final rule replaces the Commission's existing FOIA regulations in their entirety (17 CFR 200.80 through 200.80f).

1See Release No. 34-82373 (Dec. 21, 2017), 83 FR 291 (Jan. 3, 2018) (“Proposing Release”).

II. Final Amendments A. Changes To Conform to the Improvement Act

The Commission is adopting four changes to the Commission's FOIA regulations to conform them to the Improvement Act. These changes are being adopted largely as proposed.2 First, the final rule revises Section 200.80(a) to provide that records the FOIA requires to be made available for public inspection will be available in electronic format on the Commission's website, http://www.sec.gov. Second, the final rule revises Section 200.80(c) to provide that a request for records may be denied to the extent the exemptions in 5 U.S.C. 552(b) apply to the requested records and Commission staff reasonably foresees that disclosure would harm an interest protected by the applicable exemption, the disclosure of the requested records is prohibited by law, or the requested records are otherwise exempted from disclosure under 5 U.S.C. 552(b)(3). Third, the final rule revises the regulations to state that FOIA requesters may seek assistance from the Office of FOIA Services' FOIA Public Liaisons (Sections 200.80(b), (d), and (e)) and to advise FOIA requesters of their right to seek dispute resolution services offered by the Office of Government Information Services in the case of a denied request (Section 200.80(e)). Fourth, the final rule incorporates the amendments to the FOIA requiring agencies, if they do not comply with the time limits, to waive fees, under certain circumstances (Section 200.80(g)).

2 The Commission is making one technical, clarifying modification from the proposal. Specifically, in the first sentence of Section 200.80(a)(2)(ii), the word “Those” is changed to “Persons.”

B. Amendments to Certain Procedural Provisions

The final amendments also revise certain procedural provisions. Those changes clarify, update, and streamline the Commission's regulations, and most of the changes make the regulations consistent with existing practices. These changes are being largely adopted as proposed.3 The amended regulations, among other things, update the various methods for submitting FOIA requests and administrative appeals (Sections 200.80(b) and (f)); incorporate language requiring requesters to include their full names and return addresses in their FOIA requests (Section 200.80(b)); describe certain information that is required when submitting requests for records about oneself or another individual (Section 200.80(b)); explain the situations in which the Office of FOIA Services staff will work with other Federal agencies that have an interest in agency records that may be responsive to a request (Section 200.80(c)); incorporate language that allows the Office of FOIA Services to seek a one-time clarification of an ambiguous request and toll the time period for responding to the request until the requester clarifies the request (Section 200.80(d)); clarify when the 20-day statutory time limit for responding to requests begins (i.e., when requests are received by the Office of FOIA Services and when requests are modified so that they reasonably describe the records sought) (Section 200.80(d)); clarify the Office of FOIA Services' system for multitrack processing of requests (Section 200.80(d)); and insert a provision to enable the Office of FOIA Services to aggregate requests involving related matters where it appears that multiple requests together constitute a single request that would involve unusual circumstances (Section 200.80(d)).

3 The Commission is making one technical, clarifying modification from the proposal. Specifically, the third sentence of Section 200-.80(f)(3), is changed from “Appeals should include a statement of the requester's arguments as to why the records requested should be made available and why the adverse determination was in error” to “Appeals should include a statement of the requester's arguments as to why the records requested should be made available and the reason(s) the FOIA requester contends the adverse determination was in error.”

The final rule also clarifies, consistent with existing practice, that the Office of FOIA Services will close requests if requesters do not take certain steps within set time periods. For example, requesters must respond to the Office of FOIA Services' one-time clarification request within 30 calendar days (Section 200.80(d)); agree to pay anticipated fees within 30 calendar days of the Office of FOIA Services' fee estimate (Section 200.80(g)); and, when required to do so, make an advance payment within 30 calendar days of the Office of FOIA Services' fee notice (Section 200.80(g)).

C. Revisions to Fee Provisions

Section 200.80(g) of the final rule revises the Office of FOIA Services' fee procedures and fee schedule in two ways. Both of these changes are being adopted as proposed. First, the final rule allows the Office of FOIA Services to collect fees before sending records to a requester instead of seeking payment when the records are sent (Section 200.80(g)(1)). Second, the final rule removes the set duplication fee of 24 cents per page and instead refers requesters to the FOIA fee page on the Commission's website, where the current fee will be posted (Section 200.80(g)(3)(v)).4 The duplication fee posted on the website will reflect the direct costs of photocopying or producing a printout, taking into account various factors including the salary of the employee(s) performing the work and the cost of materials. The duplication fee posted on the Commission's website will be adjusted as appropriate to reflect current costs. Eliminating the set duplication fee will allow the Office of FOIA Services to align its photocopying and printout fees with the actual costs of duplicating records for production to requesters (in paper format) without having to amend the regulations.

4 The initial posted fee will be 15 cents per page, and the Commission is already charging this lower cost.

As proposed, the final rule also codifies several existing practices. For example, it states that fees for duplicating records onto electronic medium (including the costs associated with scanning materials, where applicable) will be the direct costs of duplicating records for requesters (Section 200.80(g)(3)(v)); clarifies that the Office of FOIA Services will not process any requests once it determines that a fee may be charged unless the requester commits to pay any estimated fees (Section 200.80(g)(5)(ii)); clarifies the direct costs that can be charged by the Office of FOIA Services as part of search, review, and duplication fees (Section 200.80(g)(3)); and sets forth the various methods by which FOIA processing fees can be paid (Section 200.80(g)(1)).

The final rule also revises existing fee-related definitions and incorporates new fee-related definitions (Section 200.80(g)(2)). As discussed below, some of these definitions have been slightly revised in the final rule in response to comments received on the proposed rule.5

5 The Commission is also making several technical, clarifying modifications from the proposal in the fee provisions. In the first sentence of Section 200.80(g)(3), the phrase “shall charge the fees summarized in chart form . . .” is changed to “shall charge fees for the services summarized in chart form . . .” to more accurately describe the chart. In the first sentence of Section 200.80(g)(3)(ii)(B), the phrase “ to locate records” is changed to “to locate or identify responsive records” so as to more precisely describe the search. In Section 200.80(g)(12)(ii), the phrase “shall consider all four of the following factors” is changed to “shall consider each of the following four factors.”

D. Elimination of Certain Provisions

As proposed, the final rule eliminates certain provisions in the Commission's current FOIA regulations that repeat information contained in the FOIA statute and do not need to be in the Commission's regulations. Among the provisions that the Commission is removing are: (1) The list of information the FOIA requires the Commission to publish in the Federal Register (Section 200.80(a)(1) of the superseded regulations), (2) the categories of records the FOIA requires the Commission to make available for public inspection (Section 200.80(a)(2) of the superseded regulations), and (3) the nine categories of records that are exempt from disclosure under 5 U.S.C. 552(b) (Section 200.80(b) of the superseded regulations). Finally, the final rule eliminates Appendices A through F from the existing FOIA regulations. Appendices A through D and F of the existing regulations provide general information that is available on the Commission's website to the extent it is relevant to the public. The information in Appendix E of the existing regulations is revised and updated and moved to Section 200.80(g) (Fees) of the final rule.

E. Structure of the Final Rule

The structure of the regulations is amended accordingly: Section 200.80(a) (General provisions); Section 200.80(b) (Requirements for making requests); Section 200.80(c) (Processing requests); Section 200.80(d) (Time limits and expedited processing); Section 200.80(e) (Responses to requests); Section 200.80(f) (Administrative appeals); and Section 200.80(g) (Fees).

III. Public Comments

The Commission received four comment letters in response to the proposed rulemaking. Two of the comments concern definitions in the fee provisions of the proposed rule and suggest substantive changes to the Commission's proposed fee definitions.6 One comment suggests technical clarifications to some of the Commission's FOIA procedures.7 The final letter supports certain provisions in the proposed rule.8 The Commission has considered the comments received and, as discussed below, in certain cases has made modifications in the final amendments in response to those comments.

6See letter from Ryan P. Mulvey, Counsel, Cause of Action Institute, dated January 3, 2018 (“CoA Institute letter”); letter from Keith P. Bishop, dated January 12, 2018 (“Bishop letter”)

7See letter from Rachel Wood, dated April 27, 2018.

8See letter from Lori Gayle Nuckolls, dated January 22, 2018.

In proposing the definitions in the fee provisions of the proposed rule, the Commission considered the FOIA's directive that agencies “promulgate regulations . . . specifying the schedule of fees applicable to the processing of requests . . . [and that] [s]uch schedule shall conform to the guidelines which shall be promulgated . . . by the Director of the Office of Management and Budget [(“OMB”)].” 9 In light of this directive, the Commission looked to the definitions in the OMB's 1987 FOIA fee guidelines except to the extent that courts have held that the definitions are not consistent with the FOIA.10

9 5 U.S.C. 552(a)(4)(A)(i).

10 Uniform Freedom of Information Act Fee Schedule and Guidelines, 52 FR at 10,018 (March 27, 1987).

A. Section 200.80(g)(2)(iv) (Definition of Educational Institution)

One commenter expressed concern that the Commission's definition of “educational institution” in proposed Section 200.80(g)(2)(iv) is inconsistent with the FOIA provision that addresses fees that agencies can charge when “records are not sought for commercial use and the request is made by an educational or noncommercial scientific institution, whose purpose is scholarly or scientific research.” 11 The commenter stated that the Commission's proposed definition of “educational institution” “deviates from the statute in two respects”—the definition “omits reference to `scientific research' ” and it “requires that the purpose of the request be `to further scholarly research' whereas the statute requires only that the educational institution have a purpose of scholarly or scientific research.” 12

11See Bishop letter (quoting 5 U.S.C. 552(a)(4)(A)(ii)(II)).

12See Bishop letter.

The FOIA does not define the term “educational institution.” The Commission's proposed definition of “educational institution” did not include a reference to “scientific research” because in promulgating its fee guidelines, the OMB found that “the statute and the legislative history recite the formula `educational or scientific institution/scholarly or scientific research,' and it seems clear that the phrase was meant to be read disjunctively so that scholarly applies to educational institution and scientific applies to non-commercial scientific institution.” 13 In addition, “scholarly research” is a broad term that would generally include “scientific research.” Accordingly, the Commission does not believe it is necessary to include “scientific research” as part of its definition of “educational institution.”

13 52 FR at 10,014.

In response to the commenter's suggestion to remove from the definition of “educational institution” the requirement that the records are sought to “further scholarly research,” the Commission is deleting this language from the definition and is inserting language to clarify that the requester must show that the request is made in connection with the requester's role at the educational institution and that the records are not sought for commercial or personal use. The definition of “educational institution” in the final rule at § 200.80(g)(2)(iv) is thus revised to read:

Educational institution is any school that operates a program of scholarly research. A requester in this fee category must show that the request is made in connection with the requester's role at the educational institution and that the records are not sought for commercial or personal use.

B. Section 200.80(g)(2)(v) (Definition of Noncommercial Scientific Institution)

One commenter expressed concern that the Commission's proposed definition of “noncommercial scientific institution” in proposed § 200.80(g)(2)(v) is inconsistent with the FOIA “because it imposes additional limitations and conditions not found in the statutory definition.” 14 This commenter stated that the FOIA, unlike the proposed rule, “does not require (i) that the institution be operated solely for the purpose of conducting scientific research, or (ii) that the request is being made under the auspices of a qualifying institution.” 15

14See Bishop letter.

15Id.

The Commission believes that its proposed definition of “noncommercial scientific institution” is consistent with the FOIA. The FOIA does not define the term “noncommercial scientific institution” and the Commission has adopted the definition from the OMB's FOIA fee guidelines. Those guidelines provide that the “term `non-commercial scientific institution' refers to an institution that is not operated on a `commercial' basis . . . and which is operated solely for the purpose of conducting scientific research the results of which are not intended to promote any particular product or industry.” 16 The OMB guidelines further state that “[t]o be eligible for inclusion [in the noncommercial scientific institution] category, requesters must show that the request is being made as authorized by and under the auspices of a qualifying institution and that the records are not sought for a commercial use, but are sought in furtherance of . . . scientific . . . research.” 17 Accordingly, the Commission is adopting the proposed definition of “noncommercial scientific institution” in Section 200.80(g)(2)(v) of the final rule without change.

16 52 FR at 10,018.

17 52 FR at 10,019.

C. Section 200.80(g)(2)(vi) (Definition of Representative of the News Media or News Media Requester)

Two commenters expressed concern that the Commission's proposed definition of “representative of the news media” or “news media requester” is inconsistent with the statutory definition.18 Both commenters noted that the statutory definition does not require a “news media requester” to be “organized and operated to publish or broadcast news to the public.” 19 One of the commenters specifically recommended striking the “organized and operated” standard from the definition.20 In response to these comments, the Commission has omitted the “organized and operated” language in the final rule.

18See Bishop letter; CoA Institute letter.

19Id.

20See CoA Institute letter.

One commenter addressed three additional considerations related to the Commission's proposed definition of “news media requester.” 21 This commenter first recommended further revising the proposed definition of “news media requester” by deleting the last sentence of the proposed definition (“The Office of FOIA Services will determine whether to grant a requester news media status on a case-by-case basis based upon the requester's intended use of the requested material.”) because “the statute's focus [is] on requesters, rather than [their] requests.” 22 In response to this recommendation, the Commission has removed the final sentence from the definition of “news media requester” in the final rule.

21Id.

22Id. (citing Cause of Action v. Federal Trade Commission 799 F.3d 1108, 1121 (DC Cir. 2015)).

This commenter also recommended that the Commission recognize that a news media requester may use “editorial skills” to turn “raw materials into a distinct work” when writing documents such as press releases and editorial comments, as the U.S. Court of Appeals for the District of Columbia stated in Cause of Action v. Federal Trade Commission.23 The commenter did not recommend any changes to the rule to address this issue, and the Commission believes none are necessary.24 The Commission, as appropriate, will consider Cause of Action and any other relevant precedents in applying the fee provisions in its regulations.

23Id. (citing Cause of Action, 799 F.3d at 1122-25).

24Id.

Finally, this commenter recommended that the Commission “should indicate [in its definition of “news media requester”] that any examples of news media entities it may include in its regulations are non-exhaustive.” 25 The Commission is not making any changes in response to this comment because the definition in the final rule does not contain any examples of news media entities.

25Id.

IV. Other Matters

If any of the provisions of these amendments, or the application thereof to any person or circumstance, is held to be invalid, such invalidity shall not affect other provisions or application of such provisions to other persons or circumstances that can be given effect without the invalid provision or application.

V. Economic Analysis

The Commission is sensitive to the economic effects, including the costs and benefits, that result from its rules. Section 23(a)(2) of the Securities Exchange Act of 1934 (“Exchange Act”) requires the Commission, in making rules pursuant to any provision of the Exchange Act, to consider among other matters the impact any such rule would have on competition and prohibits any rule that would impose a burden on competition that is not necessary or appropriate in furtherance of the purposes of the Exchange Act.26 Further, Section 3(f) of the Exchange Act requires the Commission, when engaging in rulemaking where it is required to consider or determine whether an action is necessary or appropriate in the public interest, to consider, in addition to the protection of investors, whether the action will promote efficiency, competition, and capital formation.27

26 15 U.S.C. 78w(a).

27 15 U.S.C. 78c(f).

As explained in the proposal and discussed further below, the Commission believes that the economic effects of the final rule will be limited. The Commission notes that, where possible, it has attempted to quantify the costs, benefits, and effects on efficiency, competition, and capital formation expected to result from the proposed amendments. In some cases, however, the Commission is unable to quantify the economic effects because it lacks the information necessary to provide a reasonable estimate. Additionally, some of the potential benefits of the amendments are inherently difficult to quantify.

The amendments to the Commission's FOIA regulations fall into four categories. First, as discussed in more detail above, the Commission is amending its regulations to conform the regulations to the Improvement Act. Consistent with the Improvement Act, the amended rule provides: (1) Records required to be made available pursuant to the FOIA will be made available in electronic format; (2) records will be withheld under the exemptions in 5 U.S.C. 552(b) only if Commission staff reasonably foresees that disclosure would harm an interest protected by the applicable exemption or disclosure is prohibited by law; (3) FOIA requesters may seek assistance from the Office of FOIA Services' FOIA Public Liaisons and will be advised that they have the right to seek dispute resolution services from the Office of Government Information Services if their request is denied; and (4) the Office of FOIA Services is required to waive fees, in certain circumstances, if it does not comply with the time limits under the FOIA. The Commission believes that these changes will have minimal impact on FOIA requesters because they largely codify the Commission's existing practices. To the extent the amendments result in these practices being followed more consistently, they could benefit the public by increasing the amount of information available, making more information available in an electronic format, and ensuring that requesters know of their right to seek alternative dispute resolution. The Commission also believes that the public could benefit from the increased transparency regarding these practices. The Commission does not expect these amendments to result in additional costs to any member of the public.

Second, the final rule will amend several procedural provisions within the Commission's FOIA regulations, which will better reflect and improve existing practice. Most of these changes codify existing Office of FOIA Services practice, including: (1) Adding to the regulation additional methods for submitting FOIA requests and administrative appeals; (2) clarifying the existing procedures for submitting requests for records about oneself or another individual; (3) clarifying the existing procedures for submitting a proper FOIA request and seeking clarification of a request; (4) clarifying existing procedures for submitting an administrative appeal; and (5) clarifying the existing practice that limits administrative appeals to written filings (i.e., there is no opportunity for personal appearance, oral argument, or hearing on appeal). The Commission does not expect these changes to result in additional costs to any member of the public. The Commission also expects that there would be some benefit to FOIA requesters from the increased transparency regarding these practices.

Two procedural changes could impose limited costs on members of the public. First, FOIA requesters will be required to include their full names and addresses in their requests. Providing a full name and address is not itself burdensome, but some requesters may prefer to remain anonymous and could be deterred from submitting FOIA requests by this requirement. However, because nearly all FOIA requesters provide this information already, the Commission expects that the economic impact of the amendment will be minimal. Second, the Office of FOIA Services will be able to aggregate related requests from one requester (or a group of requesters). The Office of FOIA Services can aggregate requests that on their own do not involve “unusual circumstances,” as defined in the amended regulations, or warrant placement in a track for complex requests (i.e., requests that require more work and/or time to process than most requests), so aggregation may lead to extended deadlines for processing a request or cause a request to be handled after other complex requests. Based on past experience, the Commission expects that few requests will be aggregated. In addition, if the aggregation of requests results in the requests being placed in a track for complex requests that could extend the processing time, the requester can modify the request so that it can be processed more quickly. Thus, the Commission expects that the impact of this amendment also will be minimal.

Third, the Commission is revising the Office of FOIA Services' fee procedures and fee schedule in several ways, including: (1) Eliminating from the rule the per page duplication fee for copying or printing requested records, and instead referring requesters to the FOIA fee page on the Commission's website; (2) allowing the Office of FOIA Services to collect fees before sending records to a requester instead of seeking payment when the records are sent; (3) clarifying the direct costs that can be charged by the Office of FOIA Services as part of its search, review, and duplication fees; and (4) codifying the existing Office of FOIA Services practice of charging requesters the actual cost of production for materials produced in an electronic format. In general, lowering fees associated with FOIA requests could encourage additional FOIA submissions, while raising fees could deter them. However, as discussed below, the Commission does not anticipate that any of its changes to the Office of FOIA Services' fee procedures will impose significant new costs on FOIA requesters.

With respect to the elimination of the set per page duplication fee, the Office of FOIA Services has already lowered its per page duplication fee from 24 cents to 15 cents to reflect its actual duplication costs. Even if the Office of FOIA Services were to increase the per page duplication fee in the future, the impact of any increase would likely be minimal. Information about the fees the Commission has collected for FOIA requests for the past seven years allows the Commission to estimate the economic effects of this proposed change. Table 1 shows the number of requests received and processed by the Commission during fiscal years 2011 through 2017 and the fees the Commission collected. The fees collected by the Commission for processing FOIA requests include charges for staff time associated with locating, reviewing, and copying responsive documents, as well as duplication fees for paper copies and production costs for other types of media. The fee schedule for FOIA requests is available on the Commission's website.

Table 1—FOIA Requests in Fiscal Years 2011 to 2017 Fiscal year Requests
  • received
  • Requests
  • processed
  • Fees
  • collected for
  • processing
  • requests
  • 2011 11,555 11,562 $78,005.94 2012 11,292 11,302 27,577.00 2013 12,275 12,167 35,954.30 2014 14,862 14,757 22,670.81 2015 16,898 16,207 19,890.07 2016 14,458 15,196 41,029.68 2017 13,063 13,069 35,025.15

    As shown in Table 1, from fiscal years 2011-2017, the Office of FOIA Services collected an average of $37,164.71 per year in fees for processing an average of 13,466 requests. These amounts correspond to an average fee of $2.76 collected per request processed.28 Even if all of those fees were for duplication (which they were not), a one cent per page increase in duplication fees would result in an increase in total fees collected of approximately $1,548.53,29 corresponding to an average fee of $2.87 collected per request processed.30

    28 Calculated as $37,164.71/13,466 = $2.76.

    29 To arrive at this estimated increase, we divide $37,164.71 in duplication fees by a cost of $0.24 per page to derive an estimate of approximately 154,853 pages of copies on average per fiscal year. 154,853 pages × $0.01 increase in per-page duplication fees = $1,548.53 in additional total processing fees.

    30 Calculated as ($37,164.71 + $1,548.53)/13,466 = $2.87.

    With respect to the amendment providing that the FOIA Office can collect fees before sending records to a requester (instead of seeking payment when the records are sent), the Commission expects that any additional cost will be limited to a slight delay in receiving documents. The timing of the collection will not itself impose any additional costs on FOIA requesters because the timing would not alter the amount of fees charged. Any delay in receiving the documents will not be significant because a FOIA requester could make an electronic payment upon receipt of the request for payment, and the Office of FOIA Services would then provide the documents. The Commission notes that some requesters may choose to forgo receiving the records in question if the fees are substantial, though even this impact may be muted because requesters will have been advised of and approved potential charges before requests are processed by the FOIA Office.

    The clarification regarding direct costs and codification of existing practices with respect to fees for materials produced in an electronic format are consistent with existing practices, and the Commission therefore does not expect these amendments to impose any additional burden on the public. The other changes to the Office of FOIA Services' fee procedures also codify existing processes and will therefore not impose any additional burden on requesters. These changes include: (1) Clarifying that the Office of FOIA Services will not process any requests once it determines that a fee may be charged unless the requester commits to pay the estimated fees; and (2) adding and clarifying certain fee-related definitions. The Commission does not expect these amendments to result in additional costs to any member of the public. To the contrary, the Commission believes that the public could benefit from the increased transparency regarding these practices. As discussed above, some of the fee-related definitions have been revised in the final rule in response to comments on the proposed rule. Specifically, the Commission has revised the definitions of “educational institution” and “representative of the news media” or “news media requester.” The revisions serve to clarify and broaden the scope of existing definitions, which may benefit some requesters. The Commission does not expect these revisions to result in additional costs to any member of the public.

    Finally, the final rule will eliminate certain provisions in the SEC's FOIA regulations that are restatements of provisions in the FOIA statute. The Commission does not expect these amendments to result in any economic effects, as the elimination of these redundant provisions will not have any substantive consequence.

    The Commission requested comments on all aspects of the benefits and costs of the proposal. No commenter addressed the economic analysis contained in the proposal. The Commission continues to believe that the amendments to the Commission's FOIA regulations will not have any significant impact on efficiency, competition, or capital formation.

    VI. Regulatory Flexibility Act Certification

    Pursuant to Section 605(b) of the Regulatory Flexibility Act of 1980,31 the Commission certified that, when adopted, the amendments to 17 CFR 200.80 would not have a significant economic impact on a substantial number of small entities. This certification, including our basis for the certification, was included in the proposing release. The Commission solicited comments on the appropriateness of its certification, but received none. The Commission is adopting the final rules as modified and discussed above. These modifications to the proposal would not alter the basis upon which the certification was made.

    31 5 U.S.C. 605(b).

    VII. Paperwork Reduction Act

    The Commission stated in the proposed release that the proposed amendments to the FOIA regulations do not contain any collection of information as defined by the Paperwork Reduction Act of 1995 (“PRA”).32 The Commission also determined that the proposed amendments would not create any new filing, reporting, recordkeeping, or disclosure reporting requirements. Accordingly, the Commission did not submit the proposed amendments to the Office of Management and Budget for review under the PRA.33 The Commission solicited comments on whether its conclusion that there are no new collections of information is correct, and it did not receive any comments.

    32 44 U.S.C. 3501 et seq.

    33 44 U.S.C. 3507(d) and 5 CFR 1320.11.

    VIII. Statutory Authority and Text of Rule Amendments

    The amendments contained herein are being proposed under the authority set forth in Public Law 114-185 § 3(a), 130 Stat. 538; 5 U.S.C. 552; 15 U.S.C. 77f(d), 77s, 77ggg(a), 78d-1, 78w(a), 80a-37(a), 80a-44(b), 80b-10(a), and 80b-11(a).

    List of Subjects in 17 CFR Part 200

    Administrative practice and procedure; Freedom of information.

    Text of Amendments

    For the reasons stated in the preamble, the Commission amends 17 CFR part 200 as follows:

    PART 200—ORGANIZATION; CONDUCT AND ETHICS; AND INFORMATION AND REQUESTS Subpart D—Information and Requests 1. The authority citation for subpart D is revised to read as follows: Authority:

    5 U.S.C. 552, as amended, 15 U.S.C. 77f(d), 77s, 77ggg(a), 77sss, 78m(F)(3), 78w, 80a-37, 80a-44(a), 80a-44(b), 80b-10(a), and 80b-11, unless otherwise noted.

    Section 200.80 also issued under Public Law 114-185 sec. 3(a), 130 Stat. 538; 5 U.S.C. 552; 15 U.S.C. 77f(d), 77s, 77ggg(a), 78d-1, 78w(a), 80a-37(a), 80a-44(b), 80b-10(a), and 80b-11(a), unless otherwise noted.

    Section 200.82 also issued under 15 U.S.C. 78n.

    Section 200.83 also issued under E.O. 12600, 3 CFR, 1987 Comp., p. 235.

    2. Section 200.80 is revised to read as follows:
    § 200.80 Securities and Exchange Commission records and information.

    (a) General provisions. (1) This section contains the rules that the U.S. Securities and Exchange Commission follows in processing requests for records under the Freedom of Information Act (“FOIA”), 5 U.S.C. 552, as amended. These rules should be read in conjunction with the text of the FOIA and the Uniform Freedom of Information Fee Schedule and Guidelines published by the Office of Management and Budget (“OMB Guidelines”). Requests made by individuals for records about themselves under the Privacy Act of 1974, 5 U.S.C. 552a, are processed in accordance with the Commission's Privacy Act regulations at subpart H, as well as this section.

    (2)(i) Records that the FOIA requires to be made available for public inspection in an electronic format (pursuant to 5 U.S.C. 552(a)(2)) are accessible through the Commission's website, http://www.sec.gov. Each division and office of the Commission is responsible for determining which of its records are required to be made publicly available in an electronic format, as well as identifying additional records of interest to the public that are appropriate for public disclosure, and for posting and indexing such records. Each division and office shall ensure that its posted records and indexes are reviewed and updated on an ongoing basis.

    (ii) Persons who do not have access to the internet may obtain these records by contacting the Commission's Office of FOIA Services by telephone at 202-551-7900, by email at [email protected], or by visiting the Commission's Public Reference Room, 100 F Street NE, Washington, DC 20549-2736, on official working days between the hours of 10:00 a.m. and 3:00 p.m.

    (b) Requirements for making requests for records—(1) How made and addressed. The Commission has a centralized system for responding to FOIA requests, with all requests processed by the Office of FOIA Services. Requests for agency records must be in writing and include the requester's full name and a legible return address. Requesters may also include other contact information, such as an email address and a telephone number. Requests may be submitted by U.S. mail or delivery service and addressed to the Freedom of Information Act Officer, SEC, 100 F Street NE, Washington, DC 20549. Requests may also be made by facsimile (202-772-9337), email ([email protected]), or online at the Commission's website (http://www.sec.gov). The request (and envelope, if the request is mailed or hand-delivered) should be marked “Freedom of Information Act Request.”

    (2) Requests for records about oneself or another individual. (i) A requester who is making a request for records about himself or herself must comply with the verification of identity provisions set forth in subpart H of this part to obtain any documents that would not be available to the public under the FOIA.

    (ii) For requests for records about another individual, a requester may receive greater access by submitting either a notarized authorization signed by the individual permitting disclosure of his or her records or proof that the individual is deceased (e.g., a copy of a death certificate or an obituary). The Office of FOIA Services can require a requester to supply additional information if necessary to verify that a particular individual has consented to disclosure.

    (3) Description of records sought. A FOIA request must reasonably describe the agency records sought with sufficient specificity with respect to names, dates, and subject matter to enable personnel within the divisions and offices of the Commission to locate them with a reasonable effort. Before submitting a request, a requester may contact the Office of FOIA Services' FOIA Public Liaisons to discuss the records they are seeking and to receive assistance in describing the records (contact information for these individuals is on the Commission's website, http://www.sec.gov). If the Office of FOIA Services determines that a request does not reasonably describe the records sought, it shall inform the requester what additional information is needed or how the request is insufficient. A requester who is attempting to reformulate or modify such a request may discuss the request with the Office of FOIA Services' designated FOIA contact, its FOIA Public Liaisons, or a representative of the Office of FOIA Services, each of whom is available to assist the requester in reasonably describing the records sought. When a requester fails to provide sufficient information within 30 calendar days after having been asked to reasonably describe the records sought, the Office of FOIA Services shall notify the requester in writing that the request has not been properly made, that no further action will be taken, and that the FOIA request is closed. Such a notice constitutes an adverse determination under paragraph (e)(2) of this section for which the Office of FOIA Services shall follow the procedures for a denial letter under paragraph (e)(2) of this section. In cases where a requester has modified his or her request so that it reasonably describes the requested records, the date of receipt for purposes of the 20-day time limit of paragraph (d) of this section shall be the date of receipt of the modified request.

    (c) Processing requests—(1) In general. (i) A request for records may be denied to the extent the exemptions in 5 U.S.C. 552(b) apply to the requested records and:

    (A) Commission staff reasonably foresees that disclosure would harm an interest protected by the applicable exemption; or

    (B) The disclosure of the requested records is prohibited by law or is exempt from disclosure under 5 U.S.C. 552(b)(3).

    (ii) In determining which records are responsive to a request, the Office of FOIA Services ordinarily will include only records in the agency's possession as of the date that it begins its search.

    (2) Re-routing of misdirected requests. Any division or office within the Commission that receives a written request for records should promptly forward the request to the Office of FOIA Services for processing.

    (3) Consultation, referral, and coordination. When reviewing records located in response to a request, the Office of FOIA Services will determine whether another Federal agency is better able to determine if the record is exempt from disclosure under the FOIA. As to any such record, the Office of FOIA Services will proceed in one of the following ways:

    (i) Consultation. In instances where a record is requested that originated within a division or office within the Commission and another Federal agency has a significant interest in the record (or a portion thereof), the Office of FOIA Services will consult with that Federal agency before responding to a requester. When the Office of FOIA Services receives a request for a record (or a portion thereof) in its possession that originated with another entity within the Federal Government that is not subject to the FOIA, the Office of FOIA Services will typically consult with that entity prior to making a release determination.

    (ii) Referral. When the Office of FOIA Services receives a request for a record (or a portion thereof) in its possession that originated with another Federal agency subject to the FOIA, the Office of FOIA Services will typically refer the record to that agency for direct response to the requester. Ordinarily, the agency that originated the record will be presumed to be best able to make the disclosure determination. However, if the Office of FOIA Services and the originating agency jointly agree that the Office of FOIA Services is in the best position to make a disclosure determination regarding the record, then the record may be handled as a consultation and processed by the Office of FOIA Services. Whenever the Office of FOIA Services refers a record to another Federal agency for direct response to the requester, the Office of FOIA Services shall notify the requester in writing of the referral and inform the requester of the name of the agency to which the record was referred.

    (iii) Coordination. If disclosure of the identity of the agency to which the referral would be made could harm an interest protected by an exemption, the Office of FOIA Services generally will coordinate with the originating agency to seek its views as to disclosure of the record and then advise the requester of the release determination for the record that is the subject of the coordination.

    (iv) Classified information. On receipt of any request involving classified information, the Commission staff in possession of the information shall determine whether the information is currently and properly classified and take appropriate action to ensure compliance with subpart J of this part. Whenever a request involves a record containing information that has been classified or may be appropriate for classification by another Federal agency under an executive order concerning the classification of records, the Office of FOIA Services shall refer the responsibility for responding to the request regarding that information to the agency that classified the information, or that should consider the information for classification. Whenever agency records contain information that has been classified by another Federal agency, the Office of FOIA Services shall refer the responsibility for responding to that portion of the request to the agency that classified the underlying information except in circumstances that come within paragraph (c)(3)(iii) of this section.

    (d) Time limits and expedited processing—(1) In general. The Office of FOIA Services will seek to respond to requests according to their order of receipt within each track of the Office of FOIA Services' multitrack processing system as described in paragraph (d)(4) of this section.

    (2) Initial response. A determination whether to comply with a FOIA request shall be made within 20 days (excepting Saturdays, Sundays, and legal public holidays) from the date the Office of FOIA Services receives a request for a record under this part, except when the circumstances described in paragraph (d)(3), (5), or (7) of this section are applicable. In instances where a FOIA requester has misdirected a request that is re-routed pursuant to paragraph (c)(2) of this section, the response time shall commence on the date that the request is first received by the Office of FOIA Services, but in any event not later than 10 working days after the request is first received by any division or office of the Commission.

    (3) Clarification of request. The Office of FOIA Services may seek clarification of a request (or a portion of a request) for records. The request for clarification generally should be in writing. The first time the Office of FOIA Services seeks clarification, the time for responding to the entire request (set forth in paragraph (d)(2) of this section) is tolled until the requester responds to the clarification request. The tolled period will end when the Office of FOIA Services receives a response from the requester that reasonably describes the requested records. If the Office of FOIA Services asks for clarification and does not receive a written response from the requester within 30 calendar days from the date of the clarification request, the Office of FOIA Services will presume that the requester is no longer interested in the record(s) sought and notify the requester that any portion of the request as to which clarification was sought has been closed.

    (4) Multitrack processing. The Office of FOIA Services shall use a multitrack system for processing FOIA requests. The Office of FOIA Services shall designate one track for requests that are granted expedited processing, in accordance with the standards set forth in paragraph (d)(7) of this section. The Office of FOIA Services shall use two or more additional processing tracks that distinguish between simple and more complex requests based on the estimated amount of work and/or time needed to process the request. Among the factors the Office of FOIA Services may consider are the time to perform a search, the number of pages that must be reviewed in processing the request, and the need for consultations or referrals. The Office of FOIA Services shall advise requesters of the track into which their request falls and, when appropriate, shall offer the requesters an opportunity to narrow the scope of their request so that it can be placed in a different processing track.

    (5) Unusual circumstances. The Office of FOIA Services may extend the time period for processing a FOIA request in “unusual circumstances.” To extend the time, the Office of FOIA Services shall notify the requester in writing of the unusual circumstances involved and of the date by which processing of the request is expected to be completed. If the extension exceeds 10 working days, the Office of FOIA Services shall provide the requester, in writing, with an opportunity to modify the request or arrange an alternative time frame for processing the request or a modified request. The Office of FOIA Services shall also make available its FOIA Public Liaisons to assist in the resolution of any disputes and notify the requester of the right to seek dispute resolution services from the Office of Government Information Services. For purposes of this section, “unusual circumstances” include:

    (i) The need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request.

    (ii) The need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records that are the subject of a single request.

    (iii) The need to consult with another Federal agency having a substantial interest in the determination of the FOIA request or among two or more divisions or offices within the Commission having substantial subject-matter interest therein.

    (6) Aggregating requests. The Office of FOIA Services may aggregate requests in cases where it reasonably believes that multiple requests, submitted either by a requester or by a group of requesters acting in concert, together constitute a single request that would involve unusual circumstances, as defined in paragraph (d)(5) of this section. Multiple requests involving unrelated matters shall not be aggregated. The Office of FOIA Services shall advise requesters, in writing, when it determines to aggregate multiple requests and comply with paragraph (d)(5) of this section. Aggregation of requests for this purpose will be conducted independent of aggregation requests for fee purposes under paragraph (g)(8) of this section.

    (7) Expedited processing. The Office of FOIA Services shall grant a request for expedited processing if the requester demonstrates a “compelling need” for the records. “Compelling need” means that a failure to obtain the requested records on an expedited basis could reasonably be expected to pose an imminent threat to an individual's life or physical safety or, if the requester is primarily engaged in disseminating information, an urgency to inform the public about an actual or alleged Federal Government activity.

    (i) A request for expedited processing may be made at the time of the initial request for records or at any later time.

    (ii) A requester who seeks expedited processing must submit a statement, certified to be true and correct to the best of that person's knowledge and belief, explaining why there is a “compelling need” for the records.

    (iii) The Office of FOIA Services shall determine whether to grant or deny a request for expedited processing and provide notice of that determination within 10 calendar days of receipt of the request by the Office of FOIA Services. A request for records that has been granted expedited processing shall be processed as soon as practicable. If a request for expedited processing is denied, any appeal of that determination shall be decided expeditiously.

    (8) Appeals. An administrative appeal shall be decided within 20 days (excepting Saturdays, Sundays, and legal public holidays) from the date the Office of FOIA Services receives such appeal except in the unusual circumstances specified in paragraph (d)(5) of this section. In those unusual circumstances, the 20-day time limit may be extended by written notice to the person making the appeal setting forth the unusual circumstances for such extension and the date on which a determination is expected to be dispatched. No such notice shall specify a date that would result in an extension of more than 10 working days.

    (e) Responses to requests for records—(1) Acknowledgment of requests. Upon receipt of a request for records, the Office of FOIA Services ordinarily will send the requester an acknowledgment letter that provides an assigned request number for further reference and, if necessary, confirms whether the requester is willing to pay fees.

    (2) Responses to requests. (i) Any letter determining whether to comply with a request will inform the requester of the right to seek assistance from the Office of FOIA Services' FOIA Public Liaisons.

    (ii) If the Office of FOIA Services makes a determination to grant a request in whole or in part, it shall notify the requester in writing of such determination, disclose records to the requester, and collect any applicable fees.

    (iii) If the Office of FOIA Services makes an adverse determination regarding a request, it shall notify the requester of that determination in writing. Adverse determinations, or denials of requests, include decisions that: the requested record is exempt, in whole or in part; the request does not reasonably describe the records sought; the requested record does not exist (or is not subject to the FOIA), cannot be located, or has previously been destroyed; or the requested record is not readily producible in the form or format sought by the requester. Adverse determinations also include designations of requesters' fee category, denials of fee waiver requests, or denials of requests for expedited processing.

    (iv) An adverse determination letter shall be signed and include:

    (A) The names and titles or positions of each person responsible for the adverse determination;

    (B) A brief statement of the reasons for the adverse determination, including any FOIA exemption applied by the official denying the request;

    (C) For records disclosed in part, markings or annotations to show the applicable FOIA exemption(s) and the amount of information deleted, unless doing so would harm an interest protected by an applicable exemption. The location of the information deleted shall also be indicated on the record, if feasible;

    (D) An estimate of the volume of any records or information withheld by providing the number of pages withheld in their entirety or some other reasonable form of estimation. This estimate is not required if the volume is otherwise indicated by deletions marked on the records that are disclosed in part or if providing an estimate would harm an interest protected by an applicable FOIA exemption;

    (E) A statement that the adverse determination may be appealed under paragraph (f) of this section, and a description of the requirements for filing an administrative appeal set forth in that paragraph; and

    (F) A statement of the right of the requester to seek dispute resolution services from the Office of FOIA Services' FOIA Public Liaisons or the Office of Government Information Services (“OGIS”).

    (3) Mediation services. OGIS offers mediation services to resolve disputes between requesters and the Office of FOIA Services as a non-exclusive alternative to litigation. Requesters with concerns about the handling of their requests may contact OGIS.

    (f) Administrative appeals—(1) Administrative review. If a requester receives an adverse determination as described in paragraph (e)(2)(iii) of this section, or the request has not been timely determined within the time period prescribed in paragraph (d)(2) of this section or within an extended period permitted under paragraph (d)(5) of this section, the requester may file an appeal to the Office of the General Counsel consistent with the procedures described in paragraphs (f)(2) through (4) of this section. A requester must generally submit a timely administrative appeal before seeking review by a court of an adverse determination.

    (2) Time limits. Appeals can be submitted in writing or electronically, as described in paragraph (f)(3) of this section. The appeal must be received within 90 calendar days of the date of the written denial of the adverse determination and must be received no later than 11:59 p.m., Eastern Time, on the 90th day. If the Office of FOIA Services has not issued a determination on a request, an appeal may be submitted any time after the statutory time period for responding to a request ends.

    (3) Contents of appeal. Appeals should be clearly and prominently identified at the top of the first page as “Freedom of Information Act Appeal” and should provide the assigned FOIA request number. The appeal should include a copy of the original request and adverse determination. Appeals should include a statement of the requester's arguments as to why the records requested should be made available and the reason(s) the FOIA requester contends the adverse determination was in error. If only a portion of the adverse determination is appealed, the requester must specify which part is being appealed.

    (4) How to file and address an appeal. If submitted by U.S. mail or delivery service, the appeal must be sent to the Office of FOIA Services at 100 F Street NE, Washington, DC 20549. Appeals may also be made by facsimile at 202-772-9337, email ([email protected]), or online at the Commission's website (http://www.sec.gov). A legible return address must be included with the FOIA appeal. The requester may also include other contact information, such as a telephone number and/or email address.

    (5) Adjudication of appeals. The Office of the General Counsel has the authority to grant or deny all appeals, in whole or in part. In appropriate cases the Office of the General Counsel may refer appeals to the Commission for determination. No opportunity for personal appearance, oral argument, or hearing on appeal is provided. Upon receipt of an appeal, the Office of FOIA Services ordinarily will send the requester an acknowledgment letter that confirms receipt of the requester's appeal.

    (6) Determinations on appeals. A determination on an appeal must be made in writing. A determination that denies an appeal, in whole or in part, shall include a brief explanation of the basis for the denial, identify the applicable FOIA exemptions asserted, and describe why the exemptions apply. As applicable, the determination will provide the requester with notification of the statutory right to file a lawsuit in accordance with 5 U.S.C. 552(a)(4), and will inform the requester of the mediation services offered by the Office of Government Information Services as a non-exclusive alternative to litigation. If the Office of FOIA Services' determination is remanded or modified on appeal, the Office of the General Counsel will notify the requester of that determination in writing.

    (g) Fees—(1) In general. The Office of FOIA Services shall charge fees for processing requests under the FOIA in accordance with the provisions of this section and with the OMB Guidelines, except where fees are limited under paragraph (g)(4) of this section or when a waiver or reduction is granted under paragraph (g)(12) of this section. To resolve any fee issues that arise under this section, the Office of FOIA Services may contact a requester for additional information. The Office of FOIA Services shall ensure that searches, review, and duplication are conducted in an efficient manner. The Office of FOIA Services ordinarily will collect all applicable fees before sending copies of records to a requester. Requesters must pay fees by check, certified check, or money order, or where possible, by electronic payment.

    (2) Definitions. For purposes of this section:

    (i) Commercial use request is a request from or on behalf of a person who seeks information for a use or purpose that furthers his or her commercial, trade, or profit interests, which can include furthering those interests through litigation. The Office of FOIA Services will determine whether to place a requester in the commercial use category on a case-by-case basis based on the requester's intended use of the information.

    (ii) Direct costs are those expenses the Office of FOIA Services and any staff within the divisions and offices of the Commission incur in searching for and duplicating (and, in the case of commercial use requests, reviewing) records to respond to a FOIA request. Direct costs include the salary of the employee(s) performing the work (i.e., the basic rate of pay for the employee(s), plus 16% of that rate to cover benefits), the cost of materials, and the cost of operating computers and other electronic equipment, such as photocopiers and scanners. Direct costs do not include overhead expenses such as the costs of space and of heating or lighting a facility in which the service is performed.

    (iii) Duplication is reproducing a record, or the information contained in it, to respond to a FOIA request. Copies can take the form of paper, audiovisual materials, or electronic records, among others. The Office of FOIA Services shall honor a requester's specified preference of form or format of disclosure if the record is readily reproducible with reasonable efforts in the requested form or format.

    (iv) Educational institution is any school that operates a program of scholarly research. A requester in this fee category must show that the request is made in connection with the requester's role at the educational institution and that the records are not sought for commercial or personal use.

    (v) Noncommercial scientific institution is an institution that is not operated to further a commercial, trade, or profit interest and that is operated solely for the purpose of conducting scientific research, the results of which are not intended to promote any particular product or industry. A requester in this category must show that the request is authorized by and is made under the auspices of a qualifying institution and that the records are sought to further scientific research and are not for a commercial use.

    (vi) Representative of the news media or news media requester is any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience. The term “news” means information that is about current events or that would be of current interest to the public.

    (vii) Review is the examination of a record located in response to a request to determine whether any portion of it is exempt from disclosure. Review time includes doing all that is necessary to prepare the record for disclosure, such as redacting the record and marking any applicable exemptions. Review time also includes time spent obtaining and considering formal objections to disclosure made by a submitter under § 200.83, but it does not include time spent resolving legal or policy issues regarding the application of exemptions.

    (viii) Search is the review, manually or by automated means, of agency records for the purpose of locating those records that are responsive to a request. Search time includes page-by-page or line-by-line identification of information within records and the reasonable efforts expended to locate and retrieve information from electronic records.

    (3) Charging fees. In responding to FOIA requests, the Office of FOIA Services shall charge fees for the services summarized in chart form in paragraph (g)(3)(i) of this section and explained in paragraphs (g)(3)(ii) through (v) of this section, unless fees are limited under paragraph (g)(4) of this section or a waiver or reduction of fees has been granted under paragraph (g)(12) of this section.

    (i) The four categories of requesters and the chargeable fees for each are:

    Requester category Search fees Review fees Duplication fees (A) Commercial use requesters Yes Yes Yes. (B) Educational and noncommercial scientific institutions No No Yes (first 100 pages, or equivalent volume, free). (C) Representatives of the news media No No Yes (first 100 pages, or equivalent volume, free). (D) All other requesters Yes (first 2 hours free) No Yes (first 100 pages, or equivalent volume, free).

    (ii) Search fees. (A) Search fees shall be charged for all requests—other than requests made by educational institutions, noncommercial scientific institutions, or representatives of the news media—subject to the limitations of paragraph (g)(4) of this section. The Office of FOIA Services may charge for time spent searching even if no responsive records are located or it is determined that the records are entirely exempt from disclosure. Search fees shall be the direct costs of conducting the search by agency employees.

    (B) Requesters shall be charged the direct costs associated with conducting any search that requires the creation of a new computer program to locate or identify responsive records. Requesters shall be notified of the costs associated with creating and implementing such a program and must agree to pay the associated costs before the costs may be incurred.

    (C) For requests that require the retrieval of agency records stored at a Federal records center operated by the National Archives and Records Administration (“NARA”), additional costs shall be charged in accordance with the Transactional Billing Rate Schedule established by NARA.

    (iii) Review fees. Review fees shall be charged to requesters who make commercial use requests. Review fees shall be assessed in connection with the initial review of the record, i.e., the review agency employees conduct to determine whether an exemption applies to a particular record or portion of a record. Also, if an exemption asserted to withhold a record (or a portion thereof) is deemed to no longer apply, any costs associated with the re-review of the records to consider the use of other exemptions may be assessed as review fees. Review fees shall be the direct costs of conducting the review by the involved employees. Review fees can be charged even if the records reviewed ultimately are not disclosed.

    (iv) Search and review services (review applies to commercial-use requesters only). (A) The Office of FOIA Services will establish and charge average rates for the groups of employees' salary grades typically involved in the search and review of records. Those groups will consist of employees at:

    (1) Grades SK-8 or below;

    (2) Grades SK-9 to SK-13; and

    (3) Grades SK-14 or above.

    (B) The average rates will be based on the hourly salary (i.e., basic salary plus locality payment), plus 16 percent for benefits, of employees who routinely perform search and review services. The average hourly rates are listed on the FOIA web page of the Commission's website at http://www.sec.gov and will be updated as salaries change. Fees will be charged in quarter-hour increments. No search fee or review fee will be charged for a quarter-hour period unless more than half of that period is required for search or review.

    (v) Duplication fees. Duplication fees shall be charged to all requesters, subject to the limitations of paragraph (g)(4) of this section. Fees for either a photocopy or printout of a record (no more than one copy of which need be supplied) are identified on the FOIA web page of the Commission's website at www.sec.gov. For copies of records produced on tapes, disks, or other media, the Office of FOIA Services shall charge the direct costs of producing the copy, including operator time. Where paper documents must be scanned to comply with a requester's preference to receive the records in an electronic format, the requester shall pay the direct costs associated with scanning those materials. For all other forms of duplication, the Office of FOIA Services shall also charge the direct costs.

    (4) Limitations on charging fees. (i) No search or review fees will be charged for requests by educational institutions (unless the requests are sought for a commercial use), noncommercial scientific institutions, or representatives of the news media.

    (ii) Except for requesters seeking records for a commercial use, the Office of FOIA Services shall provide without charge the first 100 pages of duplication (or the cost equivalent for other media) and the first two hours of search.

    (iii) Fees will not be charged where the costs of collecting and processing the fee are likely to equal or exceed the amount of the fee.

    (iv) The Office of FOIA Services will not assess search fees (or, in the case of requests from representatives of the news media or educational or noncommercial scientific institutions, duplication fees) when 5 U.S.C. 552(a)(4)(A)(viii) prohibits the assessment of those fees.

    (5) Notice of anticipated fees. (i) When the Office of FOIA Services determines or estimates that the fees to be assessed in accordance with this section will exceed the amount it would cost the Office of FOIA Services to collect and process the fees, the Office of FOIA Services shall notify the requester of the actual or estimated amount of fees, unless the requester has indicated a willingness to pay fees as high as the estimated fees. If only a portion of the fee can be estimated readily, the Office of FOIA Services shall advise the requester accordingly. If the requester is not a commercial use requester, the notice shall specify that the requester is entitled to the statutory entitlements of 100 pages of duplication at no charge and, if the requester is charged search fees, two hours of search time at no charge.

    (ii) In cases in which a requester has been notified that the actual or estimated fees will amount to more than it would cost the Office of FOIA Services to collect and process the fees, or amount to more than the amount the requester indicated a willingness to pay, the Office of FOIA Services will do no further work on the request until the requester commits in writing to pay the actual or estimated total fee, or designates some amount of fees the requester is willing to pay, or in the case of a requester who is not a commercial use requester, designates that the requester seeks only that which can be provided by the statutory entitlements. The Office of FOIA Services will toll the response period while it notifies the requester of the actual or estimated amount of fees and this time will be excluded from the 20 working day time limit (as specified in paragraph (d)(2) of this section). The requester's agreement to pay fees must be made in writing, must designate an exact dollar amount the requester is willing to pay, and must be received within 30 calendar days from the date of the notification of the fee estimate. If the requester fails to submit an agreement to pay the anticipated fees within 30 calendar days from the date of the Office of FOIA Services' fee notice, the Office of FOIA Services will presume that the requester is no longer interested in the records and notify the requester that the request has been closed.

    (iii) The Office of FOIA Services shall make available their FOIA Public Liaisons or other FOIA professionals to assist any requester in reformulating a request to meet the requester's needs at a lower cost.

    (6) Charges for other services. Although not required to provide special services, if the Office of FOIA Services chooses to do so as a matter of administrative discretion, the direct costs of providing the service shall be charged. Examples of such special services include certifying that records are true copies, providing multiple copies of the same document, or sending records by means other than first class mail. The cost for the attestation of records with the Commission seal (i.e., certifying records as true copies) is $4.00 per record, which may be waived for records certified electronically. Requests for certified copies of records or documents shall ordinarily be serviced within 20 working days. Requests will be processed in the order in which they are received.

    (7) Charging interest. The Office of FOIA Services may begin to charge interest on any unpaid bill starting on the 31st calendar day following the date of billing the requester. Interest charges shall be assessed at the rate provided in 31 U.S.C. 3717 and accrue from the date of the billing until the payment is received. The Office of FOIA Services shall take all steps authorized by the Debt Collection Act of 1982, as amended, and the Commission's Rules Relating to Debt Collection to effect payment, including offset, disclosure to consumer reporting agencies, and use of collection agencies.

    (8) Aggregating requests. If the Office of FOIA Services reasonably believes that a requester or a group of requesters acting in concert is attempting to divide a request into a series of requests for the purpose of avoiding fees, the Office of FOIA Services may aggregate those requests and charge accordingly. Among the factors the Office of FOIA Services shall consider in deciding whether to aggregate are whether the requests were submitted close in time and whether the requests seek documents about related matters. The Office of FOIA Services may presume that multiple requests that involve related matters made by the same requester or a group of requesters within a 30 calendar day period have been made to avoid fees. For requests separated by a longer period, the Office of FOIA Services will aggregate them only where it determines that aggregation is warranted in view of all the circumstances involved.

    (9) Advance payments. (i) For requests other than those described in paragraphs (g)(9)(ii) and (iii) of this section, the Office of FOIA Services shall not require a requester to make advance payment (i.e., payment made before the Office of FOIA Services begins to process or continues to work on a request). Payment owed for work already completed (i.e., payment before copies are sent to a requester) is not an advance payment.

    (ii) When the Office of FOIA Services determines or estimates that a total fee to be charged under this section will exceed $250.00, it shall notify the requester of the actual or estimated fee and may require the requester to make an advance payment of the entire anticipated fee before beginning to process the request. A notice under this paragraph shall offer the requester an opportunity to discuss the matter with the Office of FOIA Services' FOIA Public Liaisons or other FOIA professionals to modify the request in an effort to meet the requester's needs at a lower cost.

    (iii) When a requester has previously failed to pay a properly charged FOIA fee to the Office of FOIA Services or other Federal agency within 30 calendar days of the date of billing, the Office of FOIA Services shall notify the requester that he or she is required to pay the full amount due, plus any applicable interest, and to make an advance payment of the full amount of any anticipated fee, before the Office of FOIA Services begins to process a new request or continues processing a pending request from that requester. Where the Office of FOIA Services has a reasonable basis to believe that a requester has misrepresented the requester's identity to avoid paying outstanding fees, it may require that the requester provide proof of identity and pay in advance.

    (iv) When the Office of FOIA Services requires advance payment or payment due under paragraphs (g)(9)(ii) and (iii) of this section, the Office of FOIA Services will not further process the request until the required payment is made. The Office of FOIA Services will toll the processing of the request while it notifies the requester of the advanced payment due and this time will be excluded from the 20 working day time limit (as specified in paragraph (d)(2) of this section). If the requester does not pay the advance payment within 30 calendar days from the date of the Office of FOIA Services' fee notice, the Office of FOIA Services will presume that the requester is no longer interested in the records and notify the requester that the request has been closed.

    (10) Tolling. When necessary for the Office of FOIA Services to clarify issues regarding fee assessment with the requester, the time limit for responding to a FOIA request is tolled until the Office of FOIA Services resolves such issues with the requester.

    (11) Other statutes specifically providing for fees. The fee schedule of this section does not apply to fees charged under any statute (except the FOIA) that specifically requires an agency to set and collect fees for particular types of records. In instances where records responsive to a request are subject to a statutorily-based fee schedule program, the Office of FOIA Services shall inform the requester how to obtain records from that program. Provision of such records is not handled under the FOIA.

    (12) Requirements for waiver or reduction of fees. (i) Records responsive to a request will be furnished without charge, or at a charge reduced below that established under paragraph (g)(3) of this section, if the requester asks for such a waiver in writing and the Office of FOIA Services determines, after consideration of information provided by the requester, that the requester has demonstrated that:

    (A) Disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government; and

    (B) Disclosure of the information is not primarily in the commercial interest of the requester.

    (ii) In deciding whether disclosure of the requested information is likely to contribute significantly to public understanding of the operations or activities of the government, the Office of FOIA Services shall consider each of the following four factors:

    (A) The subject of the request: whether the subject of the requested records concerns the operations or activities of the government. The subject of the requested records must concern identifiable operations or activities of the Federal Government, with a connection that is direct and clear, not remote or attenuated.

    (B) The informative value of the information to be disclosed: whether the disclosure is likely to contribute to an understanding of government operations or activities. The disclosable portions of the requested records must be meaningfully informative about government operations or activities to be likely to contribute to an increased public understanding of those operations or activities. The disclosure of information that already is in the public domain, in either a duplicative or a substantially identical form, would not be likely to contribute to such understanding.

    (C) The contribution to an understanding of the subject by the public likely to result from disclosure: whether disclosure of the requested information will contribute to the understanding of a reasonably broad audience of persons interested in the subject, as opposed to the individual understanding of the requester. A requester's expertise in the subject area and ability and intention to effectively convey information to the public shall be considered. It shall be presumed that a representative of the news media satisfies this consideration.

    (D) The significance of the contribution to public understanding: whether the disclosure is likely to contribute significantly to public understanding of government operations or activities. The public's understanding of the subject in question prior to the disclosure must be significantly enhanced by the disclosure.

    (iii) In deciding whether disclosure of the requested information is primarily in the commercial interest of the requester, the Office of FOIA Services shall consider the following factors:

    (A) The existence and magnitude of a commercial interest: whether the requester has a commercial interest that would be furthered by the requested disclosure. The Office of FOIA Services shall consider any commercial interest of the requester (with reference to the definition of “commercial use requester” in paragraph (g)(2)(i) of this section), or of any person on whose behalf the requester may be acting, that would be furthered by the requested disclosure. Requesters shall be given an opportunity to provide explanatory information regarding this consideration.

    (B) The primary interest in disclosure: whether the public interest is greater than any identified commercial interest in disclosure. The Office of FOIA Services ordinarily shall presume that where a news media requester has satisfied the public interest standard, the public interest will be the interest primarily served by disclosure to that requester. Disclosure to data brokers or others who merely compile and market government information for direct economic return shall not be presumed to primarily serve the public interest.

    (iv) If only a portion of the requested records satisfies both the requirements for a waiver or reduction of fees, a waiver or reduction of fees will be granted for only that portion.

    (v) Requests for a waiver or reduction of fees should address all the factors identified in paragraphs (g)(12)(ii) and (iii) of this section.

    (vi) Denials of requests for a waiver or reduction of fees are adverse determinations (as defined in paragraph (e)(2)(iii) of this section) and may be appealed to the General Counsel in accordance with the procedures set forth in paragraph (f) of this section.

    § 200.80a [Removed]
    3. Remove § 200.80a.
    § 200.80b [Removed]
    4. Remove § 200.80b.
    § 200.80c [Removed]
    5. Remove § 200.80c.
    § 200.80d [Removed]
    6. Remove § 200.80d.
    § 200.80e [Removed]
    7. Remove § 200.80e.
    § 200.80f [Removed]
    8. Remove § 200.80f.

    By the Commission.

    Dated: June 25, 2018. Brent J. Fields, Secretary.
    [FR Doc. 2018-13943 Filed 6-27-18; 8:45 am] BILLING CODE 8011-01-P
    DEPARTMENT OF TRANSPORTATION Federal Highway Administration 23 CFR Part 658 [FHWA Docket No. FHWA-2018-0016] RIN 2125-AF82 Addition to the National Network AGENCY:

    Federal Highway Administration (FHWA), U.S. Department of Transportation (DOT).

    ACTION:

    Final rule.

    SUMMARY:

    The FHWA is approving the addition of Sheridan Boulevard (NY 895) to the National Network (NN) and revising its regulations to reflect the addition. The facility currently known as “Interstate-895 Sheridan Expressway” in New York City, located in Bronx County, will be reconstructed, removed from the National System of Interstate and Defense Highways (Interstate System) to accommodate new design features, and classified as an “Urban Principal Arterial—Other.” This facility will be identified as the “Sheridan Boulevard (NY 895).”

    DATES:

    This rule is effective July 30, 2018.

    FOR FURTHER INFORMATION CONTACT:

    For technical information, contact Ms. Caitlin Hughes, FHWA Office of Freight Management and Operations, (202) 493-0457. For legal information, contact Mr. William Winne, Office of Chief Counsel, (202) 366-1397. Federal Highway Administration, 1200 New Jersey Avenue SE., Washington, DC 20590. Office hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday through Friday, except Federal holidays.

    SUPPLEMENTARY INFORMATION:

    Electronic Access and Filing

    This document and all comments received may be viewed online through the Federal eRulemaking portal at www.regulations.gov. It is available 24 hours each day, 365 days each year. Please follow the instructions online for more information and help.

    An electronic copy of this document may also be downloaded by accessing the Office of the Federal Register's home page at: http://www.archives.gov and the Government Publishing Office's web page at: http://www.access.thefederalregister.org/nara.

    Background

    The NN consists of Interstate System routes (except exempted routes) and those non-Interstate System routes added through the rulemaking process. See 49 U.S.C. 31111(e)-(f) and 31113(e); 23 CFR part 658 Appendix A; see also 49 FR 23302 (June, 5, 1984). To ensure that the NN remains substantially intact, FHWA retains the authority to rule upon all requests for additions to, and deletions from, the NN as well as requests for the imposition of certain restrictions. Pursuant to 23 CFR 658.11, requests for additions to the NN must be submitted in writing to the appropriate FHWA Division Office and endorsed by the Governor or the Governor's authorized representative. Proposals for addition of routes to the NN must also be accompanied by an analysis of suitability based on the criteria in 23 CFR 658.9. Once a non-Interstate System route is added to the NN, it is included in Appendix A of 23 CFR part 658—National Network—Federally Designated Routes.

    On November 10, 2017, FHWA received a request from the New York State Department of Transportation (NYSDOT) proposing a modification to the Interstate System. The request, available in the rulemaking docket, proposes the de-designation (removal from the Interstate System) of the Sheridan Expressway (I-895), approximately a 1.3-mile Interstate between the Bruckner Expressway (I-278) and the Cross Bronx Expressway (I-95). As part of the de-designation, the State also proposes the functional reclassification of this highway segment from an Interstate to “Urban Principal Arterial—Other” and to rename the road Sheridan Boulevard (NY-895). The physical alignment of the highway would be maintained, and it would therefore continue to provide the same access for commercial vehicles as currently exists. The FHWA intends to act on this request pursuant to its regulatory authority on revisions to the Interstate System (23 CFR 470.115(a) and 23 CFR 658.11(d)) and guidance on Interstate System de-designations (https://www.fhwa.dot.gov/planning/national_highway_system/interstate_highway_system/withdrawalqa.cfm).

    The NYSDOT intends to keep Sheridan Boulevard (NY-895) in the NN. Because the route would no longer be in the Interstate System, it must be added to NN as a non-Interstate System route and be listed in 23 CFR part 658 Appendix A. The NYSDOT proposal included the required analysis of suitability based on the criteria in 23 CFR 658.9, which includes a crash analysis and safety study, and also documents effects on Interstate commerce, effects on alternate routes, effects on traffic operations, and consultation with local governments.

    The FHWA reviewed NYSDOT's proposal and affirms that the request to add a route to the NN is consistent with 23 CFR 658.9 and 658.11 with respect to the criteria for the NN and the procedures for additions to the NN. The FHWA published a Notice of Proposal Rulemaking at 83 FR 15524 on April 11, 2018, proposing to approve the addition of Sheridan Boulevard (NY 895) to the NN and to revise existing regulations (23 CFR part 658 Appendix A) to reflect the addition. The FHWA did not receive any comments to the NPRM and is adopting the changes as proposed.

    Rulemaking Analyses and Notices

    As the Sheridan Expressway is already part of the NN due to its Interstate designation, FHWA has determined there would be no substantive impact to the public resulting from the addition of the reconstructed facility, Sheridan Boulevard, to the NN.

    Executive Order 13771 (Reducing Regulation and Controlling Regulatory Costs), Executive Order 12866 (Regulatory Planning and Review), Executive Order 13563 (Improving Regulation and Regulatory Review), and DOT Regulatory Policies and Procedures

    Executive Orders 12866 and 13563 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). The FHWA has determined that this action is not a significant regulatory action within the meaning of Executive Order 12866 and is not significant within the meaning of DOT regulatory policies and procedures. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. It is anticipated that the economic impact of this rulemaking would be minimal. These changes would not adversely affect, in a material way, any sector of the economy. In addition, these changes would not interfere with any action taken or planned by another agency and would not materially alter the budgetary impact of any entitlements, grants, user fees, or loan programs. Consequently, a full regulatory evaluation is not required. Finally, this rule is not an E.O. 13771 regulatory action because it is not significant under E.O. 12866.

    Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (Pub. L. 96-354, 5 U.S.C. 601-612), the FHWA has evaluated the effects of this action on small entities and has determined that the action would not have a significant economic impact on a substantial number of small entities. “Small entities” include small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations under 50,000. This action does not affect any funding distributed under any of the programs administered by FHWA. For these reasons, FHWA certifies that this action would not have a significant economic impact on a substantial number of small entities.

    Unfunded Mandates Reform Act of 1995

    This rule would not impose unfunded mandates as defined by the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48). This rule would not result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $148.1 million or more in any one year (2 U.S.C. 1532).

    Executive Order 13132 (Federalism Assessment)

    This action has been analyzed in accordance with the principles and criteria contained in Executive Order 13132, and FHWA has determined that this action would not have sufficient federalism implications to warrant the preparation of a federalism assessment. The FHWA has also determined that this action would not preempt any State law or State regulation or affect the States' ability to discharge traditional State governmental functions.

    Executive Order 13211 (Energy Effects)

    We have analyzed this action under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use, dated May 18, 2001. We have determined that it is not a significant energy action under that order since it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, a Statement of Energy Effects is not required.

    Executive Order 12372 (Intergovernmental Review)

    Catalog of Federal Domestic Assistance Program Number 20.205, Highway Planning and Construction. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities apply to this program.

    Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501), Federal agencies must obtain approval from the Office of Management and Budget for each collection of information they conduct, sponsor, or require through regulations. The FHWA has determined that this rule does not contain collection of information requirements for the purposes of the PRA.

    Executive Order 12988 (Civil Justice Reform)

    This action meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

    Executive Order 13045 (Protection of Children)

    The FHWA has analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. The FHWA certifies that this action would not cause any environmental risk to health or safety that might disproportionately affect children.

    Executive Order 12630 (Taking of Private Property)

    The FHWA has analyzed this rule under Executive Order 12630, Governmental Actions and Interface with Constitutionally Protected Property Rights. The FHWA does not anticipate that this action would affect a taking of private property or otherwise have taking implications under Executive Order 12630.

    National Environmental Policy Act

    The Agency has analyzed this action for the purpose of the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4347) and has determined that this action would not have any effect on the quality of the environment.

    Regulation Identification Number

    A regulation identification number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN contained in the heading of this document can be used to cross reference this action with the Unified Agenda.

    List of Subjects in 23 CFR Part 658

    Grants program—transportation, Highways and roads, Motor carriers.

    Issued on: June 21, 2018. Brandye L. Hendrickson, Acting Administrator, Federal Highway Administration.

    In consideration of the foregoing, the FHWA amends 23 CFR part 658, as set forth below:

    PART 658—TRUCK SIZE AND WEIGHT, ROUTE DESIGNATIONS—LENGTH, WIDTH AND WEIGHT LIMITATIONS 1. The authority citation for part 658 continues to read as follows: Authority:

    23 U.S.C. 127 and 315; 49 U.S.C. 31111, 31112, and 31114; sec. 347, Pub. L. 108-7, 117 Stat. 419; sec. 756, Pub L. 109-59, 119 Stat. 1219; sec. 115, Pub. L. 109-115, 119 Stat. 2408; 49 CFR 1.48(b)(19) and (c)(19).

    2. Amend Appendix A to Part 658 by adding an entry to the end of the New York portion of the table to read as follows: Appendix A to Part 658—National Network—Federally-Designated Routes Route From To *         *         *         *         *         *         * New York *         *         *         *         *         *         * Sheridan Boulevard (NY 895) I-278 Bruckner Expressway I-95 Cross Bronx Expressway. *         *         *         *         *         *         *
    [FR Doc. 2018-13903 Filed 6-27-18; 8:45 am] BILLING CODE 4910-22-P
    DEPARTMENT OF THE TREASURY Office of Foreign Assets Control 31 CFR Part 560 Iranian Transactions and 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 amending the Iranian Transactions and Sanctions Regulations (ITSR) to implement the President's May 8, 2018 decision to end the United States' participation in the Joint Comprehensive Plan of Action (JCPOA) on Iran's nuclear program, as outlined in National Security Presidential Memorandum-11 of May 8, 2018 (NSPM-11). Specifically, OFAC is amending the ITSR to: Amend the general licenses authorizing the importation into the United States of, and dealings in, Iranian-origin carpets and foodstuffs, as well as related letters of credit and brokering services, to narrow the scope of such general licenses to the wind down of such activities through August 6, 2018; add a new general license to authorize the wind down, through August 6, 2018, of transactions related to the negotiation of contingent contracts for activities eligible for authorization under the Statement of Licensing Policy for Activities Related to the Export or Re-export to Iran of Commercial Passenger Aircraft and Related Parts and Services, which was rescinded following the issuance of NSPM-11; and add a new general license to authorize the wind down, through November 4, 2018, of certain transactions relating to foreign entities owned or controlled by a United States person.

    DATES:

    Effective Date: June 27, 2018.

    FOR FURTHER INFORMATION CONTACT:

    OFAC: 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 on OFAC's website (www.treasury.gov/ofac).

    Background

    On May 8, 2018, the President issued NSPM-11, which set forth his decision to end the United States' participation in the JCPOA. In NSPM-11, the President directed the Secretary of State and the Secretary of the Treasury to immediately begin taking steps to re-impose all United States sanctions lifted or waived in connection with the JCPOA as expeditiously as possible, and in no case later than 180 days from the date of NSPM-11. Today, OFAC is amending the ITSR, 31 CFR part 560, to issue wind-down authorizations for activities involving Iran that were previously authorized by OFAC in connection with the U.S. sanctions relief provided for under the JCPOA. In conjunction with this action, OFAC has revoked General License H and General License I, two authorizations for activities involving Iran that were previously issued by OFAC in connection with the U.S. sanctions relief provided for under the JCPOA.

    On January 16, 2016, OFAC issued General License H to license certain transactions relating to foreign entities owned or controlled by a United States person. At the time of its issuance, General License H was posted on OFAC's website (www.treasury.gov/ofac).

    Also on January 16, 2016, OFAC issued a Statement of Licensing Policy for Activities Related to the Export or Re-export to Iran of Commercial Passenger Aircraft and Related Parts and Services (JCPOA SLP). At the time of its issuance, the JCPOA SLP was posted on OFAC's website (www.treasury.gov/ofac). Following the issuance of NSPM-11, OFAC rescinded the JCPOA SLP and posted an archived version of the JCPOA SLP on its website for reference purposes.

    On January 21, 2016, OFAC amended the ITSR to license the importation into the United States of certain Iranian-origin carpets and foodstuffs, including pistachios and caviar (81 FR 3330). Specifically, OFAC added § 560.534 to the ITSR to authorize by general license the importation into the United States of, and dealings in, certain Iranian-origin foodstuffs and carpets from Iran or a third country. OFAC also added § 560.535 to the ITSR to authorize by general license certain letters of credit and brokering services relating to certain Iranian-origin foodstuffs and carpets.

    On March 24, 2016, OFAC issued General License I to authorize certain transactions related to the negotiation of, and entry into, contingent contracts for activities eligible for authorization under the JCPOA SLP. At the time of its issuance, General License I was posted on OFAC's website (www.treasury.gov/ofac).

    Today, OFAC is amending the ITSR to implement the wind-down authorizations for the above-referenced activities involving Iran that were previously authorized by OFAC pursuant to the ITSR in connection with the U.S. sanctions relief provided for under the JCPOA.

    First, OFAC is amending § 560.534 to narrow the scope of that general license to authorize, through 11:59 p.m. eastern daylight time on August 6, 2018, only the wind down of transactions related to the importation into the United States of, and dealings in, certain Iranian-origin foodstuffs and carpets. U.S. persons will be authorized to engage in all transactions and activities that are ordinarily incident and necessary to the wind down of transactions that were previously authorized under § 560.534. After 11:59 p.m. eastern daylight time on August 6, 2018, no further transactions are authorized under amended § 560.534.

    OFAC is also amending § 560.535 to narrow the scope of that general license to authorize, through 11:59 p.m. eastern daylight time on August 6, 2018, only the wind down of transactions related to letters of credit and brokering services relating to certain Iranian-origin foodstuffs and carpets. U.S. persons will be authorized to engage in all transactions and activities that are ordinarily incident and necessary to the wind down of transactions that were previously authorized under § 560.535. After 11:59 p.m. eastern daylight time on August 6, 2018, no further transactions are authorized under amended § 560.535.

    In addition, OFAC is adding § 560.536 to authorize, through 11:59 p.m. eastern daylight time on August 6, 2018, all transactions and activities that are ordinarily incident and necessary to the wind down of transactions related to the negotiation of contingent contracts for activities that were, at the time of the negotiation, eligible for authorization under the JCPOA SLP. This wind-down authorization enables U.S. persons to wind down, through August 6, 2018, activities that were previously authorized pursuant to General License I. In conjunction with this action, OFAC has revoked General License I and has posted an archived version of General License I on its website (www.treasury.gov/ofac) for reference purposes. After 11:59 p.m. eastern daylight time on August 6, 2018, no further transactions are authorized under § 560.536.

    Finally, OFAC is adding § 560.537 to authorize, through 11:59 p.m. eastern standard time on November 4, 2018, all transactions and activities that are ordinarily incident and necessary to the wind down of transactions relating to foreign entities owned or controlled by a United States person that were previously authorized under General License H. In conjunction with this action, OFAC has revoked General License H and has posted an archived version of General License H on its website (www.treasury.gov/ofac) for reference purposes. After 11:59 p.m. eastern standard time on November 4, 2018, no further transactions are authorized under § 560.537.

    Public Participation

    Because the amendment of the ITSR involves a foreign affairs function, the provisions of Executive Order 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 Executive Order 13771, are inapplicable. Because no notice of proposed rulemaking is required for this rule, the Regulatory Flexibility Act (5 U.S.C. 601-612) does not apply.

    Paperwork Reduction Act

    The collections of information related to the ITSR 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 560

    Administrative practice and procedure, Aircraft, Banks, Banking, Carpet, Civil aviation, Foodstuffs, Iran, Letters of credit.

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

    PART 560—IRANIAN TRANSACTIONS AND SANCTIONS REGULATIONS 1. The authority citation for part 560 continues to read as follows: Authority:

    3 U.S.C. 301; 18 U.S.C. 2339B, 2332d; 22 U.S.C. 2349aa-9; 22 U.S.C. 7201-7211; 31 U.S.C. 321(b); 50 U.S.C. 1601-1651, 1701-1706; Pub. L. 101-410, 104 Stat. 890 (28 U.S.C. 2461 note); Pub. L. 110-96, 121 Stat. 1011 (50 U.S.C. 1705 note); Pub. L. 111-195, 124 Stat. 1312 (22 U.S.C. 8501-8551); Pub. L. 112-81, 125 Stat. 1298 (22 U.S.C. 8513a); Pub. L. 112-158, 126 Stat. 1214 (22 U.S.C. 8701-8795); E.O. 12613, 52 FR 41940, 3 CFR, 1987 Comp., p. 256; E.O. 12957, 60 FR 14615, 3 CFR, 1995 Comp., p. 332; E.O. 12959, 60 FR 24757, 3 CFR, 1995 Comp., p. 356; E.O. 13059, 62 FR 44531, 3 CFR, 1997 Comp., p. 217; E.O. 13599, 77 FR 6659, 3 CFR, 2012 Comp., p. 215; E.O. 13628, 77 FR 62139, 3 CFR, 2012 Comp., p. 314.

    Subpart E—Licenses, Authorizations, and Statements of Licensing Policy 2. Revise § 560.534 to read as follows:
    § 560.534 Winding down of transactions related to the importation into the United States of, and dealings in, certain foodstuffs and carpets.

    (a) Except as provided in paragraphs (b) and (c) of this section, all transactions and activities that are ordinarily incident and necessary to the wind down of the following activities are authorized through 11:59 p.m. eastern daylight time on August 6, 2018:

    (1) The importation into the United States, from Iran or a third country, of the following goods of Iranian origin:

    (i) Foodstuffs intended for human consumption that are classified under chapters 2-23 of the Harmonized Tariff Schedule of the United States; and

    (ii) Carpets and other textile floor coverings and carpets used as wall hangings that are classified under chapter 57 or heading 9706.00.0060 of the Harmonized Tariff Schedule of the United States.

    (2) United States persons, wherever located, engaging in transactions or dealings in or related to the categories of Iranian-origin goods described in paragraph (a)(1) of this section, provided that the transaction or dealing does not involve or relate to goods, technology, or services for exportation, reexportation, sale, or supply, directly or indirectly, to Iran, the Government of Iran, an Iranian financial institution, or any other person whose property and interests in property are blocked pursuant to § 560.211, other than services described in § 560.405 (“Transactions ordinarily incident to a licensed transaction authorized”) and transfers of funds described in § 560.516 (“Transfers of funds involving Iran”).

    (b) This general license does not authorize the importation into the United States of goods that were under seizure or detention by the Department of Homeland Security, as of January 21, 2016, pursuant to Customs regulations or other applicable provisions of law, until any applicable penalties, charges, duties, or other conditions are satisfied. This general license does not authorize the importation into the United States of goods for which forfeiture proceedings have commenced or of goods that have been forfeited to the U.S. Government, other than through U.S. Customs and Border Protection disposition, including by selling at auction.

    (c) Nothing in this section authorizes debits or credits to Iranian accounts, as defined in § 560.320.

    3. Revise § 560.535 to read as follows:
    § 560.535 Winding down of transactions related to letters of credit and brokering services relating to certain foodstuffs and carpets.

    (a) Wind down. Except as provided in paragraph (b) of this section, all transactions and activities that are ordinarily incident and necessary to the wind down of the following activities are authorized through 11:59 p.m. eastern daylight time on August 6, 2018:

    (1) Purchases from Iran or the Government of Iran or certain other blocked persons. United States depository institutions issuing letters of credit in favor of a beneficiary in Iran, the Government of Iran, an Iranian financial institution, or any other person whose property and interests in property are blocked pursuant to § 560.211 to pay for purchases from Iran or the Government of Iran of the categories of Iranian-origin goods described in § 560.534(a)(1), provided that such letters of credit are not advised, negotiated, paid, or confirmed by the Government of Iran, an Iranian financial institution, or any other person whose property and interests in property are blocked pursuant to § 560.211.

    (2) Transactions or dealings in Iranian-origin goods located in third countries, other than purchases from the Government of Iran or certain other blocked persons. United States depository institutions issuing, advising, negotiating, or confirming letters of credit to pay for transactions in or related to Iranian-origin goods described in § 560.534(a)(1) and located in a third-country, other than purchases from the Government of Iran, an Iranian financial institution, or any other person whose property and interests in property are blocked pursuant to § 560.211, provided that such letters of credit are not issued, advised, negotiated, paid, or confirmed by the Government of Iran, an Iranian financial institution, or any other person whose property and interests in property are blocked pursuant to § 560.211.

    (3) Brokering. United States persons, wherever located, acting as brokers for the purchase or sale of the categories of Iranian-origin goods described in § 560.534(a)(1), provided that the goods are not for exportation, reexportation, sale, or supply, directly or indirectly, to Iran, the Government of Iran, an Iranian financial institution, or any other person whose property and interests in property are blocked pursuant to § 560.211.

    (b) Iranian accounts. Nothing in this section authorizes debits or credits to Iranian accounts, as defined in § 560.320.

    Note 1 to § 560.535:

    See §§ 560.304 and 560.313 for information relating to individuals and entities that are included within the definition of the term Government of Iran and § 560.324 regarding entities included within the definition of the term Iranian financial institution. See § 560.516 for information relating to authorized transfers to Iran by U.S. depository institutions relating to licensed transactions.

    4. Add § 560.536 to subpart E to read as follows:
    § 560.536 Winding down of transactions related to the negotiation of contingent contracts for activities eligible for authorization under the Statement of Licensing Policy for Activities Related to the Export or Re-export to Iran of Commercial Passenger Aircraft and Related Parts and Services.

    (a) All transactions and activities that are ordinarily incident and necessary to the wind down of the following activities are authorized through 11:59 p.m. eastern daylight time on August 6, 2018: U.S. persons engaging in all transactions ordinarily incident to the negotiation of contingent contracts for activities that were, at the time of the negotiation, eligible for authorization under the now-rescinded Statement of Licensing Policy for Activities Related to the Export or Re-export to Iran of Commercial Passenger Aircraft and Related Parts and Services (JCPOA SLP).

    Note 1 to paragraph (a):

    OFAC has posted an archived copy of the JCPOA SLP on its website (www.treasury.gov/ofac) for reference purposes.

    (b) Nothing in paragraph (a) of this section authorizes the exportation, reexportation, sale, or supply, directly or indirectly, of any goods or technology to Iran, the Government of Iran, an Iranian financial institution, or any other person whose property and interests in property are blocked pursuant to § 560.211.

    (c) For purposes of this section, the term “contingent contract” means a contract where the performance of the contract is made expressly contingent upon the issuance of a specific license by the Office of Foreign Assets Control authorizing the activities to be performed. For purposes of this section, the term “contingent contract” includes executory contracts, executory pro forma invoices, agreements in principle, executory offers capable of acceptance such as bids or proposals in response to public tenders, binding memoranda of understanding, or any other similar agreement.

    5. Add § 560.537 to subpart E to read as follows:
    § 560.537 Winding down of transactions relating to foreign entities owned or controlled by a U.S. person.

    (a) Except as provided in paragraph (c) of this section, all transactions and activities that are ordinarily incident and necessary to the wind down of the following activities are authorized through 11:59 p.m. eastern standard time on November 4, 2018: an entity owned or controlled by a United States person and established or maintained outside the United States (a “U.S.-owned or -controlled foreign entity”) engaging in transactions, directly or indirectly, with the Government of Iran or any person subject to the jurisdiction of the Government of Iran that would otherwise be prohibited by § 560.215.

    (b) All transactions and activities that are ordinarily incident and necessary to the wind down of the following activities are authorized through 11:59 p.m. eastern standard time on November 4, 2018: A United States person engaging in the following:

    (1) Activities related to the establishment or alteration of operating policies and procedures of a United States entity or a U.S.-owned or -controlled foreign entity, to the extent necessary to allow a U.S.-owned or -controlled foreign entity to engage in transactions authorized in paragraph (a) of this section; and

    (2) Activities to make available to those foreign entities that the U.S. person owns or controls any automated and globally integrated computer, accounting, email, telecommunications, or other business support system, platform, database, application, or server necessary to store, collect, transmit, generate, or otherwise process documents or information related to transactions authorized in paragraph (a) of this section.

    Note 1 to paragraph (b):

    See § 560.208 for prohibitions on facilitation by United States persons, which remain in effect, with the exception of activities authorized in paragraph (b) of this section.

    (c) Paragraph (a) of this section does not authorize transactions involving:

    (1) The exportation, reexportation, sale, or supply, directly or indirectly, from the United States of any goods, technology, or services prohibited by § 560.204 or the reexportation from a third country of any goods, technology, or services prohibited by § 560.205;

    (2) Any transfer of funds to, from, or through a United States depository institution or a United States-registered broker or dealer in securities;

    (3) Any person on OFAC's list of Specially Designated Nationals and Blocked Persons (SDN List), or any activity that would be prohibited by any part of 31 CFR chapter V other than part 560 if engaged in by a United States person or in the United States;

    (4) Any person identified on the List of Foreign Sanctions Evaders pursuant to Executive Order 13608;

    (5) Any activity involving any item (including information) subject to the Export Administration Regulations, 15 CFR parts 730 through 774 (EAR), that is prohibited by, or otherwise requires a license under, part 744 of the EAR; or participation in any transaction involving a person whose export privileges have been denied pursuant to part 764 or 766 of the EAR, without authorization from the Department of Commerce;

    (6) Any military, paramilitary, intelligence, or law enforcement entity of the Government of Iran, or any official, agent, or affiliate thereof;

    (7) Any activity that is sanctionable under Executive Order 12938 or 13382 (relating to Iran's proliferation of weapons of mass destruction and their means of delivery, including ballistic missiles); Executive Order 13224 (relating to international terrorism); Executive Order 13572 or 13582 (relating to Syria); Executive Order 13611 (relating to Yemen); or Executive Order 13553 or 13606, or section 2 or 3 of Executive Order 13628 (relating to Iran's commission of human rights abuses against its citizens); or

    (8) Any nuclear activity involving Iran that is subject to the procurement channel established pursuant to paragraph 16 of the United Nations Security Council Resolution 2231 (2015) and Section 6 of Annex IV to the Joint Comprehensive Plan of Action of July 14, 2015 and that has not been approved through that procurement channel process.

    (d)(1) For purposes of paragraph (b)(2) of this section, the term “automated” refers to a computer, accounting, email, telecommunications, or other business support system, platform, database, application, or server that operates passively and without human intervention to facilitate the flow of data between and among the United States person and its owned or controlled foreign entities.

    (2) For purposes of paragraph (b)(2) of this section, the term “globally integrated” refers to a computer, accounting, email, telecommunications, or other business support system, platform, database, application, or server that is available to, and in general use by, the United States person's global organization, including the United States person and its owned or controlled foreign entities.

    (3) Paragraph (b)(2) of this section does not authorize the use of any automated computer, accounting, email, telecommunications, or other business support system, platform, database, application, or server in connection with any transfer of funds to, from, or through a United States depository institution or a United States-registered broker or dealer in securities.

    Dated: June 25, 2018. Andrea Gacki, Acting Director, Office of Foreign Assets Control.
    [FR Doc. 2018-13939 Filed 6-27-18; 8:45 am] BILLING CODE 4810-AL-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 100 [Docket Number USCG-2018-0316] RIN 1625-AA08 Special Local Regulation; Gulf of Mexico; Sarasota, FL AGENCY:

    Coast Guard, DHS.

    ACTION:

    Temporary final rule.

    SUMMARY:

    The Coast Guard is establishing a special local regulation on the waters of the Gulf of Mexico, in the vicinity of Lido Beach, Florida, during the 34th Annual Sarasota Powerboat Grand Prix High Speed Boat Race. Approximately 35 boats and jet skis, traveling at speeds in excess of 100 miles per hour are expected to participate. Additionally, it is anticipated that 300 spectator vessels will be present along the race course. The special local regulation is necessary to protect the safety of race participants, participant vessels, spectators, and the general public on navigable waters of the United States during the event. The special local regulation will establish an enforcement area where all persons and vessels, except those persons and vessels participating in the high speed boat races, are prohibited from entering, transiting through, anchoring in, or remaining within without obtaining permission from the Captain of the Port St. Petersburg or a designated representative.

    DATES:

    This rule is effective daily from 8 a.m. until 6 p.m. on June 29, 2018 through July 1, 2018.

    ADDRESSES:

    To view documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type USCG-2018-0316 in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rule.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this rule, call or email Marine Science Technician First Class Michael Shackleford, Sector St. Petersburg Prevention Department, Coast Guard; telephone (813) 228-2191, email [email protected].

    SUPPLEMENTARY INFORMATION:

    I. Table of Abbreviations CFR Code of Federal Regulations DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking Pub. L. Public Law § Section U.S.C. United States Code COTP Captain of the Port II. Background Information and Regulatory History

    The Coast Guard is establishing this special local regulation without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable. Insufficient time remains to publish an NPRM and to receive public comments, as the Sarasota Powerboat Grand Prix event will occur before the rulemaking process would be completed. Because of the dangers associated with high speed boat races, the regulation is necessary to provide for the safety of event participants, spectators, and vessels transiting the event area. For those reasons, it would be impracticable to publish an NPRM.

    Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register. For the reason discussed above, the Coast Guard finds that good cause exists.

    III. Legal Authority and Need for Rule

    The legal basis for this rule is the Coast Guard's authority to establish special local regulations: 33 U.S.C. 1233. The purpose of the rule is to provide for the safety of life on navigable waters of the United States during the Sarasota Powerboat Grand Prix High Speed Boat Race.

    IV. Discussion of the Rule

    This rule establishes a special local regulation that will encompass certain waters of the Gulf of Mexico, Lido Beach, Florida. The special local regulation will be enforced daily from 8 a.m. to 6 p.m. on June 29, 2018 through July 1, 2018. The special local regulation will establish an enforcement area where all persons and vessels, except those persons and vessels participating in the high speed boat races, are prohibited from entering, transiting through, anchoring in, or remaining within without obtaining permission from the COTP St. Petersburg or a designated representative.

    Persons and vessels may request authorization to enter, transit through, anchor in, or remain within the regulated area by contacting the Captain of the Port (COTP) St. Petersburg by telephone at (727) 824-7506, or a designated representative via VHF radio on channel 16. If authorization to enter, transit through, anchor in, or remain within the regulated area is granted by the COTP St. Petersburg or a designated representative, all persons and vessels receiving such authorization must comply with the instructions of the COTP St. Petersburg or a designated representative. The Coast Guard will provide notice of the special local regulation by Local Notice to Mariners and/or Broadcast Notice to Mariners.

    V. Regulatory Analyses

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

    A. Regulatory Planning and Review

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

    This regulatory action determination is based on: (1) The special local regulation will be enforced for only ten hours on two days; (2) although persons and vessels may not enter, transit through, anchor in, or remain within the regulated area without authorization from the COTP St. Petersburg or a designated representative, they may operate in the surrounding area during the enforcement period; (3) persons and vessels may still enter, transit through, anchor in, or remain within the regulated area or anchor in the sponsor's designated spectator area(s), during the enforcement period if authorized by the COTP St. Petersburg or a designated representative; and (4) the Coast Guard will provide advance notification of the special local regulation to the local maritime community by Local Notice to Mariners and/or Broadcast Notice to Mariners.

    B. Impact on Small Entities

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

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

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

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

    C. Collection of Information

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

    D. Federalism and Indian Tribal Governments

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

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

    E. Unfunded Mandates Reform Act

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

    F. Environment

    We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a special local regulation issued in conjunction with a regatta or marine parade. It is categorically excluded from further review under paragraph L61 of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES.

    G. Protest Activities

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

    List of Subjects in 33 CFR Part 100

    Marine safety, Navigation (water), Reporting and recordkeeping requirements, Waterways.

    For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 100 as follows:

    PART 100—SAFETY OF LIFE ON NAVIGABLE WATERS 1. The authority citation for part 100 continues to read as follows: Authority:

    33 U.S.C. 1233; 33 CFR 1.05-1.

    2. Add § 100.35T07-0316 to read as follows:
    § 100.35T07-0316 Special Local Regulations; Sarasota Powerboat Grand Prix, Gulf of Mexico; Lido Beach, FL.

    (a) Location. The following regulated area is established as a special local regulation. All coordinates are North American Datum 1983.

    (1) Enforcement area. All waters of the Gulf of Mexico contained within the following points: 27°18′44″ N, 82°36′14″ W, thence to position 27°19′09″ N, 82°35′13″ W, thence to position 27°17′42″ N, 82°34′00″ W, thence to position 27°16′43″ N, 82°34′49″ W, thence back to the original position, 27°18′44″ N, 82°36′14″ W.

    (b) Definition. The term “designated representative” means Coast Guard Patrol Commanders, including Coast Guard coxswains, petty officers, and other officers operating Coast Guard vessels, and Federal, state, and local officers designated by or assisting the COTP St. Petersburg in the enforcement of the regulated areas.

    (c) Regulations. (1) All non-participant persons and vessels are prohibited from entering, transiting through, anchoring in, or remaining within the race area unless an authorized by the COTP St. Petersburg or a designated representative.

    (2) Designated representatives may control vessel traffic throughout the enforcement area as determined by the prevailing conditions.

    (3) Persons and vessels may request authorization to enter, transit through, anchor in, or remain within the regulated areas by contacting the COTP St. Petersburg by telephone at (727) 824-7506, or a designated representative via VHF radio on channel 16. If authorization is granted, all persons and vessels receiving such authorization must comply with the instructions of the COTP St. Petersburg or a designated representative.

    (4) The Coast Guard will provide notice of the regulated area by Local Notice to Mariners and/or Broadcast Notice to Mariners.

    (d) Enforcement period. This rule will be enforced daily from 8 a.m. to 6 p.m. on June 29, 2018 through July 1, 2018.

    H.L. Najarian, Captain, U.S. Coast Guard, Captain of the Port Saint Petersburg.
    [FR Doc. 2018-13912 Filed 6-27-18; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 100 [Docket Number USCG-2018-0340] RIN 1625-AA08 Special Local Regulation; Corpus Christi Bay, Corpus Christi, TX AGENCY:

    Coast Guard, DHS.

    ACTION:

    Temporary final rule.

    SUMMARY:

    The Coast Guard is establishing a temporary special local regulation for certain navigable waters of Corpus Christi Bay. This action is necessary to protect marine event participants, spectators and transiting vessels on these navigable waters during the Youth World's Championship regatta held at the Corpus Christi Yacht Club. Entry of vessels or persons into this zone is prohibited unless authorized by the Captain of the Port Sector Corpus Christi or designated representative.

    DATES:

    This rule is effective from 7 a.m. on July 14, 2018 through 3 p.m. on July 21, 2018.

    ADDRESSES:

    To view documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type USCG-2018-0340 in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rule.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this rule, call or email Petty Officer Kevin Kyles, Waterways Management Division, U.S. Coast Guard; telephone 361-939-5125, email [email protected]

    SUPPLEMENTARY INFORMATION: I. Table of Abbreviations CFR Code of Federal Regulations COTP Captain of the Port Sector Corpus Christi DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking § Section U.S.C. United States Code II. Background Information and Regulatory History

    The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(3)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it would be impracticable. This safety zone must be established by July 14, 2018 and we lack sufficient time to provide a reasonable comment period and then consider those comments before issuing this rule. The NPRM process would delay the establishment of the special local regulation until after the scheduled date of the regatta and compromise public safety.

    Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register. Delaying the effective date of this rule would be contrary to the public interest because immediate action is necessary to ensure the safety of persons and vessels during the regatta.

    III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 33 U.S.C. 1233. The Captain of the Port Sector Corpus Christi (COTP) has determined that potential hazards associated with the vessel traffic occurring on July 14, 2018 through July 21, 2018 will be a safety concern for participants within the boating course. Potential hazards include risk of injury or death resulting from near or actual contact among participant vessels and spectator vessels or waterway users if normal vessel traffic were to interfere with the event. The purpose of this rule is to ensure safety of participants, spectators, and transiting vessels in the regulated area before, during, and after the Youth World's Championship regatta.

    IV. Discussion of the Rule

    This rule establishes a temporary special local regulation from 6:15 a.m. through 3 p.m. each day from July 14, 2018 through July 21, 2018 in Corpus Christi Bay, approximately 3,000 feet east of People's Street T-Head in Corpus Christi, TX. The regatta will be inside a rectangular area with the most northwestern point located at 27°47′31″ N, 97°22′33.05″ W, most northeastern point located at 27°47′29.46″ N, 97°19′44.26″ W, most southeastern point located at 27°46′12.06″ N, 97°19′44.78″ W, and the most southwestern located at 27°46′09.55″ N, 97°22′28.78″ W. The duration of the special local regulation is intended to protect the public from potential navigation hazards before, during, and after the event. No vessel or person is permitted to enter the regulated area without obtaining permission from the COTP or a designated representative. A designated representative may be a Patrol Commander (PATCOM). The PATCOM will be aboard either a Coast Guard or Coast Guard Auxiliary vessel. The PATCOM may be contacted on Channel 16 VHF-FM (156.8 MHz) by the call sign “PATCOM”.

    All persons and vessels not registered with the sponsor as participants or official patrol vessels are considered spectators. The “official patrol vessels” consist of any Coast Guard, state, or local law enforcement and sponsor provided vessels assigned or approved by the COTP to patrol the regulated area.

    Spectator vessels desiring to enter, transit through or within, or exit the regulated area may do so only with permission from the COTP or a designated representative, and when permitted, must operate at a minimum safe navigation speed in a manner which will not endanger participants in the regulated area or any other vessels. No spectator vessel shall anchor, block, loiter, or impede the through transit of participants or official patrol vessels in the regulated area during the effective dates and times, unless cleared for entry by or through an official patrol vessel. Any spectator vessel may anchor outside the regulated area, but may not anchor in, block, or loiter in a navigable channel.

    The COTP or a designated representative may forbid and control the movement of all vessels in the regulated area. When hailed or signaled by an official patrol vessel, a vessel shall come to an immediate stop and comply with the directions given. Failure to do so may result in expulsion from the area, citation for failure to comply, or both.

    The COTP or a designated representative may terminate the event or the operation of any vessel at any time it is deemed necessary for the protection of life or property. The COTP or a designated representative can terminate enforcement of the special local regulations at the conclusion of the event.

    The COTP or a designated representative would inform the public of the enforcement times for this safety zone through Broadcast Notices to Mariners (BNMs), Local Notices to Mariners (LNMs), and/or Marine Safety Information Bulletins (MSIBs) as appropriate.

    V. Regulatory Analyses

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

    A. Regulatory Planning and Review

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

    This regulatory action determination is based on size, location, duration, and time-of-day for the special local regulation. Vessel traffic will be able to safely navigate around the regulated area, which will impact only a small portion of the Laguna Madre for 3 hours and 15 minutes on one day. Moreover, the Coast Guard will issue Broadcast Notices to Mariners (BNMs) via VHF-FM marine channel 16 about the regulation so that waterway users may plan accordingly for transits during this restriction, and the rule allows vessels to seek permission from the COTP or a designated representative to enter the regulated area.

    B. Impact on Small Entities

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

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

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

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

    Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section. The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

    C. Collection of Information

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

    D. Federalism and Indian Tribal Governments

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

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

    E. Unfunded Mandates Reform Act

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

    F. Environment

    We have analyzed this rule under Department of Homeland Security Directive 023-01 and Commandant Instruction M16475.1D, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule is a special local regulation that limits daily access to certain navigable waters of Corpus Christi Bay over eight days. Normally such actions are categorically excluded from further review under paragraph L61 of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A preliminary Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES.

    G. Protest Activities

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

    List of Subjects in 33 CFR Part 100

    Marine safety, Navigation (water), Reporting and recordkeeping requirements, Waterways.

    For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 100 as follows:

    PART 100—SAFETY OF LIFE ON NAVIGABLE WATERS 1. The authority citation for part 100 continues to read as follows: Authority:

    33 U.S.C. 1233; 33 CFR 1.05-1.

    2. Add § 100.35T08-0340 to read as follows:
    § 100.35T08-0340 Special Local Regulation; Corpus Christi Bay, Corpus Christi, TX.

    (a) Location. The following area is a special local regulation: All navigable waters inside approximate rectangular area from with the most northwestern point located at 27°47′31″ N, 97°22′33.05″ W, the most northeastern point being located at 27°47′29.46″ N, 97°19′44.26″ W, the most southeastern point located at 27°46′12.06″ N, 97°19′44.78″ W, and the most southwestern located at 27°46′09.55″ N, 97°22′28.78″ W, in Corpus Christi Bay, approximately 3,000 feet east of People's Street T-Head in Corpus Christi, TX.

    (b) Effective period. This section is effective from 6:15 a.m. on July 14, 2018 through 3 p.m. on July 21, 2018.

    (c) Enforcement period. This section will be enforced from 6:15 a.m. through 3 p.m. during each day of the effective period.

    (d) Regulations. (1) In accordance with the general regulations in § 100.35 of this part, entry into this zone is prohibited unless authorized by the Captain of the Port Sector Corpus Christi (COTP) or a designated representative. A designated representative may be a Patrol Commander (PATCOM). The PATCOM may be aboard either a Coast Guard or Coast Guard Auxiliary vessel. The Patrol Commander may be contacted on Channel 16 VHF-FM (156.8 MHz) by the call sign “PATCOM”.

    (2) All persons and vessels not registered with the sponsor as participants or official patrol vessels are considered spectators. The “official patrol vessels” consist of any Coast Guard, state, or local law enforcement and sponsor provided vessels assigned or approved by the COTP or a designated representative to patrol the regulated area.

    (3) Spectator vessels desiring to transit the regulated area may do so only with prior approval of the COTP or a designated representative and when so directed by that officer will be operated at a minimum safe navigation speed in a manner which will not endanger participants in the regulated area or any other vessels.

    (4) No spectator vessel shall anchor, block, loiter, or impede the through transit of participants or official patrol vessels in the regulated area during the effective dates and times, unless cleared for entry by or through an official patrol vessel.

    (5) Spectator vessels may anchor outside the regulated area, but may not anchor in, block, or loiter in a navigable channel.

    (6) The COTP or a designated representative may forbid and control the movement of all vessels in the regulated area. When hailed or signaled by an official patrol vessel, a vessel shall come to an immediate stop and comply with the directions given. Failure to do so may result in expulsion from the area, citation for failure to comply, or both.

    (7) The COTP or a designated representative may terminate the event or the operation of any vessel at any time it is deemed necessary for the protection of life or property.

    (8) The COTP or a designated representative will terminate enforcement of the special local regulations at the conclusion of the event.

    (d) Information broadcasts. The COTP or a designated representative will inform the public of the enforcement times and date for this safety zone through Broadcast Notices to Mariners (BNMs), Local Notices to Mariners (LNMs), and/or Marine Safety Information Bulletins (MSIBs) as appropriate.

    Dated: June 21, 2018. E.J. Gaynor Captain, U.S. Coast Guard, Captain of the Port Sector Corpus Christi.
    [FR Doc. 2018-13898 Filed 6-27-18; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 110 [Docket Number USCG-2017-1125] RIN 1625-AA01 Anchorage Grounds; Saint Lawrence Seaway, Cape Vincent, New York AGENCY:

    Coast Guard, DHS.

    ACTION:

    Final rule.

    SUMMARY:

    The Coast Guard is establishing, at the request of the Saint Lawrence Seaway Development Corporation, two separate anchorage grounds, Carleton Island Anchorage and Tibbetts Point Anchorage, near Cape Vincent, New York. The Federal Anchorage Ground designations will enable a pilot to disembark a safely anchored vessel which will help reduce pilot fatigue, increase pilot availability, and reduce costs incurred by vessels transiting the Seaway.

    DATES:

    This rule is effective July 30, 2018.

    ADDRESSES:

    To view documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type USCG-2017-1125 in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rule.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this rule, call or email Lieutenant Jason Radcliffe, Ninth District, Waterways Operations, U.S. Coast Guard; telephone 216-902-6060, email [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Table of Abbreviations AIS Automatic identification system CFR Code of Federal Regulations DHS Department of Homeland Security NPRM Notice of proposed rulemaking § Section U.S.C. United States Code II. Background Information and Regulatory History

    The Coast Guard is establishing two anchorage grounds, one in the vicinity of Carleton Island, New York, and the second near Tibbetts Point, New York. Each area has historically been used as an anchorage and the Saint Lawrence Seaway Development Corporation, at the request of its waterway users, has requested each area to be officially designated as Federal Anchorage Grounds.

    Without this designation, pilots who anchor a ship in the respective areas are unable to disembark during sustained delay periods which hinder compliance with rest requirements and complicate pilot availability and logistics for other vessels. On February 2, 2018, the Coast Guard published a notice of proposed rulemaking (NPRM) titled Saint Lawrence Seaway Anchorages (83 FR 4882). The NPRM discussed the need for the rule and invited the public to comment on the proposed regulatory action related to this Anchorage Grounds establishment. During the comment period that ended May 3, 2018, we received two comments. One comment was not relevant to the proposed rule and the other comment expressed support of the proposal.

    III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 33 U.S.C. 471, 1221 through 1236, 2071; 33 CFR 1.05-1; Department of Homeland Security Delegation No. 0170.1.

    The Coast Guard recognizes the need to establish two anchorage grounds, one in the vicinity of Carleton Island, New York and the second near Tibbetts Point, New York. Each area has historically been used as an anchorage and the Saint Lawrence Seaway Development Corporation, at the request of its waterway users, has requested each area to be officially designated as Federal Anchorage Grounds.Without this designation, pilots who anchor a ship in the respective areas are unable to disembark during sustained delay periods which hinder compliance with rest requirements and complicate pilot availability and logistics for other vessels.

    IV. Discussion of Comments, Changes, and the Rule

    As noted above, we received two comments on our NPRM published February 2, 2018. We made no changes to the regulatory text based on these comments, but we did clarify that our reference to the Captain of the Port was to the Captain of the Port Buffalo.

    This rule establishes two new anchorage areas to be known as Carleton Island Anchorage and Tibbetts Point Anchorage.

    The Carleton Island Anchorage will be located just northeast and adjacent to Carleton Island and Millen Bay. The boundaries of Carleton Island Anchorage are presented in the regulatory text at the end of this document. The anchorage will be approximately .75 square miles. Carleton Island Anchorage is primarily intended for use by up-bound inland or ocean going bulk freight and tank ships, towing vessels and barges that need to anchor and wait for the availability of a Lake Ontario Pilot. Under this rule no anchors would be allowed to be placed in the channel and no portion of the hull or rigging will be allowed to extend outside the limits of the anchorage area.

    The Tibbetts Point Anchorage will be located just west and adjacent to Tibbetts Point and Fuller Bay. The boundaries of Tibbett's Point Anchorage are presented in the regulatory text at the end of this document. The anchorage will be approximately 1.5 square miles. Tibbett's Point Anchorage is primarily intended for use by down-bound inland or ocean going bulk freight and tank ships, towing vessels and barges that need to anchor and wait for the availability of a River Pilot. Under this rule no anchors will be allowed to be placed in the channel and no portion of the hull or rigging will be allowed to extend outside the limits of the anchorage area.

    V. Regulatory Analyses

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

    A. Regulatory Planning and Review

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

    This regulatory action determination is based on the location and size of the anchorage grounds, as well as the historical automatic identification system (AIS) data. The impacts on routine navigation are expected to be minimal because the anchorage grounds are located outside the navigational channel. When not occupied, vessels would be able to maneuver in, around and through the anchorage.

    B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard received no comments from the Small Business Administration on this rulemaking. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

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

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

    C. Collection of Information

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

    D. Federalism and Indian Tribal Governments

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

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

    E. Unfunded Mandates Reform Act

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

    F. Environment

    We have analyzed this rule under Department of Homeland Security Directive 023-01 and Commandant Instruction M16475.1D, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves the establishment of permanent anchorages near Carleton Island and Tibbetts Point, New York. It is categorically excluded from further review under paragraph L59(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES.

    List of Subjects in 33 CFR Part 110

    Anchorage grounds.

    For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 110 as follows:

    PART 110—ANCHORAGE REGULATIONS 1. The authority citation for part 110 continues to read as follows: Authority:

    33 U.S.C. 471, 1221 through 1236, 2071; 33 CFR 1.05-1; Department of Homeland Security Delegation No. 0170.1.

    2. Add § 110.209 to read as follows:
    § 110.209 Saint Lawrence Seaway Anchorages, New York.

    (a) Carleton Island Anchorage; Saint Lawrence River, Cape Vincent, New York—(1) Carleton Island Anchorage Area. The waters bounded by a line connecting the following points, beginning at 44°11′57.11″ N, 076°14′04.62″ W; thence to 44°11′21.80″ N, 076°14′05.77″ W; thence to 44°11′34.07″ N, 076°15′49.57″ W; 44°11′35.35″ N, 076°16′47.50″ W; 44°11′43.49″ N, 076°16′48.00″ W; 44°11′57.11″ N, 076°14′04.62″ W and back to the beginning point. These coordinates are based on WGS 84.

    (2) Tibbett's Island Anchorage Area. The waters bounded by a line connecting the following points, beginning at 44°05′20.27″ N, 076°23′25.78″ W; thence to 44°05′21.85″ N, 076°22′40.97″ W; thence to 44°04′34.08″ N, 076°23′09.98″ W; 44°04′07.72″ N, 076°23′33.76″ W; 44°04′32.78″ N, 076°24′43.80″ W; 44°05′44.37″ N, 076°23′56.29″ W; 44°05′20.27″ N, 076°23′25.78″ W and back to the beginning point. These coordinates are based on WGS 84.

    (b) The regulations. (1) Anchors must not be placed in the Saint Lawrence Seaway shipping channel. No portion of the hull or rigging may extend outside the limits of the anchorage area.

    (2) No vessel may occupy any general anchorage described in paragraph (a) of this section for a period longer than 10 days unless approval is obtained from the Captain of the Port Buffalo (COTP) for that purpose.

    (3) The COTP, or authorized representative, may require vessels to depart from the Anchorages described in paragraph (a) of this section before the expiration of the authorized or maximum stay. The COTP, or authorized representative, will provide at least 12-hour notice to a vessel required to depart the anchorages.

    Dated: June 25, 2018. J.M. Nunan, Rear Admiral, U.S. Coast Guard, Commander, Ninth Coast Guard District.
    [FR Doc. 2018-13928 Filed 6-27-18; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket Number USCG-2018-0105] RIN 1625-AA87 Security Zone; Seattle's Seafair Fleet Week Moving Vessels, Puget Sound, WA AGENCY:

    Coast Guard, DHS.

    ACTION:

    Final rule.

    SUMMARY:

    The Coast Guard is amending its Seattle Seafair Fleet Week Moving Vessel Security Zone regulation. In response to public comment, we are not finalizing our proposal to remove existing language about a published notice identifying the designated participating vessels. However, last minute changes to the participating vessels in the Parade of Ships during Fleet Week may cause the published notice to become outdated after publication. In that case the Coast Guard will use actual notice to enforce a security zone around participating vessels, as well as other methods of informing the public about changes, and we have amended the regulation to reflect the possibility of changes.

    DATES:

    This rule is effective July 30, 2018.

    ADDRESSES:

    To view documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type USCG-2018-0105 in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rule.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this rule, call or email Petty Officer Zachary Spence, Sector Puget Sound Waterways Management Branch, U.S. Coast Guard; telephone 206-217-6051, email [email protected]

    SUPPLEMENTARY INFORMATION: I. Table of Abbreviations CFR Code of Federal Regulations DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking § Section U.S.C. United States Code II. Background Information and Regulatory History

    On July 10, 2012 (77 FR 40521), the Coast Guard Captain of the Port, Sector Puget Sound, published a final rule that became effective Aug. 1, 2012; the Seattle's Seafair Fleet Week Moving Vessels security zone. On April 6, 2018, the Coast Guard published a notice of proposed rulemaking (NPRM) titled Security Zone; Seattle's Seafair Fleet Week Moving Vessels, Puget Sound, WA (83 FR 14801) in which we proposed to amend the current final rule. There we stated why we issued the NPRM, and invited comments on our proposed regulatory action. During the comment period that ended May 21, 2018, we received three written submissions.

    III. Legal Authority and Need for Rule

    The Coast Guard is amending its Seattle Seafair Fleet Week Moving Vessel Security Zone regulation, 33 CFR 165.1333, under authority in 33 U.S.C. 1231. In past years, some of the designated participating vessels which required the security zone have been rescheduled at the last moment due to operational needs, and as a result, the changes precluded the Coast Guard from providing sufficient notice of which vessels are participating in the parade of ships in the Federal Register. The amended regulation will allow the Coast Guard to publish dates and times of the Parade of Ships in the Federal Register and Local Notice to Mariners, and of the designated participating vessels it is aware of at the time it issues the notice, and provide that actual notice will be used to enforce the security zone around any vessels designated after the notice has been issued. Further, for the reasons discussed above, the amended regulation will require that the Coast Guard publish the above information before the beginning of the Parade of Ships instead of the three days currently provided for in the regulation. The names of the designated vessels will also be published in a Broadcast Notice to Mariners.

    IV. Discussion of Comments, Changes, and the Rule

    As noted above, we received three written submissions on our NPRM published April 6, 2018. The first commenter requested to stop the Russian and Chinese fishing ships from fishing within the U.S. Exclusive Economic Zone. As this comment does not relate to this rulemaking, no response is required. The second commenter requested the Agency stop wasting water from several of the Snake River hydroelectric dams that provide power and water for the navigation of vessel traffic for the region. This comment also does not relate the subject matter of this rulemaking and no response is required.

    The third commenter provided a number of different concerns, each of which we address in turn as follows.

    First, the commenter provided that the Thirteenth Coast Guard District failed to contact “interested community groups” as recommended by the Office for Civil Rights and Civil Liberties, U.S. Department of Homeland Security, prior to implementation of exclusion zones. As noted by the commenter, the Coast Guard published a notice of proposed rulemaking in the Federal Register, providing notice of a proposed change of the notice of an annual security zone.

    Second, the commenter provided that the Parade of Ships fails to comply with 33 CFR 100.15, which details the procedures for submission of a marine event permit, and that the event had never been conducted in a lawful manner. The Coast Guard has determined that in light of the existing regulations in place, such as the Naval Vessel Protection Zone in 33 CFR 165.2030, and the subject regulation, 33 CFR 165.1333, the Parade of Ships will not introduce extra or unusual hazards to the safety of life on the navigable waters of the United States such that a marine event permit would be required under 33 CFR 100.15. The commenter provided a discussion on the information required in a marine event permit application. As the discussion on what is required in a marine event permit does not relate to the proposed amendments to 33 CFR 165.1333, no further response is required.

    Third, the commenter provided that proposed revisions to 33 CFR 165.1333 are actually due to previous Coast Guard errors instead of changing schedules, because it appears from prior correspondence with the Coast Guard that the Coast Guard may have mistakenly left out U.S. Navy vessels from the applicability of this zone. Naval Vessel Protection Zones under 33 CFR 165.2030 apply to large U.S. Navy vessels, which have historically participated in the Parade of Ships. As stated in the NPRM for the regulatory change we proposed, the reason why this rule is being amended is due to last minute changes in the vessels participating in the Parade of Ships due to operational needs. Based on this comment, however, we have decided to make a change from our proposed amendment to § 165.1333. We are amending § 165.1333(a) to explain that the Coast Guard may use actual notice to enforce security zones around participating vessels not included in the notice, in situations when due to operational needs there is a change after the notice has been issued and the COTP needs to add a vessel to the list of designated participating vessels. In those situations the Coast Guard will also announce any such changes in the Local Notice to Mariners. The reference to actual notice reflects existing authorities and enforcement practices, but we hope that stating it in the Code of Federal Regulations will be helpful. The change is within the scope of the proposed rule, which envisioned using actual notice for security zones around all participating vessels.

    The COTP does not designate large U.S. Navy vessels—those more than 100 feet in length overall—that participate in the parade as designated participating vessels because persons who violate the naval vessel protection zone around those vessels, which are issued under 14 U.S.C. 91 authority, are already subject to penalties under 33 U.S.C. 1232. Whether a large U.S. Navy vessels is in Parade of Ships or not, it will be surrounded by a naval vessel protection zone and persons should comply with the provisions of that regulation.

    Fourth, the commenter provided that Broadcast Notice to Mariners before and during the event is insufficient notice. The proposed regulatory change provides that the security zones will be enforced with actual notice which meets the standard set in 5 U.S.C. 552(a)(1). The Coast Guard considered the commenter's concerns about receiving Broadcast Notice to Mariners and, in response we revised the regulatory text to include an email and a phone number which members of the public can contact the Captain of the Port to receive an updated list of participating vessels. Furthermore, the Coast Guard actively conducts outreach to those participating in planned First Amendment activities related to the Parade of Ships so as to ensure the safety of all participants, and that participants of such activities are aware of all means to obtain the names of the vessels to which regulations apply.

    Fifth, the commenter provided that an accurate list of vessels in the Parade of Ships is essential for vessel operators engaged in First Amendment activities. The Coast Guard concurs with this comment, but has pointed to the problem of last-minute changes making this objective difficult to achieve. Instead of eliminating the notice identifying participating vessels, as proposed, we will use actual notice to enforce security zones around vessels designated after the notice has been issued. In addition to actual notice, the Coast Guard will broadcast the names of the vessels to which the security zone applies using a Broadcast Notice to Mariners.

    Sixth, the commenter provided that the Coast Guard's fear of free speech activities is irrational. The Coast Guard's rule amends the manner in which notice will be provided as to which vessels will have a security zone during the annual Parade of Ships during Fleet Week. The Coast Guard strives to ensure that free speech activities are respected and accommodated.

    Seventh, the commenter provided that the Coast Guard should require an application for the maritime event, pursuant to 33 CFR 100.15, as it might allow for citizens to comment on the entire event in a meaningful way. The Coast Guard's position with respect to marine event permits can be found in the response to this commenter's second comment. Citizens may comment on the event in any way that is provided for under the protections of the First Amendment.

    Eighth, the commenter provided that proposed revisions to 33 CFR 165.1333 expand restricted zones in Elliot Bay. The proposed amendment to 33 CFR 165.1333 did not expand the geographic size nor timeframe of the security zone.

    After considering all the foregoing comments, the Coast Guard amended paragraph (a) of the regulatory text to maintain the notice while adding a provision providing for the Coast Guard to use actual notice for any vessels designated as participating vessels after the notice is issued. This maintains the notice but clarifies that we can address last minute changes to participating vessels because of operational needs. We also amended paragraph (e) to reflect additional methods of obtaining an up to date list of participating vessels, and we included both the date and times of the period that the regulation will be enforced, as opposed to just the date.

    This rule amends the way in which the Coast Guard informs the public of the Seattle Seafair Fleet Week Parade. In order to provide notice to the public regarding the vessels requiring the security zones, the Coast Guard will continue to publish a notice in the Federal Register identifying designated participating vessels. We will also list in those notices the times, in addition to the dates, that the security zones will be enforced. We will use actual notice to make persons aware of changes to the notice identifying designated participating vessels and we will identify all designated participating vessels, included those added late, in both Local Notice to Mariners and Broadcast Notice to Mariners.

    V. Regulatory Analyses

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

    A. Regulatory Planning and Review

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

    This regulatory action determination is based on the fact that this rule only changes the means by which the public will be notified about the security zone.

    B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard received no comments from the Small Business Administration on this rulemaking. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

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

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

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

    C. Collection of Information

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

    D. Federalism and Indian Tribal Governments

    A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order13132.

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

    E. Unfunded Mandates Reform Act

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

    F. Environment

    We have analyzed this rule under Department of Homeland Security Directive 023-01 and Commandant Instruction M16475.1D, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves amending the way in which the Coast Guard will notify the public which vessels are designated participants in Seattle's Seafair Fleet Week. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES.

    G. Protest Activities

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

    List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.

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

    PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for part 165 continues to read as follows: Authority:

    33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.

    2. Amend § 165.1333 by revising paragraphs (a) and (e) to read as follows:
    § 165.1333 Security Zones, Seattle's Seafair Fleet Week moving vessels, Puget Sound, WA.

    (a) Location. The following areas are security zones: All navigable waters within 500 yards of each designated participating vessel in the Parade of Ships while each such vessel is in the Sector Puget Sound Captain of the Port (COTP) zone, as defined in 33 CFR 3.65-10, during a time specified in paragraph (e) of this section. The Coast Guard will publish a notice in the Federal Register each year before the start of the Seattle Seafair Fleet Week to identify the designated participating vessels for that year. Should information in the notice change after publication, as it may for operational reasons, the Coast Guard will use actual notice to enforce security zones around participating vessels not in the published notice. The Coast Guard will also provide this information in the Local Notice to Mariners.

    (e) Annual enforcement period. The security zones described in paragraph (a) of this section will be enforced during Seattle Seafair Fleet Week each year for a period of up to 1 week. The Seattle Seafair Fleet Week will occur annually sometime between July 25 and August 14. The annual notice published in the Federal Register identifying the designated participating vessels will contain the dates and times that this section will be enforced. The Coast Guard will issue a Broadcast Notice to Mariners before the start of the Seattle Seafair Fleet Week to identify the designated participating vessels for that year. In addition, members of the public may contact the Sector Puget Sound COTP at (206) 217-6002 for a list of participating vessels.

    Dated: June 22, 2018. M.M. Balding, Captain, U.S. Coast Guard, Acting Captain of the Port Puget Sound.
    [FR Doc. 2018-13899 Filed 6-27-18; 8:45 am] BILLING CODE 9110-04-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R07-OAR-2017-0143; FRL-9979-97—Region 7] Air Plan Approval; Iowa; Amendment to the Administrative Consent Order, Grain Processing Corporation, Muscatine, Iowa; Final Rule AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is taking final action to approve a revision to the State Implementation Plan (SIP) submitted by the State of Iowa for the purpose of incorporating an amendment to the Administrative Consent Order (ACO) for Grain Processing Corporation (GPC), Muscatine, Iowa. The revision amends the ACO to change the date for completion of performance testing to allow the state more time to complete processing air construction permit applications submitted by GPC and specify testing requirements as appropriate in the final permits. This revision will not impact the schedule for installation and operation of control equipment, will not alter any other compliance dates, and will not adversely affect air quality in Muscatine, Iowa. The state held a 30-day comment period, during which no comments were received.

    DATES:

    This final rule is effective on July 30, 2018.

    ADDRESSES:

    EPA has established a docket for this action under Docket ID No. EPA-R07-OAR-2017-0143. All documents in the docket are listed on the https://www.regulations.gov website. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy form. Publicly available docket materials are available through https://www.regulations.gov or please contact the person identified in the FOR FURTHER INFORMATION CONTACT section for additional information.

    FOR FURTHER INFORMATION CONTACT:

    Heather Hamilton, Environmental Protection Agency, Air Planning and Development Branch, 11201 Renner Boulevard, Lenexa, Kansas 66219 at (913) 551-7039, or by email at [email protected].

    SUPPLEMENTARY INFORMATION:

    Throughout this document “we,” “us,” and “our” refer to EPA. This section provides additional information by addressing the following:

    I. Background II. What is being addressed in this document? III. Have the requirements for approval of a SIP submission been met? IV. What action is EPA taking? V. Incorporation by Reference VI. Statutory and Executive Order Reviews I. Background

    On August 25, 2017, EPA proposed to approve a revision to the Iowa State Implementation Plan (SIP) which amended the Administrative Consent Order (ACO) for Grain Processing Corporation (GPC), Muscatine, Iowa. The revision amended the ACO to change the date for completion of performance testing from May 31, 2017, to May 31, 2018, to allow the state more time to complete processing the remaining air construction permit applications submitted by GPC, and to specify testing requirements as appropriate in the remaining final permits. See 82 FR 40519. In conjunction with the August 25, 2017 notice of proposed rulemaking (NPR), EPA issued a direct final rule (DFR) approving the amended ACO. See 82 FR 40491. In the DFR, EPA stated that if adverse comments were submitted to EPA by September 25, 2017, the action would be withdrawn and not take effect. EPA received an adverse comment prior to the close of the comment period. EPA withdrew the DFR on October 12, 2017. See 82 FR 47396.

    On April 11, 2018, EPA proposed to incorporate the amendment to the ACO for GPC. See 83 FR 15526. A revised Technical Support Document was included in the docket that addressed background information with regard to air quality in Muscatine, Iowa, as well as declining design values for the National Ambient Air Quality Standard for fine particulate matter with a diameter of 2.5 microns or smaller (PM2.5). The proposal also addressed EPA's response to the adverse comments. The comment period for the proposed action ended on May 11, 2018. Three comments were received that were not related to the scope of the proposed rulemaking and therefore, will not be addressed in this final rulemaking.

    II. What is being addressed in this document?

    This final action approves a revision to the Iowa State Implementation Plan (SIP) submitted by the State of Iowa for the purpose of incorporating an amendment to the Administrative Consent Order (ACO) with Grain Processing Corporation (GPC), Muscatine, Iowa. The revision changes the date for completion of performance testing from May 31, 2017, to May 31, 2018, and will allow the state more time to complete processing air construction permit applications submitted by GPC and specify testing requirements as appropriate in the final permits. This amendment will not impact the schedule for installation and operation of control equipment, will not alter any other compliance dates, and will not adversely affect air quality in the Muscatine, Iowa, area.

    III. Have the requirements for approval of a SIP submission been met?

    The state met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The state initiated public comment from April 6, 2013, to May 8, 2013. One comment was received and adequately addressed in the final SIP submission. The amended submission was placed on public comment January 12, 2017, to February 15, 2017. No comments were received. These submissions also satisfied the completeness criteria of 40 CFR part 51, appendix V. In addition, as explained above and in more detail in the technical support documents which are part of the docket for this rulemaking, the submissions met the applicable substantive SIP requirements of the CAA, including section 110 and implementing regulations.

    IV. What action is EPA taking?

    This final action approves a SIP revision submitted by the State of Iowa for the purpose of incorporating an amendment to the Administrative Consent Order (ACO) with Grain Processing Corporation (GPC), Muscatine, Iowa.

    V. Incorporation by Reference

    In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of a revision to Iowa's EPA-approved State source-specific permits described in the direct final amendments to 40 CFR part 52 set forth below. EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 7 Office (please contact the person identified in the For Further Information Contact section of this preamble for more information). Therefore, these materials have been approved by EPA for inclusion in the State Implementation Plan, have been incorporated by reference by EPA into that plan, are fully Federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference in the next update to the SIP compilation.1

    1 62 FR 27968 (May 22, 1997).

    VI. Statutory and Executive Order Reviews

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

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

    • Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866.

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

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

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

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

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

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

    • Is not subject to requirements of the National Technology Transfer and Advancement Act (NTTA) because this rulemaking does not involve technical standards; and

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

    In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

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

    Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 27, 2018. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Particulate matter, Reporting and recordkeeping requirements.

    Dated: June 13, 2018. James B. Gulliford, Regional Administrator, Region 7.

    For the reasons stated in the preamble, EPA amends 40 CFR part 52 as set forth below:

    PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 1. The authority citation for part 52 continues to read as follows: Authority:

    42 U.S.C. 7401 et seq.

    Subpart Q—Iowa 2. Section 52.820 paragraph (d) is amended by revising the entry “(29) Grain Processing Corporation” to read as follows:
    § 52.820 Identification of plan

    (d) * * *

    EPA-Approved Iowa Source-Specific Orders/Permits Name of source Order/Permit No. State effective date EPA approval date Explanation *         *         *         *         *         *         * (29) Grain Processing Corporation Administrative Consent Order No. 2014-AQ-A1 1/16/17 12/1/14, 79 FR 71025; amendment approved 6/28/18 [Insert Federal Register citation] The last sentence of Paragraph 5, Section III and Section VI are not approved by EPA as part of the SIP. *         *         *         *         *         *         *
    [FR Doc. 2018-13857 Filed 6-27-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R05-OAR-2015-0034; FRL-9980-09—Region 5] Approval and Promulgation of Air Quality Implementation Plans; Minnesota; Regional Haze Progress Report AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is approving Minnesota's regional haze progress report under the Clean Air Act (CAA) as a revision to the Minnesota State Implementation Plan (SIP). Minnesota has satisfied the progress report requirements of the Regional Haze Rule. Minnesota also provided a determination of the adequacy of its plan in addressing regional haze with its negative declaration, submitted with the progress report, that no revisions are needed to its plan.

    DATES:

    This final rule is effective on July 30, 2018.

    ADDRESSES:

    EPA has established a docket for this action under Docket ID No. EPA-R05-OAR-2015-0034. All documents in the docket are listed on the www.regulations.gov website. Although listed in the index, some information is not publicly available, i.e., Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy form. Publicly available docket materials are available either through www.regulations.gov or at the Environmental Protection Agency, Region 5, Air and Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois 60604. This facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding Federal holidays. We recommend that you telephone Matt Rau, Environmental Engineer, at (312) 886-6524 before visiting the Region 5 office.

    FOR FURTHER INFORMATION CONTACT:

    Matt Rau, Environmental Engineer, Control Strategies Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-6524, [email protected]

    SUPPLEMENTARY INFORMATION:

    Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:

    I. Background II. What are EPA's responses to the comments? III. What action is EPA taking? IV. Statutory and Executive Order Reviews I. Background

    States are required to submit a progress report every five years that evaluates progress towards the reasonable progress goals (RPGs) for each mandatory Class I Federal area 1 (Class I area) within the state and in each Class I area outside the state which may be affected by emissions from within the state. 40 CFR 51.308(g). States are also required to submit, at the same time as the progress report, a determination of the adequacy of the state's existing regional haze SIP. 40 CFR 51.308(h). The first progress report SIP is due five years after submittal of the initial regional haze SIP.

    1 Under the CAA, a Class I Federal area is one in which visibility is protected more stringently than under the national ambient air quality standards. Class I Federal areas include national parks, wilderness areas, monuments, and other areas of special national and cultural significance.

    Minnesota submitted its regional haze plan to EPA on December 30, 2009, with a supplement submitted on May 8, 2012. Correspondingly, Minnesota submitted its five-year progress report and its determination of adequacy on December 30, 2014. Minnesota made no substantive revisions to its regional haze plan as it determined that the existing SIP is sufficient to achieve the 2018 reasonable progress goals for the Class I areas impacted by Minnesota emissions and thus further revision to the SIP was unnecessary. EPA is approving Minnesota's progress report on the basis that it satisfies the applicable requirements of 40 CFR 51.308.

    In order to satisfy the requirements for Best Available Retrofit Technology (BART) for certain taconite ore processing facilities in Minnesota, EPA promulgated a Federal Implementation Plan (FIP) for taconite on February 6, 2013, (78 FR 8706) and revised the taconite FIP on April 12, 2016, (81 FR 21672). Minnesota elected to use the Cross-State Air Pollution Rule (CSAPR) to satisfy BART for its electric generating units.

    Two Class I areas are located in Minnesota, the Boundary Waters Canoe Wilderness Area (Boundary Waters) and the Voyageurs National Park (Voyageurs). Further, Minnesota emissions contribute to visibility impairment at a Class I area located out of state, the Isle Royale National Park (Isle Royale) in Michigan.

    A direct final rule (DFR) approving the Minnesota regional haze progress report published on October 18, 2017 (82 FR 48425), along with a proposed rule (82 FR 48472) that provided a 30-day public comment period. The DFR evaluated the Minnesota submission by assessing its progress in implementing its regional haze plan during the first half of the first implementation period as well as the statutory and regulatory background for EPA's review of Minnesota's regional haze plan. The DFR also provided a description of the regional haze requirements addressed in the Minnesota progress report. The DFR serves as the detailed basis for this final rule.

    II. What are EPA's responses to the comments?

    Comments were received on the DFR (82 FR 48425). The two anonymous commenters both expressed concern over CSAPR issues. The comments pertain to issues that were addressed in earlier Federal rulemakings.

    Comments: One commenter claims that Minnesota's submission cannot be approved because CSAPR is a FIP and Minnesota cannot rely on a FIP to demonstrate that its SIP is adequate. The commenter also claims that CSAPR has been rescinded as a program and is no longer in force. The commenter states that, as a result, Minnesota cannot rely on CSAPR for its long term goals.

    The other commenter contends that EPA cannot approve progress reports that rely on CSAPR or any other regional trading program to satisfy the BART requirements because BART is required on a source-by-source basis. The commenter claims that BART needs to evaluated based on the impacts on each national park from each source, not as a holistic multi-source or multi-park evaluation.

    Response: The regulations governing progress reports do not include a requirement for states (or EPA) to ensure that all applicable regional haze requirements for the planning period have been met by the existing plan. As such, the comment raising concerns about the reliance on CSAPR to satisfy the BART requirement raises issues outside the scope of this rulemaking. We do note, however, that 40 CFR 51.308(e)(4) allows a state to rely on participation in a CSAPR FIP to address the BART requirements for electric generating units (EGUs). Consistent with this rule, EPA approved Minnesota's regional haze plan in 2012 as satisfying the applicable BART requirements in 40 CFR 51.308 for the subject EGUs through participation in CSAPR (77 FR 34801 (June 12, 2012)).

    EPA's approval of Minnesota's reliance on CSAPR to satisfy the BART requirements for these sources rather than requiring source by source BART was upheld by the 8th Circuit. National Parks Conservation Ass'n v. McCarthy, 816 F.3d.989, 994 (8th Cir. 2016). More broadly, EPA's regulations that allow for the comparison of average visibility improvements across multiple Class I areas in assessing regional trading programs as alternatives to BART has also been upheld as reasonable by the D.C. Circuit. Utility Air Regulatory Group v. EPA, 471 F.3d 1333, 1340-41 (D.C. Cir. 2006) (upholding CAIR as a BART alternative); Utility Air Regulatory Group v. EPA, 885 F.3d 714, 721 (D.C. Cir. 2018) (upholding CSAPR as a BART alternative). We also note that CSAPR has not been rescinded and remains in force. Finally, the regional haze rule defines “implementation plan” to include approved SIPs or FIPs. Given this, states may rely on FIPs in their progress reports to demonstrate the adequacy of a plan to achieve reasonable progress goals.

    In summary, EPA disagrees that the points raised by the commenters prevent approval of the progress report. Thus, EPA finds that Minnesota's progress report satisfies 40 CFR 51.308.

    III. What action is EPA taking?

    EPA is approving the regional haze progress report that Minnesota submitted on December 30, 2014, under the CAA as a revision to the Minnesota SIP. EPA finds that Minnesota has satisfied the progress report requirements of the Regional Haze Rule. EPA also finds that Minnesota has met the requirements for a determination of the adequacy of its regional haze plan with its negative declaration submitted with the progress report.

    IV. Statutory and Executive Order Reviews

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

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

    • Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866;

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

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

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

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

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

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

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

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

    In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

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

    Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 27, 2018. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

    Dated: June 18, 2018. Cathy Stepp, Regional Administrator, Region 5.

    40 CFR part 52 is amended as follows:

    PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 1. The authority citation for part 52 continues to read as follows: Authority:

    42 U.S.C. 7401 et seq.

    2. In § 52.1220, the table in paragraph (e) is amended by adding an entry for “Regional Haze Progress Report” to follow the entry titled “Regional Haze Plan” to read as follows:
    § 52.1220 Identification of plan.

    (e) * * *

    EPA—Approved Minnesota Nonregulatory Provisions Name of nonregulatory SIP provision Applicable
  • geographic or
  • nonattainment
  • area
  • State
  • submittal
  • date/
  • effective
  • date
  • EPA approved date Comments
    *         *         *         *         *         *         * Regional Haze Progress Report statewide 12/30/2014 6/28/2018, [insert Federal Register citation] *         *         *         *         *         *         *
    [FR Doc. 2018-13825 Filed 6-27-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R07-OAR-2017-0386; FRL-9979-85—Region 7] Approval of Nebraska Air Quality Implementation Plans; Adoption of a New Chapter Under the Nebraska Administrative Code AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is taking final action to approve the State Implementation Plan (SIP) revision submitted by the state of Nebraska on November 14, 2011. Nebraska is adding a new chapter titled “Visibility Protection” which provides Nebraska authority to implement Federal regulations relating to Regional Haze and Best Available Retrofit Technology (BART). The new chapter incorporates EPA's Guidelines for BART Determinations under the Regional Haze Rule. The revision to the SIP meets the visibility component of the Clean Air Act (CAA).

    DATES:

    This final rule is effective on July 30, 2018.

    ADDRESSES:

    EPA has established a docket for this action under Docket ID No. EPA-R07-OAR-2017-0386. All documents in the docket are listed on the https://www.regulations.gov website. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy form. Publicly available docket materials are available through https://www.regulations.gov or please contact the person identified in the FOR FURTHER INFORMATION CONTACT section for additional information.

    FOR FURTHER INFORMATION CONTACT:

    Greg Crable, Environmental Protection Agency, Air Planning and Development Branch, 11201 Renner Boulevard, Lenexa, Kansas 66219 at (913) 551-7391, or by email at [email protected].

    SUPPLEMENTARY INFORMATION:

    Throughout this document “we,” “us,” and “our” refer to EPA. This section provides additional information by addressing the following:

    I. Background II. What is being addressed in this document? III. Have the requirements for approval of a SIP revision been met? IV. EPA's Response to Comments V. What action is EPA taking? VI. Incorporation by Reference VII. Statutory and Executive Order Reviews I. Background

    EPA received Nebraska's November 8, 2011, SIP submission. On October 5, 2017, EPA proposed to approve the SIP submission from the State of Nebraska. See 82 FR 46433. In conjunction with the October 5, 2017 notice of proposed rulemaking (NPR), EPA issued a direct final rule (DFR) approving the same SIP submission. See 82 FR 46415. However, in the DFR, EPA stated that if EPA received adverse comments by November 6, 2017, the action would be withdrawn and not take effect. EPA received one set of adverse comments prior to the close of the comment period. EPA withdrew the DFR on November 27, 2017. See 82 FR 55951.

    The revision to title 129, adding chapter 43, Visibility Protection, addressed in this action was originally proposed and approved during the September 8, 2006, Environmental Quality Council (ECQ) meeting. However, the revision was not approved by Attorney General's office. On August 17, 2007, an amended package was re-submitted to the EQC, at which time it was approved by both the EQC and the Attorney General's office. After the Governor's signature, the revision adding chapter 43 became effective on February 6, 2008. Chapter 43 was submitted to the EPA, as part of a larger SIP package on November 8, 2011. Some of the revisions submitted in November 2011, were withdrawn by the State for various reasons. The remaining revisions to title 129, except for revisions adding chapter 43, were approved on October 7, 2016, (81 FR 69693). Chapter 43 is being addressed with this action.

    This final rule action will include the updated docket, address comments received, and finalize the approval of Nebraska's SIP submission.

    II. What is being addressed in this document?

    EPA is taking action to approve revisions to Nebraska's SIP that will amend title 129 of the Nebraska Administrative Code to include a rule addressing certain requirements related to regional haze rule of 1999 1 . This proposed revision adds a new chapter, chapter 43, entitled “Visibility Protection”, to title 129 which incorporates a portion of EPA Code of Federal Regulations under title 40 part 51 of EPA's Guidelines for BART determinations under the Regional Haze Rule. This new chapter provides the Nebraska Department of Environmental Quality (NDEQ) the authority to require sources to conduct BART determinations for the purpose of issuing BART permits. This revision to title 129 is consistent with Federal regulations related to Regional Haze and BART, adopting by reference the definitions for the Federal Regional Haze rule at 40 CFR 51.301 and adopting by reference, appendix Y to 40 CFR part 51, “Guidelines for BART Determinations under the Regional Haze Rule.” The revision to the SIP also meets the visibility component of the CAA section 110(a)(2)(J). Approval of these revisions will not impact air quality and will ensure consistency between the State and federally approved rules.

    1 Title 40 Code of Federal Regulation (CFR) 51.308.

    III. Have the requirements for approval of a SIP revision been met?

    The state submission has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submission also satisfied the completeness criteria of 40 CFR part 51, appendix V. The revised chapter was placed on public notice and a public hearing was held by the State on July 13, 2007, where no comments were received. In addition, the revision meets the substantive SIP requirements of the CAA, including section 110 and implementing regulations.

    IV. EPA's Response to Comments

    The public comment period on EPA's proposed rule opened October 5, 2017 the date of its publication in the Federal Register, and closed on November 6, 2017. During this period, EPA received one set of adverse comments, which are addressed below.

    Comment 1: The commenter stated that the EPA has improperly titled this action. The commenter elaborated by stating that if EPA is acting on a Regional Haze SIP from Nebraska, then it should not be calling this `New Chapter under Nebraska Code'. The commenter's concern was that the title was not descriptive or transparent. Finally, the commenter stated that the EPA's titling of this action could very well violate the administrative procedures act (APA), or at least the spirit of the APA.

    Response 1: By this action, EPA is not acting on a regional haze SIP. This rule gives NDEQ the authority to issue permits for best available retrofit technology or “BART.” EPA retained the title used by the state in describing its SIP, and that title accurately describes the action—addition of the new chapter 43.

    The Administrative Procedure Act at 5 U.S.C. 553(b)(1)-(3) states that the notification of the rule be published in the Federal Register and that the document shall include the time, place, and nature of the public rule making proceedings, the legal authority for the proposed rule, and either the terms or substance of the proposed rule or a description of the subjects and issues involved. This action meets the procedures outlined in the APA. The proposal document was published in the Federal Register. See 82 FR 46433. It provided a summary that clearly described that substance of the proposed rule, explaining that the addition of the new chapter provides Nebraska with “authority to implement Federal regulations relating to Regional Haze and Best Available Retrofit Technology (BART) . . . [and] meets the visibility component of the Clean Air Act (CAA).” Id. In addition, the document provided information on the process for submitting comments and explained the general rulemaking process EPA was using (i.e., the direct final rule with an accompany parallel proposal). That document also clearly stated that EPA “explained our reasons for this action in the preamble to the direct final rule,” id., thereby incorporating the information provided in the accompanying direct final rule preamble, and directing the reader where to find the document for the direct final rule within the Federal Register. In turn, the document for the direct final rule provided more detail on the substance of the SIP submittal and the legal authority for both Nebraska's submission and EPA's action on it. See 82 FR 46415 (which includes a section describing how the state's submission met various statutory and regulatory requirements and explaining that EPA could approve the submission because it is consistent with Federal Regional Haze regulations in 40 CFR part 51 and CAA section 110(a)(2)(j)).

    Comment 2: The commenter stated that EPA needs to repropose this action. The commenter stated that multiple documents in the docket were incomplete, specifically citing: “1) the memo from NE that details the regional haze changes to chapter 43 has been cutoff, see docket document ending in 2017-0386-0012, page 4—this page ends in the middle of a sentence and does not include important information allowing me to evaluate and provide comment. 2) Document ending in 2017-0386-0016, page 5 is corrupt and page 6 is nonexistant [sic].” The commenter was concerned that information was not able to be reviewed or commented on.

    Response 2: After review of the comments received and the EPA's docket for this action, the EPA agrees that the pages outlined by the commenter were missing. However, the missing pages highlighted by the commenter were not provided by the state as part of the state's SIP submission, was an administrative error, and were not used to support the EPA's action. To verify this statement, the EPA has followed up with the state of Nebraska. The state determined that the documents in the docket were the same as what was placed on review for public comment in Nebraska during the state's comment period. The referenced memorandum was a request for approval. It is not evidence of the governor's approval and therefore, is not relied upon for the approval of the SIP action. The attachment listed in the docket as 2017-0386-0016 is a proposed SIP revision for chapter 5 of Nebraska's SIP. EPA took action on this portion of the submission on October 7, 2016 (see 81 FR 69693). Therefore, attachment 2017-0386-0016 of the docket for this action is not relied upon to support this action.

    Additionally, the state's submission included additional revisions that are not being acted upon in this action.2 When the EPA uploaded the docket for this action, additional attachments were included. For this action, the EPA relied upon the following specific pages of the outlined attachments:

    2 September 12, 2016, letter in the docket.

    —EPA-R07-OAR-2017-0386-0003—pages 1 through 3; —EPA-R07-OAR-2017-0386-0004—page 1; —EPA-R07-OAR-2017-0386-0006—pages 1 through 12; —EPA-R07-OAR-2017-0386-0010—pages 5 through 6; —EPA-R07-OAR-2017-0386-0011—page 2; —EPA-R07-OAR-2017-0386-0013—page 2; —EPA-R07-OAR-2017-0386-0015—page 3; and —EPA-R07-OAR-2017-0386-0019—pages 1 through 4. All the documents EPA relied on were included in the docket at the time the Federal Register document was published.

    Comment 3: The commenter stated that the EPA failed to evaluate this action in regard to the March 27, 2017, executive order on energy independence and economic growth. EPA's requirement for states to adopt regional haze SIPs, and thus including chapter 43 in the SIP, will cause a significant impact on coal EGUs and eventually closure of coal EGUs in the state, causing economic hardship on the local communities. Nebraska's fiscal impact statement says, “There is a substantial cost to BART-eligible sources for the required modeling under the BART program. As of now, it is unknown whether and what controls any source in Nebraska may have to install to comply with BART, but the cost of controls would be substantial.” The requirement to comply with chapter 43 is significant.

    Response 3: Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state actions, provided that they meet the criteria of the CAA. The EPA cannot consider disapproving a SIP submission or require any changes based on the March 27, 2017, executive order.

    Comment 4: The commenter stated that it is unclear from the action whether EPA is approving the other chapters and revisions to other chapters into the SIP. EPA included multiple other rules in the docket; however, the rule making action only discusses chapter 43, which is merely three provisions long.

    Response 4: EPA acknowledges that the state's submittal referenced multiple additional chapters and revisions to the state's rules. Within the proposal for this action, the EPA clearly stated that it was proposing “to take action to add chapter 43, `Visibility Protection.' ” 82 FR 46433. Within the EPA's proposal, no additional chapters were referenced for approval. This action finalizes the proposed action 3 and does not include any additional chapters beyond chapter 43. As the EPA stated earlier, additional portions of the state's submittal were included in the docket for the proposed rule. As outlined in Nebraska's September 12, 2016, letter, portions of the state's submission were withdrawn. However, the EPA has kept the docket intact and added the September 12, 2016, letter to provide additional clarity on which portions of the submission that the EPA was requested to approve. However, in response to comment number 2, the EPA has provided specific pages of the docket on which the EPA relied for this action.

    3 82 FR 46433

    Comment 5: The commenter stated that the EPA did not evaluate the new regulation against the EPA's Regional Haze Rule nor did EPA show that this new rule meets the regional haze requirements. EPA also did not say whether or not approving this new rule means that Nebraska has an approved Regional Haze SIP.

    Response 5: This action is not specifically a Regional Haze SIP. This action is designed to show that NDEQ has the authority to implement BART procedures. This action was not required as part of Nebraska's Regional Haze SIP. The EPA partially approved and partially disapproved Nebraska's Regional Haze SIP on July 6, 2012. The full docket for that rulemaking can be found at EPA-R07-2012-0158-0051.

    Comment 6: The commenter stated that assuming this new rule is not a Regional Haze SIP and does not meet the requirements of the Regional Haze rule, EPA needs to require Nebraska to submit any permits issued to address BART under this new rule as source-specific SIP revisions as this rule is merely a generic-type rule that lays out a process by which sources will address BART related requirements.

    Response 6: As explained above, this action is not specifically a Regional Haze SIP, so the assumptions alleged in the comment are not relevant. This action is designed to show that NDEQ has the authority to implement BART procedures and it has been approved for that purposes. This action was not required as part of Nebraska's Regional Haze SIP, which the EPA partially approved and partially disapproved on July 6, 2012 (see rulemaking docket EPA-R07-2012-0158-0051).

    Comment 7: The commenter stated that the new chapter 43 and the revised chapter 1 do not include any Regional Haze related definitions such as the definition of BART, or the types of emission limitations or work practices which constitute BART for a given source. The commenter also stated that there was confusion on if EPA was acting on chapter 1 as part of this action.

    Response 7: As the EPA outlined in its proposed rule and explained above in response to comment 4, the EPA is only acting on chapter 43 in this action. EPA is not acting on revisions to chapter 1 in this action. Chapter 43 references the Federal BART requirements. The state is incorporating a portion of the Federal requirements, including definitions related to BART.

    V. What action is EPA taking?

    EPA is taking final action to revise the Nebraska SIP to add a new chapter, chapter 43.

    VI. Incorporation by Reference

    In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of the Nebraska Regulations described in the amendments to 40 CFR part 52 set forth below. EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 7 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

    Therefore, these materials have been approved by EPA for inclusion in the State implementation plan, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference in the next update to the SIP compilation.4

    4 62 FR 27968 (May 22, 1997).

    VII. Statutory and Executive Order Reviews

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

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

    • Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866.

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

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

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

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

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

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

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

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

    In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

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

    Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 27, 2018. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Best available retrofit technology, Incorporation by reference, Intergovernmental relations, Nitrogen oxides, Particulate matter, Regional haze, Reporting and recordkeeping requirements, Sulfur dioxide, Visibility, Volatile organic compounds.

    Dated: June 13, 2018. James B. Gulliford, Regional Administrator, Region 7.

    For the reasons stated in the preamble, EPA amends 40 CFR part 52 as set forth below:

    PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 1. The authority citation for part 52 continues to read as follows: Authority:

    42 U.S.C. 7401 et seq.

    Subpart CC—Nebraska 2. In § 52.1420, the table in paragraph (c) is amended by revising the entry “129-43” to read as follows:
    § 52.1420 Identification of plan.

    (c) * * *

    EPA-APPROVED NEBRASKA REGULATIONS Nebraska citation Title State effective date EPA Approval date Explanation STATE OF NEBRASKA Department of Environmental Quality Title 129—Nebraska Air Quality Regulations *         *         *         *         *         *         * 129-43 Visibility Protection 2/6/08 6/28/18, [insert Federal Register citation] *         *         *         *         *         *         *
    [FR Doc. 2018-13723 Filed 6-27-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 257 [EPA-HQ-OLEM-2017-0613; FRL-9979-88-OLEM] Oklahoma: Approval of State Coal Combustion Residuals Permit Program AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Notification of final authorization.

    SUMMARY:

    Pursuant to the Resource Conservation and Recovery Act (RCRA or Act), the Environmental Protection Agency (EPA) is approving the Oklahoma Department of Environmental Quality's Coal Combustion Residuals (CCR) State permit program, which will operate in lieu of the Federal CCR program. EPA has determined that Oklahoma's program meets the standard for approval under RCRA. Facilities operating under the state program requirements and resulting permit provisions will also be subject to EPA's inspection and enforcement authorities under RCRA.

    DATES:

    The final authorization is effective on July 30, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Mary Jackson, Office of Resource Conservation and Recovery, Environmental Protection Agency; telephone number: (703) 308-8453; email address: [email protected]

    SUPPLEMENTARY INFORMATION:

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

    I. General Information A. Overview of Final Authorization

    EPA is granting approval to Oklahoma's CCR state permit program application, pursuant to RCRA 4005(d)(1)(B). Oklahoma's program allows the Oklahoma Department of Environmental Quality (ODEQ) to enforce state rules related to CCR disposal activities in non-Indian country, as well as to review for approval permit applications and to enforce permit violations. Oklahoma's CCR permit program will operate in lieu of the Federal CCR program, codified at 40 CFR part 257, subpart D.

    EPA will retain sole authority to regulate and permit CCR units in Indian country as defined in 18 U.S.C. 1151, which includes reservations, dependent Indian communities, and Indian allotments, whether restricted or held in trust by the United States. EPA treats as reservations trust lands validly set aside for the use of a tribe even if the trust lands have not been formally designated as a reservation.1 EPA has engaged federally-recognized Tribes within the state of Oklahoma in consultation and coordination regarding the program authorizations for ODEQ and established opportunities for formal as well as informal discussion throughout the consultation period, beginning with an initial conference call on October 19, 2017. On that call, the authorization procedures and the impact of granting authorization were discussed, and further consultation was offered. Tribal consultation is conducted in accordance with the EPA policy on Consultation and Coordination with Indian Tribes. (see https://www.epa.gov/sites/production/files/2013-08/documents/cons-and-coord-with-indian-tribes-policy.pdf).2

    1See, e.g., Oklahoma Tax Commission vs. Citizen Band Potawatomi Indian Tribe of Oklahoma, 498 U.S. 505, 511 (1991).

    2 See October 12, 2017 letter from Wren Stenger to Chet Brooks, Chief, Delaware Tribe of Oklahoma. EPA-HQ-OLEM-2017-0613.

    B. Background

    CCR are generated from the combustion of coal, including solid fuels classified as anthracite, bituminous, subbituminous, and lignite, for the purpose of generating steam for powering a generator to produce electricity or electricity and other thermal energy by electric utilities and independent power producers. CCR include fly ash, bottom ash, boiler slag, and flue gas desulfurization materials. CCR can be sent off-site for disposal or beneficial use or may be disposed in on-site landfills or surface impoundments.

    On April 17, 2015, EPA published a final rule, creating 40 CFR part 257, subpart D, which established nationally applicable minimum criteria for the safe disposal of CCR in landfills and surface impoundments (80 FR 21302). The rule created a self-implementing program which regulates the location, design, operating criteria, groundwater monitoring and corrective action for CCR disposal, as well as regulating the closure and post-closure care of CCR units and recordkeeping and notifications for CCR units. The regulations do not cover the “beneficial use” of CCR as that term is defined in § 257.53.

    C. Statutory Authority

    EPA is issuing this action under the authority of RCRA sections 4005(d) and 7004(b)(1). See 42 U.S.C. 6945(d), 6974(b)(1).

    In December 2016, Congress passed and the President signed the Water Infrastructure Improvements for the Nation (WIIN) Act. Section 2301 of the WIIN Act amended Section 4005 of RCRA, creating a new subsection (d) that establishes a Federal permitting program similar to those under RCRA section 4005(c) and subtitle C, as well as other environmental statutes. See 42 U.S.C. 6945(d). Under section 4005(d), states may develop and submit a CCR permit program to EPA for approval; once approved the state permit program operates in lieu of the Federal requirements. See 42 U.S.C. 6945(d)(1)(A).

    To become approved, the statute requires that a state provide “evidence of a permit program or other system of prior approval and conditions under state law for regulation by the state of coal combustion residuals units that are located in the state.” See 42 U.S.C. 6945(d)(1)(A). In addition, the statute directs that the state submit evidence that the program meets the standard in section 4005(d)(1)(B), i.e., that it will require each CCR unit located in the state to achieve compliance with either: (1) The Federal CCR requirements at 40 CFR part 257, subpart D; or (2) other state criteria that the Administrator, after consultation with the state, determines to be at least as protective as the Federal requirements. See 42 U.S.C. 6945(d)(1)(B). EPA has 180 days after submittal of such evidence to make a final determination, and must provide public notice and an opportunity for public comment. See 42 U.S.C. 6945(d)(1)(B).

    To receive EPA approval, EPA must determine that the state program requires each CCR unit located in the state to achieve compliance either with the requirements of 40 CFR part 257, subpart D, or with state criteria that EPA determines (after consultation with the state) to be at least as protective as the requirements of 40 CFR part 257, subpart D. See 42 U.S.C. 6945(d)(1)(B). EPA may approve a proposed state permit program in whole or in part. Id.

    Once a program is approved, EPA must review the program at least every 12 years, as well as no later than three years after a revision to an applicable section of 40 CFR part 257, subpart D, or one year after any unauthorized significant release from a CCR unit located in the state. See 42 U.S.C. 6945(d)(1)(D)(i)(I)-(III). EPA also must review a program at the request of another state alleging that the soil, groundwater, or surface water of the requesting state is or is likely to be adversely affected by a release from a CCR unit in the approved state. See 42 U.S.C. 6945(d)(1)(D)(i)(IV).

    In a state with an approved CCR program, EPA may commence administrative or judicial enforcement actions under RCRA section 3008 if the state requests assistance or if EPA determines that an EPA enforcement action is likely to be necessary to ensure that a CCR unit is operating in accordance with the criteria of the approved permit program. See 42 U.S.C. 6945(d)(4).

    II. Oklahoma's Application

    ODEQ issued a notice of rulemaking intent related to its proposed CCR program and accepted public comments from December 1, 2015, through January 13, 2016. ODEQ then published an Executive Summary rulemaking document that included the public comments received and the ODEQ responses.

    In September 2016, ODEQ promulgated Oklahoma Administrative Code (OAC) Title 252 Chapter 517 Disposal of Coal Combustion Residuals from Electric Utilities, establishing its CCR program. OAC 252:517 incorporates the Federal technical regulations at 40 CFR part 257, subpart D, with some minor modifications discussed below.

    On August 3, 2017, EPA received an application from the state of Oklahoma requesting a review of their CCR state permit program. EPA determined that the application was complete and notified Oklahoma of its determination by letter dated December 21, 2017.3 On January 16, 2018, EPA published a notification and requested comment on its proposed determination to approve the Oklahoma CCR program (83 FR 2100). The comment period closed on March 19, 2018.

    3 ODEQ's initial CCR permit program application, subsequent supplementation, and EPA's determination of completeness letter are available in the docket supporting this authorization.

    On February 13, 2018, EPA conducted a public hearing on the application at the ODEQ building located at 707 N Robinson Avenue, Oklahoma City, Oklahoma. The public hearing provided interested persons the opportunity to present information, views or arguments concerning ODEQ's program application. Comments from the hearing as well as additional comments received during the comment period are included in the docket for this document.

    The state indicates there are currently five CCR facilities in Oklahoma.4 A facility previously thought to be regulated under the CCR part 257 regulations was not correctly identified initially. One of the current five facilities is not yet permitted as it was previously under the jurisdiction of the Oklahoma Department of Mines. The other four facilities have permitted landfills and/or surface impoundments that are now subject to the CCR part 257 regulations. Approval of ODEQ's CCR application allows the ODEQ regulations to apply to existing CCR units, as well as any future CCR units not located in Indian country, in lieu of the Federal requirements.

    4 The notification for proposed authorization indicated six facilities in Oklahoma. Currently there are 5 facilities at which CCR units are located. The sixth facility identified in the proposal stores fly and bottom ash in metal bins or enclosed structures neither of which meets the definition of a CCR unit.

    EPA is not aware of any existing CCR units in Indian country within Oklahoma, but EPA will maintain sole authority to regulate and permit CCR units in Indian country, meaning formal and informal reservations, dependent Indian communities, and Indian allotments, whether restricted or held in trust by the United States.

    III. EPA Analysis of Oklahoma's Application

    As discussed in Section I.C. of this document, the statute requires EPA to evaluate two components of a state program to determine whether it meets the standard for approval. First, EPA is to evaluate the adequacy of the permit program itself (or other system of prior approval and conditions). See 42 U.S.C. 6945(d)(1)(A). Second, EPA is to evaluate the adequacy of the technical criteria that will be included in each permit to determine whether they are the same as the Federal criteria, or to the extent they differ, whether the modified criteria are “at least as protective as” the Federal requirements. See 42 U.S.C. 6945(d)(1)(B). Only if both components meet the statutory requirements may EPA approve the program. See 42 U.S.C. 6945(d)(1).

    On that basis, EPA conducted a review of ODEQ's application, including a thorough analysis of OAC 252:517 and its adoption of 40 CFR part 257, subpart D (see section A. Adequacy of Oklahoma's Permit Program and section B. Adequacy of Technical Criteria below.). Based on this review, EPA has determined that ODEQ's CCR permit program as submitted meets the standard for approval in section 4005(d)(1)(A) and (B). Oklahoma's program contains all but two of the technical elements of the Federal rule, including requirements for location restrictions, design and operating criteria, groundwater monitoring and corrective action, closure requirements and post-closure care, recordkeeping, notification and internet posting requirements. As discussed in greater detail below, the two exceptions relate to the requirements at 40 CFR 257.3-1 (which address siting of units in floodplains), and 257.3-2 (which addresses the protection of endangered and threatened species). Oklahoma has not adopted the specific language of either of these Federal regulations but is relying on its existing state regulations at OAC 252:517-5-8 and 5-9 which EPA has determined to be at least as protective as the Federal criteria. The program also contains state-specific language, references and state-specific requirements that differ from the Federal rule, which EPA has determined to be at least as protective as the Federal criteria. EPA's analysis and findings are discussed in greater detail below and in the Technical Support Document for the Approval of Oklahoma's Coal Combustion Residuals State Permit Program, which is included in the docket to this action.

    The OAC rules promulgated in 2016 included language inserts and deletions to enable ODEQ to permit CCR units and enforce the Oklahoma rule. The revisions include: The removal of statements regarding national applicability; the inclusion of language to require submittal and approval of plans to ODEQ; the inclusion of permitting provisions to allow ODEQ to administer the CCR rules in the context of a permitting program; the inclusion of state-specific location restrictions; the inclusion of procedures for subsurface investigation; and the inclusion of provisions addressing cost estimates and financial assurance.

    Throughout Oklahoma's Chapter 517 rules, references for tribal notifications and/or approval that appear in the Federal rule have been deleted along with the terms “Indian Country,” “Indian Lands,” and “Indian Tribe.” Per the WIIN Act, EPA will retain sole authority to operate the Federal CCR program in Indian country, including the regulation and permitting of CCR units. As defined in 18 U.S.C. 1151, Indian country includes reservations. Dependent Indian communities, and Indian allotments, whether restricted or held in trust by the United States. EPA treats as reservations trust lands validly set aside for the use of a tribe even if the trust lands have not been formally designated as a reservation. See, e.g., Oklahoma Tax Commission vs. Citizen Band Potawatomi Indian Tribe of Oklahoma, 498 U.S. 505, 511 (1991).

    A. Adequacy of Oklahoma's Permit Program

    RCRA section 4005(d)(1)(A) requires a state seeking program approval to submit to EPA an application with “evidence of a permit program or other system of prior approval and conditions under state law for regulation by the state of coal combustion residuals units that are located in the State.” RCRA section 4005(d) does not require EPA to promulgate regulations for determining the adequacy of state programs. EPA therefore evaluated the adequacy of ODEQ's permit program against the standard in RCRA section 4005(d)(1)(A) by reference to the existing regulations in 40 CFR part 239, Requirements for State Permit Program Determination of Adequacy and the statutory requirements for public participation in RCRA Section 7004(b). The Agency's general experience in reviewing and approving state programs also informed EPA's evaluation.

    In order to aid states in developing their programs and to provide a clear statement of how, in EPA's judgment, the existing regulations and statutory requirements in sections 4005(d) and 7004(b) apply to state CCR programs, EPA announced on August 15, 2017, the availability of an interim final Guidance for Coal Combustion Residuals State Permit Programs (82 FR 38685). This guidance outlines the process and procedures EPA generally intends to use to review and make determinations on state CCR permit programs, and that were used in evaluating Oklahoma's application.

    RCRA section 7004(b) applies to all RCRA programs, directing that “public participation in the development, revision, implementation, and enforcement of any . . . program under this chapter shall be provided for, encouraged, and assisted by the Administrator and the States.” 42 U.S.C.S. 6974(b)(1). Although 40 CFR part 239 applies to approval of state Municipal Solid Waste Landfill (MSWLF) programs under RCRA 4005(c)(1), rather than EPA's evaluation of CCR permit programs under RCRA 4005(d), the specific criteria outlined in part 239 provide a helpful framework to more broadly examine the various aspects of ODEQ's proposed program. States are familiar with these criteria through the MSWLF program (all states have MSWLF programs that have been approved pursuant to these regulations) and the regulations are generally regarded as protective and appropriate. In general, EPA considers that a state program that is consistent with the part 239 provisions would meet the section 7004(b)(1) directive regarding public participation. As part of analyzing the application, EPA reviewed the four categories of criteria outlined in 40 CFR part 239 as guidelines for permitting requirements, requirements for compliance monitoring authority, requirements for enforcement authority, and requirements for intervention in civil enforcement proceedings.

    To complete its evaluation, EPA relied on the information contained in the original application, as well as all materials submitted during the comment period and at the public hearing. The findings are also based on additional information submitted by Oklahoma on April 27, 2018 and May 9, 14, 16, and 31, 2018, in response to follow-up questions from EPA on the authorization application. All of this information is included in the docket for this document. A summary of EPA's findings is provided below, organized by the program elements identified in the part 239 regulations and EPA's interim final guidance document; detailed analysis of the submitted state program can be found in the Technical Support Document, which is included in the docket for this action.

    1. Permitting Guidelines

    Based on RCRA section 7004 and on the part 239 regulations, an adequate permitting program will provide for public participation by ensuring that: Documents for permit determinations are made available for public review and comment; final determinations on permit applications are made known to the public; and public comments on permit determinations are considered.

    All environmental permit and modification applications in Oklahoma are subject to the Oklahoma Uniform Environmental Permitting Act (UEPA) and the permitting rules promulgated to carry out UEPA. UEPA classifies all permit applications and modifications into three tiers that determine the level of public participation and administrative review the permit application will receive. (Section 27A-2-14-201(B)(1)). In making determinations for Tier I, II or III, the following criteria are considered:

    • The significance of the potential impact of the type of activity on the environment,

    • the amount, volume and types of waste proposed to be accepted, stored, treated, disposed, discharged, emitted or land applied,

    • the degree of public concern traditionally connected with the type of activity,

    • the Federal classification, if any, for such proposed activity, operation or type of site or facility, and

    • any other factors relevant to such determinations.

    Such designations must be consistent with any analogous classifications set forth in applicable Federal programs. Section 27A OS-2-14-201(B)(2). Oklahoma classifies solid waste management applications, including CCR applications, into their respective tiers at OAC 252:4-7-58 through 60. All permit documents, regardless of tier, are available for public review and copying. OAC 252:4-1-5.

    Oklahoma describes the Tier I permit application process as “the category for those things that are basically administrative decisions which can be made by a technical supervisor with no public participation except for the landowner.” OAC 252:4-7-2. The Tier I permit application requires an application, notice to the landowner, and Department review. 27A O.S. section 2-14-103(9). Applications for minor modifications, and approval of technical plans fall within the Tier I category. OAC 252:4-7-58. Such plans would include, for example, fugitive dust control plans, run-on/runoff control system plans. EPA notes that these plans would be available for public comment and review if they are part of a new permit or other action designated as Tier II or III as discussed below.

    Under OAC 252:4-7-58 (2)(A)(iii), modifications to closure or post-closure plans and modifications to technical plans are considered Tier 1 modifications. ODEQ has stated that, when applying the regulations and designating the appropriate Tier for these plan modifications, the underlying UEPA statute requires consideration of potential environmental impact.5 For example, if a facility had an approved closure plan to close the unit with waste in place and they sought approval instead to “clean close” the unit, that would be considered minor (Tier I) because clean closure is generally a more aggressive and difficult to achieve option. However, if a facility applied to amend a closure plan that specifies clean closure, and it is modified to authorize closure of the unit with waste in place, such a change would be designated as Tier II (discussed below). The basis for requiring this would be the statutory provisions at 27A-2-14-201 listed above. Thus, the seemingly broad categories of Tier 1 modifications must be interpreted to be consistent with the statutory directive.

    5 Telephone Conference Call May 11, 2018 EPA Region VI, EPA Office of Resource Conservation and Recovery, ODEQ.

    The Tier II permit application process expands upon the Tier I requirements to include published notice of the application filing, published notice of the draft permit or denial, opportunity for a public meeting, and submittal of public comment. 27A O.S. section 2-14-103(10). The Tier II process applies to new permits for on-site CCR disposal units and all modifications to existing facilities unless specifically listed under Tier I. OAC 252:4-7-59. ODEQ requires any application for expansion of a CCR unit or additional capacity, whether existing or new surface impoundment or landfill, to follow at a minimum the Tier II process. Non-generator owned facilities that receive material from off-site follow the Tier III process.

    The Tier III permit application process includes the requirements of Tiers I and II and adds notice of an opportunity for a process meeting (i.e. how the permit process works). The Tier III process applies to new permits for off-site disposal units and permits for some significant modifications to off-site disposal units. OAC 252:4-7-60.

    UEPA provides for public notice and review of permit applications and significant permit modifications through its Tier II and III programs. In the case of Tier II and III applications that do not receive timely comments or public meeting request and for which no public meeting was held, the final permit would be issued or denied by ODEQ. For Tier II and III applications for which comments or a public meeting request was received or which a public meeting was held, ODEQ considers the comments and then prepares a response to comments prior to issuance of the final permit. These programs provide opportunities for public participation and the application of UEPA to the CCR permitting program is consistent with Oklahoma's practice across environmental programs. Permit and permit modification applications for CCR facilities fall under the existing solid waste management application requirements at OAC 252:4-7-58 through 60. Thus, EPA has determined that the Oklahoma program provides for adequate public participation, thereby satisfying the requirements of RCRA section 7004.

    2. Guidelines for Compliance Monitoring Authority

    EPA considers that the “evidence of a permit program or other system of prior approval and conditions under state law for regulation by the state of coal combustion residuals units” required under RCRA 4005(d)(1)(A) should normally include information to demonstrate that the state has the authority to gather information about compliance, perform inspections, and ensure that information it gathers is suitable for enforcement. Note that this is consistent with the part 239 regulations and with the interpretation expressed in EPA's interim final guidance.

    ODEQ has compliance monitoring authority under 27A O.S. section 2-3-501, allowing for inspections, sampling, information gathering, and other investigations. This authority extends to ODEQ's proposed CCR permit program and would provide the authority to adequately gather information for enforcement.

    3. Guidelines for Enforcement Authority

    EPA considers that the “evidence of a permit program or other system of prior approval and conditions under state law for regulation by the state of coal combustion residual units” required under RCRA 4005(d)(1)(A) should normally include information to demonstrate that the state has adequate authority to administer and enforce RCRA CCR permit programs, including: the authority to restrain any person from engaging in activity which may damage human health or the environment, the authority to sue to enjoin prohibited activity, and the authority to sue to recover civil penalties for prohibited activity.

    EPA has determined that ODEQ has adequate authority to administer and enforce its existing programs under 27A O.S. section 2-3-501-507 and that authority extends to the ODEQ CCR permit program.

    4. Intervention in Civil Enforcement Proceedings

    Based on RCRA section 7004, EPA considers that the “evidence of a permit program or other system of prior approval and conditions under state law for regulation by the state of coal combustion residuals units” required under RCRA 4005(d)(1)(A) includes a demonstration that the state provides adequate opportunity for citizen intervention in civil enforcement proceedings. As EPA has explained (for example, in the interim final guidance) the standards found in 40 CFR 239.9 provide a useful model. Using those standards, the state must have authority to allow citizen intervention or provide assurance of (1) a notice and public involvement process, (2) investigating and providing responses about violations, and (3) not opposing intervention when permitted by statute, rule, or regulation.

    Using 40 CFR 239.9(a) as a model, ODEQ's CCR program satisfies the civil intervention requirement by allowing intervention by right (12 OK Stat section 12-2024).6 In addition, ODEQ's CCR program would satisfy the requirements of 40 CFR 239.9(b) by providing a process to respond to citizen complaints (see 27A O.S. section 2-3-101,503) and by not opposing citizen intervention when allowed by statute (see 27A O.S. section 2-7-133).

    6 Under 12 OK Stat section 12-2024, intervention by right is allowed when a statute confers an unconditional right to intervene; or when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest.

    ODEQ has a robust process for responding to citizen complaints. Under 27A O.S. section 2-3-101-F-1, the complaints program is responsible for intake processing, mediation and conciliation of inquiries and complaints received by the Department and provides for the expedient resolution of complaints within the jurisdiction of the Department. Under 27A O.S. section 2-3-503, if the Department undertakes an enforcement action as a result of a complaint, the Department notifies the complainant of the enforcement action by mail. The state program in 27A O.S. section 2-3-503 offers the complainant an opportunity to provide written information pertinent to the complaint within fourteen (14) calendar days after the date of the mailing. The state program also goes further in 27A O.S. section 2-3-104 stating that the complaints program shall, in addition to the responsibilities specified by section 2-3-101, refer, upon written request, all complaints in which one of the complainants remains unsatisfied with the Department's resolution of said complaint to an outside source trained in mediation. These additional elements of the state's complaint process indicate that ODEQ takes public intervention seriously in enforcement actions.

    EPA has determined that these requirements meet the level of public participation in the enforcement process required under RCRA 7004(b).

    B. Adequacy of Technical Criteria

    EPA has determined that ODEQ's CCR permit program meets the standard for approval in RCRA section 4005(d)(1)(B)(i), as it will require each CCR unit located in Oklahoma to achieve compliance with the applicable criteria for CCR units under 40 CFR part 257 or with other state criteria that the Administrator, after consultation with the state, has determined to be at least as protective as the criteria in part 257. To make this determination, EPA compared ODEQ's proposed CCR permit program to 40 CFR part 257 to determine whether it differed from the Federal requirements, and if so, whether those differences met the standard for approval in RCRA section 4005(d)(1)(B)(ii) and (C).

    Oklahoma has adopted all but two of the technical criteria at 40 CFR part 257, subpart D, into its regulations at OAC Title 252 Chapter 517. The two exceptions are discussed in sections 1 and 2 below.

    While ODEQ's CCR permit program also includes some modification of 40 CFR part 257, subpart D, the majority of ODEQ's modifications were needed to allow the state to implement the part 257 criteria through a permit process. As mentioned above, the 40 CFR part 257, subpart D, rules were meant to be implemented directly by the regulated facility, without the oversight of any regulatory authority, such as a state permitting program. ODEQ thus needed to make some changes to the part 257 regulations to allow it to implement the permit program. Examples of these changes include the addition of language to require submittal and approval of plans to ODEQ, and of permitting provisions to allow the ODEQ to administer the CCR rules in the context of a permitting program. ODEQ also made some minor modifications to address state-specific issues: For example, the state did not incorporate 40 CFR 257.61(a)(2)(iv), which references the Marine Protection, Research, and Sanctuaries Act (MPRSA) requirements because Oklahoma does not have any coastal or ocean environments which apply under the MPRSA regulations. Oklahoma also included provisions to integrate purely state-law requirements into the Federal criteria—such as state-specific locations restrictions; procedures for subsurface investigation; and provisions addressing cost estimates and financial assurance. EPA considers these revisions to be administrative ones, that they do not substantively modify the Federal technical criteria.7

    7 List of revisions included in the docket for this document.

    Other minor changes made by ODEQ to the 40 CFR part 257, subpart D, criteria reflect the integration of the CCR rules with the responsibilities of other state agencies or state specific conditions. Additional changes include removal of the web link to EPA publication SW-846 under the definition “Representative Sample” in 40 CFR 257.53; and the replacement of 40 CFR 257.91(e) with a reference to the Oklahoma Water Resources Board (OWRB) section 785:35-7-2. A few changes were made inadvertently including a typographic error in Chapter 517-9-4(g)(5) and the inadvertent removal of the words “and the leachate collection and removal” from section 252:517-11-1(e)(1). The state has updated their rule language to correct the errors.

    EPA finds these references to OWRB standards to be minor because the key aspects of the CCR program, including requirements for location restrictions, design and operating criteria, groundwater monitoring and corrective action, closure requirements and post-closure care, recordkeeping, notification and internet posting requirements, are not substantially changed or reduced and in one example, are more stringent. These changes do not keep the overall program from being at least as protective as 40 CFR part 257, subpart D. EPA's full analysis of Oklahoma's CCR permit program can be found in the Technical Support Document, located in the docket for this document.

    1. Adequacy of State Analog to 40 CFR 257.3-1 Regarding Floodplains

    The current Federal criteria at § 257.3-1 addresses location of CCR units in floodplains as follows:

    Facilities or practices in floodplains cannot restrict the flow of the base flood, reduce the temporary water storage capacity of the floodplain, or result in washout of solid waste, so as to pose a hazard to human life, wildlife, or land or water resources.

    (1) Base flood means a flood that has a one percent or greater chance of recurring in any year or a flood of a magnitude equaled or exceeded once in 100 years on the average over a significantly long period.

    (2) Floodplain means the lowland and relatively flat areas adjoining inland and coastal waters, including flood-prone areas of offshore islands, which are inundated by the base flood.

    (3) Washout means the carrying away of solid waste by waters of the base flood.

    Oklahoma's floodplain requirement at section 252:517-5-9 states that no waste management or disposal area of a CCR unit can be located within the 100-year floodplain except: (1) CCR units that were permitted before April 9, 1994 and that meet the same criteria under the Federal floodplain standards at 40 CFR 257.3-1 and summarized above; and (2) units that have received an authorized variance for waste management or disposal areas of new CCR units, or expansions of waste management or disposal areas of existing units, provided the variance is conditioned upon the subsequent redefinition of the floodplain to not include the land area proposed by the variance.

    Discussions with ODEQ provided additional information regarding how the variance is implemented.8 Specifically, to qualify for the variance, facilities may employ engineering solutions such as building a dike, changing the flow of water or changing the elevation of the area, and seek to have the floodplain redefined not to include the land area of the new or expanded unit. To authorize the redefinition of the floodplain based on these engineering solutions, an application is submitted by the facility to the Federal Emergency Management Administration (FEMA) for receipt of a Letter of Map Revision (LOMR). If approved, the facility first receives a Conditional Letter of Map Revision (CLOMR) allowing construction of the unit and the engineering solutions per the conditions outlined in the CLOMR. If the conditions of the CLOMR are met, a LOMR is issued by FEMA authorizing that agency to revise the flood hazard map information so as not to include the land area of the new or expanded unit (see https://www.fema.gov/flood-map-revision-processes#4 for additional information on the FEMA process).

    8 See summary of call with ODEQ May 31, 2018 included in the docket for this authorization.

    ODEQ has stated that no CCR unit can begin receiving CCR until approval of the redefined floodplain by FEMA and receipt of the LOMR by the facility. Based on all of these facts, EPA has determined that the Oklahoma floodplain standard would be at least as protective as the Federal part 257 standard.

    2. Adequacy of State Analog to 40 CFR 257.3-2

    As noted previously, Oklahoma has not adopted the Federal regulation, but is relying on its existing state regulation at OAC 252:517-5-8. EPA has determined that this regulation meets the standard for approval in RCRA section 4005(d)(1)(B)(ii) and (C) as it is at least as protective as the Federal criteria in 40 CFR 257.3-2.

    OAC 252:517-5-8. Endangered or Threatened Species requires that for a new CCR unit, or expansion of the permit boundary of an existing CCR unit, a statement from the Oklahoma Department of Wildlife Conservation (ODWC) and from the Oklahoma Biological Survey (OBS), must be submitted regarding current information about endangered or threatened wildlife or plant species listed in state and Federal laws, that exist within one mile of the permit boundary or expansion area. If threatened or endangered species exist within, or periodically utilize any area within, or within one mile of, the permit boundary or expansion area, the projected impacts on the identified species must be addressed, and measures specified to avoid or mitigate the impacts.

    When impacts are unavoidable, a mitigation plan that has been approved by ODWC for wildlife or OBS for plants, must be submitted to ODEQ. ODEQ confirmed the language in OAC 252:517-5-8 includes fish. See OAC 800:25-19-6.

    EPA has compared the existing Federal CCR regulations at 40 CFR 257.52 with ODEQ's act and regulation and has determined that ODEQ's provision is at least as protective as the Federal CCR provision. Specifically, the term “impact” in the state rule is consistent with “taking” in the Federal rule. Pursuant to 40 CFR 257.3-2(a), facilities or practices cannot cause or contribute to the taking of an endangered or threatened species. All the actions included in the definition of “taking” in 40 CFR 257.3-2(b)(3) can have an impact on a particular species and therefore fall within the scope of OAC 252:517-5-8(a).

    Pursuant to OAC 252:517-5-8(1), the facility must address any projected impact on any threatened or endangered species that exists within or periodically utilizes any area within one mile of the permit boundary or proposed area of expansion. Furthermore, the facility must specify measures to avoid or mitigate the projected impacts. The state interprets this provision to include any destruction or adverse modification of critical habitat of the endangered/threatened species, as that would have an impact on the species.

    The Federal provision has no time-specific trigger of when any review, etc. is to occur. The state provision requires that the facility, upon the proposed permitting of a new CCR unit or the expansion of a facility's permit boundaries, shall provide confirmation from the OBS of any state and Federal listed threatened or endangered species that can be found within a mile of the facility or expansion area. Due to the inclusion of state-listed species, EPA has read this provision to be more protective than the Federal requirements.

    Pursuant to OAC 252:517-5-8(2), if a projected impact is determined to be unavoidable, the facility must develop and submit a mitigation plan to ODWC or OBS for approval. An approved plan must be submitted to ODEQ with the permit application for the new CCR unit or expansion of the permitted boundary. In the event a Federal listed species is involved, ODWC refers the matter to USFWS. For purposes of wetlands, OAC 252:517-5-2(a)(2)(C) contains the same restrictions as 40 CFR 257.61(a)(2)(iii). Any additional ESA requirements beyond what is set out in the Federal and state provisions being compared must still be complied with by all facilities under ODEQ's rules. OAC 252:517-1-2 expressly provides that compliance with Chapter 517 does not affect the need for a CCR facility to comply with any other applicable Federal, state, tribal, or local laws or requirements. Therefore, compliance with Chapter 517 does not preclude any additional ESA requirements.

    Overall, based on our analysis, EPA concludes that Oklahoma's Endangered Species Act provisions are as protective as the Federal standards.

    C. EPA Responses to Major Comments on the Proposed Determination

    Below is a summary of the major comments received on the February 20, 2018, proposed notification: Approval of Coal Combustion Residuals State Permit Programs: Oklahoma. (EPA-HQ-OLEM-2017-0613-0013). The major comments received focused on three primary topics: Facility compliance with (and state oversite of) state and Federal groundwater protection standards for CCR units, public participation under the Oklahoma CCR permitting program and facility compliance with the Endangered Species Act. Responses to all other comments received are summarized in the Response to Comments document included in the docket for this document.

    Commenters raised a number of questions or concerns about compliance issues at individual facilities, with varying specificity and supporting data. EPA is not making any determinations regarding the compliance status of individual facilities based on the public comment process for this action. However, some commenters raised these concerns about compliance issues in the broader context of program approval, and questioned whether Oklahoma has the ability and inclination to fully implement an approved program. EPA has reviewed all significant comments on this issue, and has identified evidence of actions taken by ODEQ to address instances of non-compliance through notices and consent orders.

    EPA reviews of state program applications focus primarily on the legal and regulatory framework that the state puts forward. The Agency has determined that the underlying statutes and regulations, provide Oklahoma the authority to implement the program, and that there is evidence that Oklahoma has utilized its authority to implement these provisions since it adopted the Federal standards in 2016, and also prior to that time. Given that Oklahoma is in the early stages of implementing its new CCR rules, it is not unexpected that compliance with those rules across the state may be evolving. EPA does not view instances of non-compliance as a reason to deny approval of a State program. Implementation and enforcement of Oklahoma's CCR requirements in Oklahoma are expected to continue, and enforcement of those provisions may be initiated not only by ODEQ, but also by EPA or citizens, as appropriate. In accordance with the WIIN Act, the Agency must also conduct continuing periodic reviews of state permit programs (see Section IV below for additional details).

    1. Compliance With Groundwater Standards

    Comments: When CCR is dumped without proper safeguards, hazardous chemicals are released to groundwater, surface water, soil and air, and nearby communities and ecosystems are harmed. There is evidence that CCR regulatory oversight by state agencies has failed to prevent contamination of Oklahoma's fresh groundwater or CCR from blowing into and harming Oklahoma communities.

    For example, recent groundwater monitoring conducted at Oklahoma CCR units pursuant to the Federal CCR rule shows that groundwater can contain contaminants at levels significantly higher than the corresponding Maximum Concentration Levels (MCLs) established under the Safe Drinking Water Act.9 Other harmful metals were found in concentrations multiple times greater than the Regional Screening Levels for tap water. Chloride, fluoride, sulfate and total dissolved solids (“TDS”)—all indicators of coal ash pollution—were also found in elevated concentrations in the groundwater. Other recent groundwater testing showed high concentrations of arsenic, lead, mercury, nickel, selenium, and vanadium.

    9 Maximum Contaminant Levels (MCLs) are standards that are set by the EPA for drinking water quality. An MCL is the legal threshold limit on the amount of a substance that is allowed in public water systems under the Safe Drinking Water Act.

    Response: Under both the Federal CCR regulations and the state program, the determination that a release has occurred that may result in contamination of groundwater is not determined solely by contaminant concentrations that exceed an MCL or Regional Screening Levels cited above.10 Rather, it is first determined if those exceedances represent statistically significant increases (SSIs) of Appendix III and IV contaminants over background levels. Corrective action is required when there is an SSI of any Appendix IV contaminants that exceeds the groundwater protection standard, typically set at the applicable MCL. (See 40 CFR 257.96(a), OAC 252-917-9-5,6).

    10 RSLs are screening levels generally used for Superfund sites to determine the need for further remedial action. www.epa/risk/regional-screening-levels.

    Public comments and EPA's analysis both indicate that some Oklahoma CCR units may not currently be in compliance with OAC standards requiring the establishment of a groundwater monitoring program and the posting of the first annual groundwater monitoring report.11 As discussed above, the state is addressing such instances of noncompliance through inspection or investigation. In general, ODEQ may give the owner or operator of the unit a written notice of the specific violation and the duty to correct it (a notice of deficiency). The failure to do so can result in the issuance of a compliance order (CO). If the owner or operator fails to come into compliance or fails to agree to a schedule to come into compliance, the Department may issue a CO, which becomes final within fifteen days unless an administrative enforcement hearing is requested. The CO may assess administrative penalties for each day the owner or operator fails to comply. If a facility does not comply with a CO or an administrative compliance order (ACO) within the specified time frames, an Assessment Order to impose an additional penalty may be issued. ODEQ may also pursue action in District Court for an injunction to require a facility to comply and, in rare and extreme instances, may seek to revoke or suspend the permit of a facility. Criminal enforcement proceedings may also be pursued in some instances.12

    11 October 17, 2017 was the compliance deadline for instillation of groundwater monitoring, sampling and analysis and initial detection monitoring (see 40 CFR 257.90).

    12 Email from Patrick Riley, ODEQ to Mary Jackson, EPA. April 27, 2018. Included in the docket for this authorization.

    Oklahoma has provided evidence that it has taken actions to ensure that all CCR facilities covered by the OAC standards are either complying with or will be put on a schedule to comply with the applicable groundwater monitoring requirements.13

    13 Ibid.

    The Agency notes that Oklahoma facilities have submitted most of the compliance documents that are required to be placed on the facilities' internet site (see OAC 252:517-19-1). Oklahoma has provided information to EPA about its current enforcement strategy for this requirement. Specifically, when documents that are required to be posted to the internet are received, permit engineers will check to ensure those documents have been posted to a facility's website. Compliance inspections will include website reviews as part of records checks during annual, in-depth inspections. Failure to maintain required documents on a facility's public website will be handled similarly to a deficient record, and as an issue of noncompliance.14

    14 Ibid.

    2. Public Participation i. Permitting and Enforcement

    Comments: Oklahoma's CCR program fails to provide adequate opportunities for public participation in the development, revision, implementation, and enforcement of its CCR regulations. For permitting, the program fails to require new CCR units to submit key compliance proposals and compliance demonstrations in permit applications, such as groundwater monitoring plans, sampling and analysis plan, plans and specifications relating to design requirements (i.e. structural stability assessments), retrofit plans and post-closure care plans. The public is not provided an opportunity to review and comment on those documents during the permitting process. For existing CCR units, Oklahoma is entirely depriving the public of any opportunity to review and comment on permit applications, associated supporting documents, and even the CCR unit's permit itself prior to issuance of that permit.

    Oklahoma's program grants CCR units a “permit for life” without providing the public any opportunity to review and comment on those critical site-specific compliance documents before the permitting decision is made.

    Finally, Oklahoma failed to show that its CCR program affords the public participation opportunities in enforcement required by RCRA section 7004(b)(1) and set forth in 40 CFR 239.75. Specifically, the state has not shown that it provides for citizen intervention in civil enforcement proceedings.

    Response: The Agency does not agree that the Oklahoma program fails to provide public participation opportunities for enforcement and for permitting. State regulations require new CCR units to submit plans containing compliance proposals and compliance demonstrations in permit applications. As discussed in section III. A. (1), Oklahoma statutes and regulations (section 27A-2-14-201(B)(1) and OAC 252:4-7-58 through 60) set out the appropriate tier for processing permit applications and modifications. These classifications are consistent with the requirements for all other Oklahoma solid waste disposal facilities (OAC 252:4-7-58 through 60 apply to all solid waste disposal facilities).

    All plans and subsequent modifications fall within the permitting tier classifications and are approved either through review and action on an original permit application or as a subsequent modification to that permit. The permit general conditions provide that any permit noncompliance, including noncompliance with the original permit or any subsequent permit modification, is grounds for an enforcement action. ODEQ has the authority to evaluate permit applications for administrative and technical completeness and request changes,15 revisions, corrections, or supplemental submissions to ensure consistency with the Chapter 517 code and all rules. ODEQ may also evaluate plans or other supplemental attachments to applications for sufficiency of content and compliance and require that omissions or inaccuracies be remedied.

    15 Oklahoma CCR Program Application in docket for this document.

    Regarding lack of public participation for existing permits for CCR landfills, each application and permit would have been required to provide the appropriate public participation opportunities when those permits were issued. When the permits are modified, the OAC will require public participation according to the established tiering classifications in UEPA (see section 27A-2-14-201(B)(1) and OAC 252:4-7-58 through 60). Examples of Tier II modifications for previously permitted CCR landfills are provided in the docket for this action. Each Tier II or Tier III modification allows for the opportunity for public participation.

    Unlike CCR landfill units, surface impoundments were not previously permitted by ODEQ. In accordance with state and Federal CCR standards, permit applications for surface impoundments for regulation under OAC 252:517 must be submitted to ODEQ by October 2018. These new surface impoundment permits authorizing disposal of CCR generated onsite, will follow ODEQs Tier II process and provide opportunity for public participation.

    Nothing in the Federal rule prohibits granting such permits for life. The life of a CCR unit begins when it is initially permitted for waste disposal and continues through active operations, closure of the unit, and conclusion of the post-closure monitoring period. The post-closure period begins at closure and continues for a minimum of 30 years. With the exception of an ODEQ enforcement action to revoke a facility's permit, a facility's permit will not terminate until the facility successfully completes closure, post-closure and any corrective action requirements. The facility's closure, post-closure, and corrective action plans are all available through ODEQ and on the facility's publicly accessible internet site. The ability for the public to comment on the initial plans and any subsequent modifications will depend on the associated permitting tier classification when applications for modifications are submitted to ODEQ.

    Regarding public participation opportunities in enforcement required by RCRA section 7004(b)(1), ODEQ has reaffirmed that its CCR program allows intervention by right (see 12 OK Stat section 12-2024).16 In addition, ODEQ's CCR program provides a process to respond to citizen complaints (see 27A O.S. section 2-3-101,503) and by not opposing citizen intervention when allowed by statute (see 27A O.S. section 2-7-133). In the event any member of the public believes a facility is not in compliance with any permitting requirement, the ODEQ complaints program requires investigation and the expedient resolution of complaints involving noncompliance with statutory, regulatory, and permitting requirements. See ODEQ Application on page 8. In the event a complainant remains unsatisfied with the resolution of a complaint, mediation is available by statute. See ODEQ Application on page 9.

    16 Email from Patrick Riley, ODEQ to Mary Jackson, EPA April 27, 2018. Included in the docket for this authorization.

    This satisfies the civil intervention requirement at 40 CFR 239.9(a), and on that basis, EPA considers the requirements of RCRA section 7004(b) satisfied.

    ii. Permit Modifications

    Comment: Most permit modifications are Tier I, which does not require public participation.

    Response: The Agency agrees that under OAC rules, most permit modifications are Tier I since they address minor or administrative changes to the permit, which can occur frequently. All existing CCR landfills in the state submitted Tier I modification requests to change the applicable standards in their permit from the previous state solid waste standards at OAC 252:215 to the new CCR standards at OAC 252:217. As a Tier I modification, the public would not have had opportunity for input into these 252:517 CCR landfill permits. Further, the public will not have opportunity for comment on these “permits for life” in the future unless the permit is modified under a Tier II or Tier III modification (see preceding discussion on comment/response above).

    Based on information submitted by the state comparing standards under OAC 252:215 and OAC 252:217 (included in the docket for this authorization), the Agency has concluded that for existing landfill units, the standards under the two sets of regulations were substantially the same and the public participation opportunities were appropriate. Specifically, as indicated previously, each application and permit issuance under OAC 252:515, including permit modifications, would have included the public participation opportunities that were required when those permits were issued. Public participation requirements under the previous program in OAC 252:515 and the current program in OAC 252:517 are authorized by the same standard under Oklahoma UEPA (27A O.S. section 2-14-104).

    As discussed above, permit applications for new units classified as Tier II (for on-site facilities) and Tier III (for off-site facilities) require public notice and comment and the opportunity for a public hearing. In the case of Tier II and III applications that do not receive timely comments or public meeting requests and for which no public meeting was held, ODEQ considers the comments and then prepares a response to comments prior to final permit issuance determinations. The Department makes available Tier II applications and draft permits and Tier III applications, draft permits, and proposed permits on the Department's website.17

    17 Oklahoma CCR Program Application in docket for this document.

    As discussed, Tier II and III permit modifications focus on substantive changes and require public participation for any permit modifications not specifically covered under Tier I. The Tier II and III permit application processes include: Published notice of the application filing, published notice of the draft permit or denial, and opportunity for a public meeting. In determining the appropriate Tier for an application, the significance of the potential impact on the environment and other criteria outlined in III. A. 1 are considered.

    iii. Endangered Species Act

    Comment: Under the ESA, Federal agencies must, in consultation with FWS and/or NMFS, insure that any action authorized, funded, or carried out by the agency is not likely to jeopardize the continued existence of endangered or threatened species or result in the destruction or adverse modification of designated critical habitat. 16 U.S.C. 1536(a)(2). An agency proposing an action must first determine whether the action “may affect” species listed as threatened or endangered under the ESA. 50 CFR 402.14. EPA's proposal to approve Oklahoma's Application creates a significant risk that CCR units in the state would pollute water more than if EPA did not approve that Application, and thus the proposed action may affect listed species within the meaning of 50 CFR 402.14. As a result, EPA must initiate consultation with FWS and NMFS under ESA Section 7 prior to making a final determination as to whether to approve or deny Oklahoma's Application. See generally Nat'l Parks Conservation Ass'n v. Jewell, 62 F. Supp. 3d at 17 (finding that a 2008 rule revising standards for coal mining near streams may affect listed species where there was “clear evidence that habitats within stream buffer zones are home to threatened and endangered species and that mining operations affect the environment, water quality, and all living biota”).

    Response: As discussed in section III.B.2, EPA has concluded that Oklahoma's regulation applicable to endangered and threatened species (OAC 252:517-5-8) is at least as protective as the Federal criteria in 40 CFR 257.3-2. Having made this determination, RCRA section 4005(d)(1)(C) expressly mandates that EPA approve the state's program. Therefore, consistent with 50 CFR 402.03, the requirement for EPA to consult under section 7(a)(2) of the ESA does not apply to this action.

    IV. Approval of the ODEQ CCR Permitting Program

    On July 30, 2018, for those CCR units that are currently permitted and regulated by ODEQ under OAC 252:517, such permits will be in effect in lieu of the Federal 40 CFR part 257, subpart D, CCR regulations. For those CCR units that are not yet permitted, the Federal regulations at part 257 will remain in effect until such time that ODEQ issues permits under this CCR program for those units.

    The WIIN Act specifies that EPA will review a state CCR permit program:

    • From time to time, as the Administrator determines necessary, but not less frequently than once every 12 years;

    • Not later than 3 years after the date on which the Administrator revises the applicable criteria for CCR units under part 257 of title 40, CFR (or successor regulations promulgated pursuant to sections 1008(a)(3) and 4004(a));

    • Not later than 1 year after the date of a significant release (as defined by the Administrator), that was not authorized at the time the release occurred, from a CCR unit located in the state; and

    • In request of any other state that asserts that the soil, groundwater, or surface water of the state is or is likely to be adversely affected by a release or potential release from a CCR unit located in the state for which the program was approved.

    The WIIN Act also provides that in a state with an approved CCR permitting program, the Administrator may commence an administrative or judicial enforcement action under section 3008 if:

    • The state requests that the Administrator provide assistance in the performance of an enforcement action; or

    • After consideration of any other administrative or judicial enforcement action involving the CCR unit, the Administrator determines that an enforcement action is likely to be necessary to ensure that the CCR unit is operating in accordance with the criteria established under the state's permit program.

    Further, in the case of an enforcement action by the Administrator, before issuing an order or commencing a civil action, the Administrator shall notify the state in which the coal combustion residuals unit is located.

    V. Action

    In accordance with 42 U.S.C. 6945(d), EPA is approving ODEQ's CCR permit program application.

    Dated: June 18, 2018. E. Scott Pruitt, Administrator.
    [FR Doc. 2018-13461 Filed 6-27-18; 8:45 am] BILLING CODE 6560-50-P
    FEDERAL COMMUNICATIONS COMMISSION 47 CFR Parts 2 and 90 [PS Docket Nos. 13-87, 06-229; WT Docket No. 96-86, RM-11433, RM-11577; FCC 16-111] Service Rules Governing Narrowband Operations in the 769-775/799-805 MHz Bands AGENCY:

    Federal Communications Commission.

    ACTION:

    Final rule.

    SUMMARY:

    In this document, the Federal Communications Commission (Commission) amends the Commission's rules to promote spectrum efficiency, interoperability, and flexibility in 700 MHz public safety narrowband (769-775/799-805 MHz).

    DATES:

    Effective July 30, 2018.

    FOR FURTHER INFORMATION CONTACT:

    John A. Evanoff, Policy and Licensing Division, Public Safety and Homeland Security Bureau, (202) 418-0848 or [email protected]

    SUPPLEMENTARY INFORMATION:

    This is a summary of the Commission's Second Report and Order on Reconsideration in PS Docket No. 13-87, FCC 18-11, released on February 12, 2018, and corrected by Erratum released on May 10, 2018. The complete text of this document is also available for inspection and copying during normal business hours in the FCC Reference Information Center, Portals II, 445 12th Street SW, Room CY-A257, Washington, DC 20554. 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

    In this Second Report and Order, the Commission amends and clarifies the Commission's 700 MHz narrowband (769-775/799-805 MHz) interoperability and technical rules. Specifically, this Second Report and Order (1) amends and clarifies the rules to exempt 700 MHz low-power Vehicular Repeater Systems (VRS) from the 700 MHz trunking requirements; (2) amends the rules to ensure that 700 MHz public safety licensees receive information on the basis of vendor assertions that equipment is interoperable across vendors and complies with Project 25 (P25) standards; and (3) amends the rules to require that all narrowband mobile and portable 700 MHz public safety radios, as supplied to the ultimate user, must be capable of operating on all of the narrowband nationwide interoperability channels without addition of hardware, firmware, or software, and must be interoperable across vendors and operate in conformance with P25 standards.

    In the companion Order on Reconsideration, the Commission addresses the Petition for Partial Reconsideration filed by Motorola Solutions, Inc. (Motorola), which requested that the Commission postpone the effective date of certain previously adopted rules (i.e. 47 CFR Sections 2.1033(c) and 90.548(c)) until complementary proposals that were the subject of the Further Notice of Proposed Rulemaking in this proceeding are resolved. As requested by Motorola, we adopt a uniform effective date for the rules that were the subject of the Motorola Petition for Partial Reconsideration and the rules newly adopted in this Second Report and Order.

    Procedural Matters

    The Final Regulatory Flexibility Analysis required by section 604 of the Regulatory Flexibility Act, 5 U.S.C. 604, is included in Appendix A of the Second Report and Order and Order on Reconsideration.

    Final Regulatory Flexibility Analysis

    As required by the Regulatory Flexibility Act of 1980, as amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated into the Further Notice of Proposed Rule Making (FNPRM) in PS Docket No. 13-87 released on August 22, 2016. See 81 FR 65984 (2016). The Commission sought written public comment on proposals in the FNPRM, including comments on the IRFA. No comments were filed addressing the IRFA. The present Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.

    Need for, and Objectives of, the Final Rules

    In the Second Report and Order in this proceeding, we amend the interoperability and technical rules governing 700 MHz public safety narrowband spectrum (769-775 MHz and 799-805 MHz). The rule changes promote interoperable and efficient use of 700 MHz public safety narrowband spectrum while reducing the regulatory burdens on public safety entities, manufacturers and other stakeholders wherever possible. In order to achieve these objectives, we revise the rules to exempt low power vehicular repeater systems (VRS) from the narrowband trunking requirements. Exempting low power VRS from the trunking requirements will facilitate rapid deployment of such systems as well as reduce compliance burdens on public safety entities that currently lack access to trunked equipment. We also amend the rule to clarify that the trunking requirement applies to fixed infrastructure.

    We adopt a list of feature sets and capabilities that must be tested in order to ensure that radios operating in the conventional mode on the designated 700 MHz narrowband interoperability channels are in fact interoperable across vendors. Adopting such a list promotes certainty for public safety and manufacturers and promotes competition in the public safety equipment market.

    We amend the rules concerning the requirement that 700 MHz radios be capable of being programmed to operate on the designated 700 MHz narrowband interoperability channels. Clarification provides greater certainty to equipment manufacturers on the required performance of their equipment.

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

    There were no comments filed that specifically addressed the rules and policies proposed in the IRFA.

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

    Pursuant to the Small Business Jobs Act of 2010, which amended the RFA, the Commission is required to respond to any comments filed by the Chief Counsel for Advocacy of the Small Business Administration (SBA), and to provide a detailed statement of any change made to the proposed rules as a result of those comments.

    The Chief Counsel did not file any comments in response to the proposed rules in this proceeding.

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

    The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules adopted herein. 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.

    Public Safety Radio Licensees. As a general matter, Public Safety Radio licensees include police, fire, local government, forestry conservation, highway maintenance, and emergency medical services. Because of the vast array of public safety licensees, the Commission has not developed a small business size standard specifically applicable to public safety licensees. The closest applicable SBA category is Wireless Telecommunications Carriers (except Satellite) which encompasses business entities engaged in radiotelephone communications. The appropriate size standard for this category under SBA rules is that such a business is small if it has 1,500 or fewer employees. For this industry, U.S. Census data for 2012 show that there were 967 firms that operated for the entire year. Of this total, 955 firms had employment of 999 or fewer employees and 12 had employment of 1,000 employees or more. Thus under this category and the associated size standard, the Commission estimates that the majority of wireless telecommunications carriers (except satellite) are small entities. With respect to local governments, in particular, since many governmental entities comprise the licensees for these services, we include under public safety services the number of government entities affected. According to Commission records, there are a total of approximately 133,870 licenses within these services. There are 1,476 licenses in the 700 MHz band, based on an FCC Universal Licensing System search of May 25, 2017. Public Safety Radio licensees are not required to disclose information about number of employees, therefore the Commission does not have information that could be used to determine how many Public Safety Radio licensees constitute small entities under this definition. Nevertheless, we estimate that fewer than 486 public safety radio licensees hold these licenses because certain entities may have multiple licenses.

    Wireless Telecommunications Carriers (except Satellite). This industry comprises establishments engaged in operating and maintaining switching and transmission facilities to provide communications via the airwaves. Establishments in this industry have spectrum licenses and provide services using that spectrum, 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, U.S. Census data for 2012 show that there were 967 firms that operated for the entire year. Of this total, 955 firms had employment of 999 or fewer employees and 12 had employment of 1,000 employees or more. Thus under this category and the associated size standard, the Commission estimates that the majority of wireless telecommunications carriers (except satellite) are small entities.

    The Commission's own data—available in its Universal Licensing System—indicate that, as of October 25, 2016, there are 280 Cellular licensees that will be affected by our actions today. The Commission does not know how many of these licensees are small, as the Commission does not collect that information for these types of 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, and Specialized Mobile Radio Telephony services. Of this total, an estimated 261 have 1,500 or fewer employees, and 152 have more than 1,500 employees. Thus, using available data, we estimate that the majority of wireless firms can be considered small.

    Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing. This industry comprises establishments primarily engaged in manufacturing radio and television broadcast and wireless communications equipment. Examples of products made by the establishments are: Transmitting and receiving antennas, cable television equipment, GPS equipment, pagers, cellular phones, mobile communications equipment, and radio and television studio and broadcasting equipment. The Small Business Administration has established a size standard for this industry of 750 employees or fewer. U.S. Census data for 2012 show that 841 establishments operated in this industry in that year. Of that number, 828 establishments operated with fewer than 1,000 employees, 7 establishments operated with between 1,000 and 2,499 employees and 6 establishments operated with 2,500 or more employees. Based on this data, we conclude that a majority of manufacturers in this industry is small.

    Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements

    The rules adopted in the Second Report and Order will not entail additional reporting, recordkeeping, and/or third-party consultation for small entities to comply.

    Steps Taken To Minimize Significant Economic Impact on Small Entities, and Significant Alternatives Considered

    The RFA requires an agency to describe any significant, specifically small business 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) and exemption from coverage of the rule, or any part thereof, for small entities.”

    The Second Report and Order changes the interoperability and technical rules covering operation of public safety systems on narrowband spectrum in the 700 MHz band. Specifically, the Second Report and Order amends Section 90.537 of the Commission's rules to promote efficient use of public safety narrowband spectrum in the band while reducing economic burdens on licensees. For the 700 MHz General Use and State License channels, Section 90.537 provides that “[a]ll systems using six or more narrowband channels in the 769-775 MHz and 799-805 MHz frequency bands must be trunked systems, except for those described in paragraph (b) of this section.” In order to strike the proper balance between spectrum efficiency and operational needs as well as avoid unnecessary costs to public safety, the Second Report and Order exempts low power vehicular repeaters from the 700 MHz narrowband trunking requirements and clarifies that the trunking requirement applies to individual transmitter sites.

    The Second Report and Order maximizes interoperability by adopting a list of feature sets and capabilities in radios designed to operate in the conventional mode on the designated 700 MHz narrowband interoperability channels. Currently, the Commission's rules do not specify feature sets or capabilities that should be tested in order to promote interoperability across vendors and between users. Thus, it would be beneficial to incorporate into our rules specific feature sets and capabilities that must be tested for radios designed to operate on the 700 MHz narrowband interoperability channels. To minimize burdens, the Second Report and Order clarifies that manufacturers may employ their own testing protocol, declines to require manufacturers to test non-voice features and capabilities, and refrains from imposing new reporting and record keeping requirements on stakeholders.

    Finally, the Second Report and Order amends the rules concerning the requirement that 700 MHz radios be capable of being programmed to operate on the designated interoperability channels. Amendment provides greater certainty to equipment manufacturers on the required performance of their equipment. Amending the rule obviates the need for imposing new requirements on public safety and manufacturers.

    Report to Congress

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

    Paperwork Reduction Act of 1995 Analysis

    This document does not contain new information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13.

    Congressional Review Act

    The Commission will send a copy of this Second Report and Order and Order on Reconsideration to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

    Federal Rules That May Duplicate, Overlap, or Conflict With the Proposed Rules

    None.

    Ordering Clauses

    Accordingly, it is ordered that, pursuant to sections 1, 4(i), 303, 316, 332, and 337 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 303, 316, 332, and 337, this Second Report and Order is hereby adopted.

    It is further ordered that §§ 2.1033(c)(20), 90.537, 90.547 and 90.548 of the Commission's rules, 47 CFR 2.1033(c)(20), 90.537, 90.547, and 90.548, are amended as set forth in Appendix B. The amendments to §§ 2.1033(c)(20), 90.537, 90.547 and 90.548 of the Commission's rules, 47 CFR 2.1033(c)(20), 90.537, 90.547 and 90.548, shall become effective thirty days after publication of this Second Report and Order in the Federal Register.

    It is further ordered that the Petition for Clarification of Motorola Solutions, Inc. filed March 1, 2016, is granted, to the extent discussed in this Second Report and Order.

    It is further ordered, pursuant to sections 4(i), and 405 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), and 405(a), and § 1.429 of the Commission's rules, 47 CFR 1.429, that the Petition for Partial Reconsideration filed October 31, 2016, by Motorola Solutions, Inc. is granted to the extent discussed in this Second Report and Order and Order on Reconsideration.

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

    It is further ordered that the Commission shall send a copy of this Second Report and Order in a report to be sent to Congress and the General Accounting Office pursuant to the Congressional Review Act, 5 U.S.C. 801(a)(1)(A).

    List of Subjects in 47 CFR Parts 2 and 90

    Radio.

    Federal Communications Commission. Marlene Dortch, Secretary. Final Rules

    For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR parts 2 and 90 as follows:

    PART 2—FREQUENCY ALLOCATIONS AND RADIO TREATY MATTERS; GENERAL RULES AND REGULATIONS 1. The authority citation for part 2 continues to read as follows: Authority:

    47 U.S.C. 154, 302, 303, 307, 336, and 337, unless otherwise noted.

    2. Section 2.1033 is amended by revising paragraph (c)(20) to read as follows:
    § 2.1033 Application for certification.

    (c) * * *

    (20) Before equipment operating under part 90 of this chapter and capable of operating on the 700 MHz interoperability channels (See § 90.531(b)(1) of this chapter) may be marketed or sold, the manufacturer thereof shall have a Compliance Assessment Program Supplier's Declaration of Compliance and Summary Test Report or, alternatively, a document detailing how the manufacturer determined that its equipment complies with § 90.548 of this chapter and that the equipment is interoperable across vendors. Submission of a 700 MHz narrowband radio for certification will constitute a representation by the manufacturer that the radio will be shown, by testing, to be interoperable across vendors before it is marketed or sold.

    PART 90—PRIVATE LAND MOBILE RADIO SERVICE 3. The authority citation for part 90 continues to read as follows: Authority:

    Sections 4(i), 11, 303(g), 303(r), and 332(c)(7) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 161, 303(g), 303(r), and 332(c)(7), and Title VI of the Middle Class Tax Relief and Job Creation Act of 2012, Pub. L. 112-96, 126 Stat. 156.

    4. Section 90.537 is amended by revising paragraph (a) to read as follows:
    § 90.537 Trunking requirement.

    (a) General use and State License channels. All fixed transmitter sites using six or more narrowband channels in the 769-775 MHz and 799-805 MHz frequency bands must be trunked, except for those described in paragraph (b) of this section. This paragraph does not apply to Vehicular Repeater Systems (MO3) authorized on the General Use and State License channels listed in § 90.531(b).

    5. Section 90.547 is amended by revising paragraph (a) introductory text to read as follows:
    § 90.547 Narrowband Interoperability channel capability requirement.

    (a) Except as noted in this section, mobile and portable transmitters operating on narrowband channels in the 769-775 MHz and 799-805 MHz frequency bands must be capable of operating on all of the designated nationwide narrowband Interoperability channels pursuant to the standards specified in this part. Provided, however, that the licensee need not program such transmitters to make all interoperability channels accessible to the end user.

    6. Section 90.548 is amended by revising paragraph (c) and adding paragraph (d) to read as follows:
    § 90.548 Interoperability Technical Standards.

    (c) Transceivers capable of operating on the narrowband Interoperability channels listed in § 90.531(b)(1) shall not be marketed or sold unless the transceiver has previously been certified for interoperability by the Compliance Assessment Program (CAP) administered by the U.S. Department of Homeland Security; provided, however, that this requirement is suspended if the CAP is discontinued. Submission of a 700 MHz narrowband radio for certification will constitute a representation by the manufacturer that the radio will be shown, by testing, to be interoperable across vendors before it is marketed or sold. In the alternative, manufacturers may employ their own protocol for verifying compliance with Project 25 standards and determining that their product is interoperable among vendors. In the event that field experience reveals that a transceiver is not interoperable, the Commission may require the manufacturer thereof to provide evidence of compliance with this section.

    (d) Transceivers capable of conventional operations on the narrowband Interoperability channels listed in § 90.531(b)(1) must, at a minimum, include the following feature sets and capabilities while operating in the conventional mode to be validated for compliance with the Project 25 standards consistent with § 2.1033(c)(20) of this chapter and paragraph (c) of this section.

    (1) A subscriber unit must be capable of issuing group calls in a conventional system in conformance with the following standards: TIA 102.BAAD-B Conventional Procedures (2015), Section 6.1 with validation testing according to TIA-102.CABA Interoperability Testing for Voice Operation in Conventional Systems (2010), Test Case 2.2.2.4.1, and Test Case 2.4.2.4.1.

    (2) Two Project 25 standard squelch modes, Monitor Squelch and Normal Squelch, must be supported in conformance with the following standards: TIA 102.BAAD-B Conventional Procedures (2015), Section 6.1.1.3 with validation testing according to TIA-102.CABA Conventional Interoperability Testing for Voice Operation in Conventional Systems (2010), Test Case 2.2.3.4.1, Test Case 2.2.1.4.1 (Direct, normal squelch), Test Case 2.4.9.4.1 (Repeated, monitor squelch), and Test Case 2.4.1.4.1 (Repeated, normal squelch).

    (3) A subscriber unit must properly implement conventional network access codes values (NAC) of $293 and $F7E in conformance with the following standards: TIA-102.BAAC-C Common Air Interface Reserved Values (2011), Section 2.1 with validation testing according to TIA-102.CABA Interoperability Testing for Voice Operation in Conventional Systems (2010), Test Case 2.2.1.4.1 and Test Case 2.2.8.4.1.

    (4) A fixed conventional repeater must be able to repeat the correct/matching network access code (NAC) for all subscriber call types (clear and encrypted) using the same output NAC in conformance with the following standards: TIA 102.BAAD-B Conventional Procedures (2015), Section 2.5 with validation testing according to TIA-102.CABA Interoperability Testing for Voice Operation in Conventional Systems (2010), Test Case 2.4.1.4.1, and Test Case 2.4.2.4.1.

    (5) A fixed conventional repeater must be able to repeat the correct/matching network access code (NAC) for all subscriber call types (clear and encrypted) using a different output NAC in conformance with the following standards: TIA 102.BAAD-B Conventional Procedures (2015), Section 2.5 with validation testing according to TIA-102.CABA Interoperability Testing for Voice Operation in Conventional Systems (2010), Test Case 2.4.3.4.1 and Test Case 2.4.4.4.1.

    (6) A fixed conventional repeater must be able to reject (no repeat) all input transmissions with incorrect network access code (NAC) in conformance with the following standard: TIA 102.BAAD-B Conventional Procedures (2015), Section 2.5 with validation testing according to TIA-102.CABA Interoperability Testing for Voice Operation in Conventional Systems (2010), Test Case 2.4.1.4.1, and Test Case 2.4.2.4.1.

    (7) A fixed conventional repeater must be able to support the correct implementation of network access code (NAC) values $F7E and $F7F in conformance with the following standards: TIA 102.BAAD-B Conventional Procedures (2015), Section 2.5 with validation testing according to TIA-102.CABA Interoperability Testing for Voice Operation in Conventional Systems (2010), Test Case 2.4.5.4.1, Test Case 2.4.6.4.1, and Test Case 2.4.7.4.1.

    [FR Doc. 2018-13859 Filed 6-27-18; 8:45 am] BILLING CODE 6712-01-P
    FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 73 [DA 18-543; MB Docket No. 18-27; RM-11796] Radio Broadcasting Services; Desert Hills, Arizona AGENCY:

    Federal Communications Commission.

    ACTION:

    Final rule.

    SUMMARY:

    At the request of L. Topaz Enterprises, Inc., the Audio Division amends the FM Table of Allotments by adding Channel 292A at Desert Hills, Arizona. We find that the public interest would be served by allotting a second local service at Desert Hills, Arizona. A staff engineering analysis indicates that Channel 292A can be added at Desert Hills, Arizona, as proposed, consistent with the minimum distance separation requirements of the Commission's rules without a site restriction. The reference coordinates are 34-32-58 NL and 114-22-2 WL.

    DATES:

    Effective July 9, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Adrienne Y. Denysyk, Media Bureau, (202) 418-2700.

    SUPPLEMENTARY INFORMATION:

    This is a synopsis of the Commission's Report and Order, MB Docket No. 18-27, adopted May 25, 2018, and released May 25, 2018. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC's Reference Information Center at Portals II, CY-A257, 445 12th Street SW, Washington, DC 20554. The full text is also available online at http://apps.fcc.gov/ecfs/. This document does not contain information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. The Commission will send a copy of the Report and Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

    List of Subjects in 47 CFR Part 73

    Radio, Radio broadcasting.

    Federal Communications Commission. Nazifa Sawez, Assistant Chief, Audio Division, Media Bureau.

    For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 73 as follows:

    PART 73—RADIO BROADCAST SERVICES 1. The authority citation for part 73 continues to read as follows: Authority:

    47 U.S.C. 154, 303, 309, 310, 334, 336, and 339.

    2. Section 73.202(b), the table is amended under Arizona, by adding Desert Hills, Channel 292A, in alphabetical order to read as follows:
    § 73.202 Table of Allotments.

    (b) * * *

    Channel No. *    *    *    *    * Arizona *    *    *    *    * Desert Hills 292A *    *    *    *    *
    [FR Doc. 2018-13794 Filed 6-27-18; 8:45 am] BILLING CODE 6712-01-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 [Docket No. 170817779-8161-02] RIN 0648-XG317 Fisheries of the Exclusive Economic Zone Off Alaska; Alaska Plaice in the Bering Sea and Aleutian Islands Management Area AGENCY:

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

    ACTION:

    Temporary rule; closure.

    SUMMARY:

    NMFS is prohibiting directed fishing for Alaska plaice in the Bering Sea and Aleutian Islands management area (BSAI). This action is necessary to prevent exceeding the 2018 Alaska plaice total allowable catch (TAC) specified for the BSAI.

    DATES:

    Effective 1200 hrs, Alaska local time (A.l.t.), June 25, 2018, through 2400 hrs, A.l.t., December 31, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Steve Whitney, 907-586-7228.

    SUPPLEMENTARY INFORMATION:

    NMFS manages the groundfish fishery in the BSAI exclusive economic zone according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

    The 2018 Alaska plaice TAC specified for the BSAI is 16,100 metric tons as established by the final 2018 and 2019 harvest specifications for groundfish in the BSAI (83 FR 8365, February 27, 2018).

    In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS, (Regional Administrator) has determined that the 2018 Alaska plaice TAC in the BSAI will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 15,100 mt, and is setting aside the remaining 1,000 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for Alaska plaice in the BSAI.

    While this closure is effective the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.

    Classification

    This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the directed fishery closure of Alaska plaice in the BSAI. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of June 22, 2018.

    The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

    This action is required by § 679.20 and is exempt from review under Executive Order 12866.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: June 25, 2018. Alan D. Risenhoover, Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2018-13918 Filed 6-25-18; 4:15 pm] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 [Docket No. 170817779-8161-02] RIN 0648-XG316 Fisheries of the Exclusive Economic Zone Off Alaska; Other Flatfish in the Bering Sea and Aleutian Islands Management Area AGENCY:

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

    ACTION:

    Temporary rule; closure.

    SUMMARY:

    NMFS is prohibiting directed fishing for other flatfish in the Bering Sea and Aleutian Islands management area (BSAI). This action is necessary to prevent exceeding the 2018 other flatfish total allowable catch (TAC) specified for the BSAI.

    DATES:

    Effective 1200 hrs, Alaska local time (A.l.t.), June 25, 2018, through 2400 hrs, A.l.t., December 31, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Steve Whitney, 907-586-7228.

    SUPPLEMENTARY INFORMATION:

    NMFS manages the groundfish fishery in the BSAI exclusive economic zone according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

    The 2018 other flatfish TAC specified for the BSAI is 4,000 metric tons as established by the final 2018 and 2019 harvest specifications for groundfish in the BSAI (83 FR 8365, February 27, 2018).

    In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS, (Regional Administrator) has determined that the 2018 other flatfish TAC in the BSAI will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 3,000 mt, and is setting aside the remaining 1,000 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for Alaska plaice in the BSAI.

    While this closure is effective the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.

    Classification

    This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the directed fishery closure of other flatfish in the BSAI. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of June 22, 2018.

    The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

    This action is required by § 679.20 and is exempt from review under Executive Order 12866.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: June 25, 2018. Alan D. Risenhoover, Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2018-13917 Filed 6-25-18; 4:15 pm] BILLING CODE 3510-22-P
    83 125 Thursday, June 28, 2018 Proposed Rules DEPARTMENT OF ENERGY 10 CFR Parts 429 and 430 [EERE-2018-BT-TP-0004] Energy Conservation Program: Test Procedures for Cooking Products, Notice of Petition for Rulemaking AGENCY:

    Office of Energy Efficiency and Renewable Energy, Department of Energy (DOE).

    ACTION:

    Notification of petition for rulemaking; reopening of the public comment period.

    SUMMARY:

    This document reopens the public comment period for submitting comments, data and information on the Association of Home Appliance Manufacturers (AHAM) petition to withdraw the conventional cooking top test procedure published on April 25, 2018. The public comment period closed on June 25, 2018 and is reopened for 21 days until July 19, 2018.

    DATES:

    DOE is reopening the comment period for AHAM's petition to withdraw the cooking top test procedure published on April 25, 2018 (83 FR 17944). Submit comments July 19, 2018.

    ADDRESSES:

    Interested persons are encouraged to submit comments, identified by “Test Procedure Cooking Products Petition,” by any of the following methods:

    Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.

    Email: [email protected] Include the docket number EERE-2018-BT-TP-0004 in the subject line of the message.

    Mail: Appliance and Equipment Standards Program, U.S. Department of Energy, Building Technologies Office, Mailstop EE-5B, 1000 Independence Avenue SW, Washington, DC, 20585-0121, identified by docket number EERE-2018-BT-TP-0004. If possible, please submit all items on a compact disc (CD), in which case it is not necessary to include printed copies.

    Hand Delivery/Courier: Appliance and Equipment Standards Program, U.S. Department of Energy, Building Technologies Office, 950 L'Enfant Plaza SW, Suite 600, Washington, DC 20024. Telephone: (202) 586-6636. If possible, please submit all items on a CD, in which case it is not necessary to include printed copies.

    Docket: For access to the docket to read background documents, or comments received, go to the Federal eRulemaking Portal at http://www.regulations.gov.

    FOR FURTHER INFORMATION CONTACT:

    Celia Sher, U.S. Department of Energy, Office of the General Counsel, 1000 Independence Avenue SW, Washington, DC 20585. Email: [email protected]; (202) 287-6122.

    SUPPLEMENTARY INFORMATION:

    On April 25, 2018, the U.S. Department of Energy (DOE) published a petition from AHAM requesting that DOE reconsider its final rule on Test Procedures for Cooking Products, Docket No. EERE-2012-BT-TP-0013, RIN 1904-AC71, 81 FR 91418 (Dec. 16, 2016) (Final Rule). In the petition, AHAM requested that DOE undertake rulemaking to withdraw the cooking top test procedure, while maintaining the repeal of the oven test procedure that was part of the Final Rule. 83 FR 17944. The notice of petition provided for the written submission of comments by June 25, 2018. AHAM requested an extension of the public comment period to allow additional time for AHAM and its members to provide data responsive to DOE's detailed inquiries regarding the petition. For the same reason, GE Appliances also requested an extension of the comment period.

    DOE has determined that an extension of the public comment period is appropriate to allow interested parties additional time to submit comments for DOE's consideration. Thus, DOE is reopening the comment period by 21 days, until July 19, 2018. DOE will consider any comments received by midnight of July 19, 2018 to be timely submitted.

    Signed in Washington, DC, on June 22, 2018. Kathleen B. Hogan, Deputy Assistant Secretary for Energy Efficiency, Energy Efficiency and Renewable Energy.
    [FR Doc. 2018-13927 Filed 6-27-18; 8:45 am] BILLING CODE 6450-01-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2018-0431; Product Identifier 2018-NE-16-AD] RIN 2120-AA64 Airworthiness Directives; International Aero Engines (IAE) Turbofan Engines AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to adopt a new airworthiness directive (AD) for certain International Aero Engines (IAE) PW1133G-JM, PW1133GA-JM, PW1130G-JM, PW1127G-JM, PW1127GA-JM, PW1127G1-JM, PW1124G-JM, PW1124G1-JM, and PW1122G-JM turbofan engines with a certain high-pressure compressor (HPC) front hub installed. This proposed AD was prompted by corrosion found on the HPC front hub. This proposed AD would require replacing the HPC front hub with a part eligible for installation. We are proposing this AD to address the unsafe condition on these products.

    DATES:

    We must receive comments on this proposed AD by August 13, 2018.

    ADDRESSES:

    You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:

    Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the instructions for submitting comments.

    Fax: 202-493-2251.

    Mail: U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590.

    Hand Delivery: Deliver to Mail address above between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    For service information identified in this NPRM, contact International Aero Engines (IAE), 400 Main Street, East Hartford, CT 06118; phone: 800-565-0140; email: [email protected]; internet: http://fleetcare.pw.utc.com. You may view this service information at the FAA, Engine and Propeller Standards Branch, 1200 District Avenue, Burlington, MA 01803. For information on the availability of this material at the FAA, call 781-238-7759.

    Examining the AD Docket

    You may examine the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0431; or in person at Docket Operations between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this NPRM, the regulatory evaluation, any comments received, and other information. The street address for Docket Operations (phone: 800-647-5527) is listed above. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

    Kevin M. Clark, Aerospace Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7088; fax: 781-238-7199; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Comments Invited

    We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2018-0431; Product Identifier 2018-NE-16-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this NPRM. We will consider all comments received by the closing date and may amend this NPRM because of those comments.

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

    Discussion

    We received a report that corrosion was found on HPC front hub, part number (P/N) 30G2401. The HPC front hub exhibited deposits that could not be removed using standard procedures and worsened over time. After further investigation, pitting corrosion was found below the painted surface. This condition, if not addressed, could result in uncontained HPC front hub release, damage to the engine, and damage to the airplane.

    Related Service Information

    We reviewed Section PW1000G-C-05-10-00-02A-288A-D of the PW1100G-JM Series Airworthiness Limitations Manual, P/N 5316993, dated September 30, 2015. Section PW1000G-C-05-10-00-02A-288A-D provides guidance for an approved FAA method of mixed model cycles since new calculation.

    FAA's Determination

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

    Proposed AD Requirements

    This proposed AD would require removing from service the HPC front hub, P/N 30G2401, and replacing it with a part eligible for installation.

    Costs of Compliance

    We estimate that this proposed AD affects 16 engines installed on airplanes of U.S. registry.

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

    Estimated Costs Action Labor cost Parts cost Cost per
  • product
  • Cost on U.S.
  • operators
  • Replace HPC front hub 0 work-hours × $85 per hour = $0 $11,600 $11,600 $185,600
    Authority for This Rulemaking

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

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

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

    Regulatory Findings

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

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

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

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

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

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

    List of Subjects in 14 CFR Part 39

    Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.

    The Proposed Amendment

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

    PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority:

    49 U.S.C. 106(g), 40113, 44701.

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): International Aero Engines: Docket No. FAA-2018-0431; Product Identifier 2018-NE-16-AD. (a) Comments Due Date

    We must receive comments by August 13, 2018.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to International Aero Engines (IAE) PW1133G-JM, PW1133GA-JM, PW1130G-JM, PW1127G-JM, PW1127GA-JM, PW1127G1-JM, PW1124G-JM, PW1124G1-JM, and PW1122G-JM turbofan engines with high-pressure compressor (HPC) front hub, part number (P/N) 30G2401, installed.

    (d) Subject

    Joint Aircraft System Component (JASC) Code 7230, Turbine Engine Compressor Section.

    (e) Unsafe Condition

    This AD was prompted by corrosion found on the HPC front hub. We are issuing this AD to prevent cracking and failure of the HPC front hub. The unsafe condition, if not addressed, could result in uncontained HPC front hub release, damage to the engine, and damage to the airplane.

    (f) Compliance

    Comply with this AD within the compliance times specified, unless already done.

    (g) Required Actions

    Remove from service the HPC front hub, P/N 30G2401, within 120 days after the effective date of this AD, or as follows, whichever occurs later, and replace with a part eligible for installation:

    (1) For PW1122G-JM, PW1124G1-JM, PW1124G-JM, PW1127G1-JM, PW1127GA-JM, and PW1127G-JM engines, remove the HPC front hub before exceeding 6,180 cycles since new (CSN) or within five years since the ship date listed in Table 1 to paragraph (g) of this AD, whichever occurs first.

    (2) For PW1130G-JM, PW1133GA-JM, and PW1133G-JM engines, remove the HPC front hub before exceeding 4,440 CSN or within four years since the ship date listed in Table 1 to paragraph (g) of this AD, whichever occurs first.

    (3) For engines operating as a mix of models listed in paragraphs (g)(1) and (2) of this AD, remove the HPC front hub using a CSN calculated by an approved FAA method or within four years since the ship date listed in Table 1 to paragraph (g) of this AD, whichever occurs first. You may find guidance for an approved FAA method of mixed model CSN calculation in Section PW1000G-C-05-10-00-02A-288A-D of the PW1100G-JM Series Airworthiness Limitations Manual, P/N 5316993, dated September 30, 2015.

    (4) For any HPC front hub, P/N 30G2401, whose serial number is not listed in Table 1 to paragraph (g) of this AD, use October 21, 2015, as the ship date.

    BILLING CODE 4910-13-P EP28JN18.007 EP28JN18.008 EP28JN18.009 EP28JN18.010 EP28JN18.011 BILLING CODE 4910-13-C (h) Alternative Methods of Compliance (AMOCs)

    (1) The Manager, ECO Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the certification office, send it to the attention of the person identified in paragraph (i)(1) of this AD. You may email your request to: [email protected]

    (2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.

    (i) Related Information

    (1) For more information about this AD, contact Kevin M. Clark, Aerospace Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7088; fax: 781-238-7199; email: [email protected]

    (2) For service information identified in this AD, contact International Aero Engines (IAE), 400 Main Street, East Hartford, CT 06118; phone: 800-565-0140; email: [email protected]; internet: http://fleetcare.pw.utc.com. You may view this referenced service information at the FAA, Engine and Propeller Standards Branch, 1200 District Avenue, Burlington, MA 01803. For information on the availability of this material at the FAA, call 781-238-7759.

    Issued in Burlington, MA, on June 22, 2018. Robert J. Ganley, Manager, Engine and Propeller Standards Branch, Aircraft Certification Service.
    [FR Doc. 2018-13795 Filed 6-27-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2018-0555; Product Identifier 2017-NM-152-AD] RIN 2120-AA64 Airworthiness Directives; BAE Systems (Operations) Limited Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to adopt a new airworthiness directive (AD) for all BAE Systems (Operations) Limited Model 4101 airplanes. This proposed AD was prompted by a report of an improperly installed spacer around the electrical pins in the cartridge connector for the fire bottle extinguisher cartridge. This proposed AD would require repetitive inspections for excessive or missing spacers, and applicable corrective actions. We are proposing this AD to address the unsafe condition on these products.

    DATES:

    We must receive comments on this proposed AD by August 13, 2018.

    ADDRESSES:

    You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:

    Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the instructions for submitting comments.

    Fax: 202-493-2251.

    Mail: U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590.

    Hand Delivery: Deliver to Mail address above between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    For service information identified in this NPRM, contact BAE Systems (Operations) Limited, Customer Information Department, Prestwick International Airport, Ayrshire, KA9 2RW, Scotland, United Kingdom; telephone +44 1292 675207; fax +44 1292 675704; email [email protected]; internet http://www.baesystems.com/Businesses/RegionalAircraft/index.htm. You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.

    Examining the AD Docket

    You may examine the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0555; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this NPRM, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

    Todd Thompson, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3228.

    SUPPLEMENTARY INFORMATION:

    Comments Invited

    We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2018-0555; Product Identifier 2017-NM-152-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this NPRM. We will consider all comments received by the closing date and may amend this NPRM based on those comments.

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

    Discussion

    The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2017-0212, dated October 25, 2017 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all BAE Systems (Operations) Limited Model 4101 airplanes. The MCAI states:

    During scheduled maintenance (fire bottle extinguisher cartridge resistance check) it was noted that on the extinguisher cartridge, the blue spacer around the electrical pins appeared to be located too far forward. It was discovered that, inadvertently, an additional spacer (possibly from a previous extinguisher cartridge) was located in the extinguisher cartridge connector. This effectively shortens the electrical pins in the cartridge connector, which could result in insufficient engagement with the associated sockets on the aeroplane connector. A missing spacer would not affect the electrical connection between the extinguisher cartridge and the aeroplane wiring, but could allow moisture ingress over time.

    Both conditions, if not detected and corrected, could prevent the fire extinguisher bottle from discharging when required, possibly resulting in damage to the aeroplane and injury to occupants.

    To address this potential unsafe condition, BAE Systems (Operations) Ltd issued Service Bulletin (SB) J41-26-009, providing inspection instructions to ensure that a single blue spacer is fitted on the inside of the extinguisher cartridge connector.

    For the reason described above, this [EASA] AD requires a one-time [general visual] inspection [and inspection after a maintenance task that involves disconnection or re-connection of the electrical connector] of the extinguisher cartridge electrical connector and the aeroplane's electrical connector and, depending on findings, removal of excessive spacers or replacement of the fire extinguisher bottle.

    You may examine the MCAI in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0555.

    Related Service Information Under 1 CFR Part 51

    BAE Systems (Operations) Limited has issued Service Bulletin J41-26-009, dated November 23, 2016. This service information describes procedures for a general visual inspection of the cartridge electrical connector and the aircraft electrical connector for missing or excessive spacers, and corrective actions including removing excessive spacers or replacing the fire bottle extinguisher cartridge. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    FAA's Determination and Requirements of This Proposed AD

    This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.

    Costs of Compliance

    We estimate that this proposed AD affects 4 airplanes of U.S. registry.

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

    Estimated Costs for Required Actions Labor cost Parts cost Cost per
  • product
  • Cost on U.S.
  • operators
  • 1 work-hour × $85 per hour = $85 $0 $85 $340

    We estimate the following costs to do any necessary on-condition actions that would be required based on the results of any required actions. We have no way of determining the number of aircraft that might need these on-condition actions:

    Estimated Costs of On-Condition Actions Labor cost Parts cost Cost per
  • product
  • 1 work-hour × $85 per hour = $85 Up to $1,734 Up to $1,819.
    Authority for This Rulemaking

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

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

    This proposed AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to transport category airplanes to the Director of the System Oversight Division.

    Regulatory Findings

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

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

    1. Is not a “significant regulatory action” under Executive Order 12866;

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

    3. Will not affect intrastate aviation in Alaska; and

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

    List of Subjects in 14 CFR Part 39

    Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.

    The Proposed Amendment

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

    PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority:

    49 U.S.C. 106(g), 40113, 44701.

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): BAE Systems (Operations) Limited: Docket No. FAA-2018-0555; Product Identifier 2017-NM-152-AD. (a) Comments Due Date

    We must receive comments by August 13, 2018.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to BAE Systems (Operations) Limited Model 4101 airplanes, certificated in any category, all serial numbers.

    (d) Subject

    Air Transport Association (ATA) of America Code 26, Fire protection.

    (e) Reason

    This AD was prompted by a report of an improperly installed spacer around the electrical pins in the cartridge connector for the fire bottle extinguisher cartridge. We are issuing this AD to detect and correct excessive or missing spacers, which could result in the fire extinguisher bottle not discharging when required, possibly resulting in damage to the airplane.

    (f) Compliance

    Comply with this AD within the compliance times specified, unless already done.

    (g) Inspection

    Within 12 months after the effective date of this AD, do a general visual inspection of the inside of the cartridge electrical connector and the inside of the airplane electrical connector in accordance with the Accomplishment Instructions of the BAE Systems (Operations) Limited Service Bulletin J41-26-009, dated November 23, 2016.

    (h) Inspections After Maintenance

    As of the effective date of this AD, before further flight after each accomplishment of a maintenance task involving disconnection or (re-)connection of an electrical connector of a fire bottle extinguisher cartridge, do a general visual inspection of the inside of the cartridge electrical connector and the inside of the airplane electrical connector in accordance with the Accomplishment Instructions of BAE Systems (Operations) Limited Service Bulletin J41-26-009, dated November 23, 2016.

    (i) Corrective Actions

    (1) If, during any inspection as required by paragraph (g) or (h) of this AD, as applicable, more than one spacer is found inside the cartridge electrical connector: Before further flight, remove the excessive spacer(s) from the inside of the cartridge electrical connector in accordance with the Accomplishment Instructions of BAE Systems (Operations) Limited Service Bulletin J41-26-009, dated November 23, 2016.

    (2) If, during any inspection as required by paragraph (g) or (h) of this AD, as applicable, one or more spacers are found inside the airplane electrical connector: Before further flight, remove all spacers from the inside of the airplane electrical connector in accordance with the Accomplishment Instructions of BAE Systems (Operations) Limited Service Bulletin J41-26-009, dated November 23, 2016.

    (3) If, during any inspection as required by paragraph (g) or (h) of this AD, as applicable, no blue spacer is found inside the cartridge electrical connector body: Before further flight, replace the cartridge in accordance with the Accomplishment Instructions of the BAE Systems (Operations) Limited Service Bulletin J41-26-009, dated November 23, 2016.

    (j) Other FAA AD Provisions

    The following provisions also apply to this AD:

    (1) Alternative Methods of Compliance (AMOCs): The Manager, International Section, Transport Standards Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the International Section, send it to the attention of the person identified in paragraph (k)(2) of this AD. Information may be emailed to: [email protected] Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.

    (2) Contacting the Manufacturer: For any requirement in this AD to obtain corrective actions from a manufacturer, the action must be accomplished using a method approved by the Manager, International Section, Transport Standards Branch, FAA; or the European Aviation Safety Agency (EASA); or BAE Systems (Operations) Limited's EASA Design Organization Approval (DOA). If approved by the DOA, the approval must include the DOA-authorized signature.

    (k) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA AD 2017-0212, dated October 25, 2017; for related information. This MCAI may be found in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0555.

    (2) For more information about this AD, contact Todd Thompson, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3228.

    (3) For service information identified in this AD, contact BAE Systems (Operations) Limited, Customer Information Department, Prestwick International Airport, Ayrshire, KA9 2RW, Scotland, United Kingdom; telephone +44 1292 675207; fax +44 1292 675704; email [email protected]; internet http://www.baesystems.com/Businesses/RegionalAircraft/index.htm. You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.

    Issued in Des Moines, Washington, on June 19, 2018. Michael Kaszycki, Acting Director, System Oversight Division, Aircraft Certification Service.
    [FR Doc. 2018-13782 Filed 6-27-18; 8:45 am] BILLING CODE 4910-13-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R10-OAR-2018-0060; FRL-9979-99—Region 10] Air Plan Approval; Washington; Interstate Transport Requirements for the 2012 PM2.5 NAAQS AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Clean Air Act (CAA) requires each State Implementation Plan (SIP) to contain adequate provisions prohibiting emissions that will have certain adverse air quality effects in other states. On February 7, 2018, the State of Washington made a submission to the Environmental Protection Agency (EPA) to address these requirements. The EPA is proposing to approve the submission as meeting the requirement that each SIP contain adequate provisions to prohibit emissions that will contribute significantly to nonattainment or interfere with maintenance of the 2012 annual fine particulate matter (PM2.5) national ambient air quality standard (NAAQS) in any other state.

    DATES:

    Comments must be received on or before July 30, 2018.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R10-OAR-2018-0060 at https://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 the disclosure of which 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). 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.

    FOR FURTHER INFORMATION CONTACT:

    Jeff Hunt, Air Planning Unit, Office of Air and Waste (OAW-150), Environmental Protection Agency, Region 10, 1200 Sixth Ave., Suite 155, Seattle, WA 98101; telephone number: (206) 553-0256; email address: [email protected]

    SUPPLEMENTARY INFORMATION:

    Throughout this document whenever “we,” “us,” or “our” is used, we mean the EPA. This supplementary information section is arranged as follows:

    Table of Contents I. What is the background of this SIP submission? II. What guidance or information is the EPA using to evaluate this SIP submission? III. The EPA's Review IV. What action is the EPA taking? V. Statutory and Executive Order Reviews I. What is the background of this SIP submission?

    This rulemaking addresses a submission from the Washington Department of Ecology (Ecology) assessing interstate transport requirements for the 2012 annual PM2.5 NAAQS. The requirement for states to make a SIP submission of this type arises from section 110(a)(1) of the CAA. Pursuant to section 110(a)(1), states must submit within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof), a plan that provides for the implementation, maintenance, and enforcement of such NAAQS. The statute directly imposes on states the duty to make these SIP submissions, and the requirement to make the submissions is not conditioned upon the EPA taking any action other than promulgating a new or revised NAAQS. Section 110(a)(2) includes a list of specific elements that “[e]ach such plan” submission must address. The EPA commonly refers to such state plans as “infrastructure SIPs.” Specifically, this rulemaking addresses the requirements under CAA section 110(a)(2)(D)(i)(I), otherwise known as the “good neighbor” provision, which requires SIPs to contain adequate provisions to prohibit emissions that will contribute significantly to nonattainment or interfere with maintenance of the NAAQS in any other state.

    II. What guidance or information is the EPA using to evaluate this SIP submission?

    The most recent relevant document was a memorandum published on March 17, 2016, titled “Information on the Interstate Transport “Good Neighbor” Provision for the 2012 Fine Particulate Matter National Ambient Air Quality Standards under Clean Air Act Section 110(a)(2)(D)(i)(I)” (memorandum). The memorandum describes the EPA's past approach to addressing interstate transport, and provides the EPA's general review of relevant modeling data and air quality projections as they relate to the 2012 annual PM2.5 NAAQS. The memorandum provides information relevant to the EPA Regional office review of the CAA section 110(a)(2)(D)(i)(I) “good neighbor” provision in infrastructure SIPs with respect to the 2012 annual PM2.5 NAAQS. This rulemaking considers information provided in that memorandum.

    The memorandum also provides states and the EPA Regional offices with future year annual PM2.5 design values for monitors in the United States based on quality assured and certified ambient monitoring data and air quality modeling. The memorandum describes how these projected potential design values can be used to help determine which monitors should be further evaluated to potentially address whether emissions from other states significantly contribute to nonattainment or interfere with maintenance of the 2012 annual PM2.5 NAAQS at those sites. The memorandum explains that the pertinent year for evaluating air quality for purposes of addressing interstate transport for the 2012 PM2.5 NAAQS is 2021, the attainment deadline for 2012 PM2.5 NAAQS nonattainment areas classified as Moderate.

    Based on this approach, the potential receptors are outlined in the memorandum. Most of the potential receptors are in California, located in the San Joaquin Valley or South Coast nonattainment areas. However, there is also one potential receptor in Shoshone County, Idaho, and one potential receptor in Allegheny County, Pennsylvania. The memorandum also indicates that for certain states with incomplete ambient monitoring data, additional information including the latest available data should be analyzed to determine whether there are potential downwind air quality problems that may be impacted by transported emissions.

    This rulemaking considers analysis in Washington's submission, as well as additional analysis conducted by the EPA during review of its submission. For more information on how we conducted our analysis, please see the technical support document (TSD) included in the docket for this action.

    III. The EPA's Review

    This rulemaking proposes action on Washington's February 7, 2018, SIP submission addressing the good neighbor provision requirements of CAA section 110(a)(2)(D)(i)(I). State plans must address specific requirements of the good neighbor provisions (commonly referred to as “prongs”), including:

    —Prohibiting any source or other type of emissions activity in one state from contributing significantly to nonattainment of the NAAQS in another state (prong one); and —Prohibiting any source or other type of emissions activity in one state from interfering with maintenance of the NAAQS in another state (prong two).

    The EPA has developed a consistent framework for addressing the prong one and two interstate transport requirements with respect to the PM2.5 NAAQS in several previous federal rulemakings. The four basic steps of that framework include: (1) Identifying downwind receptors that are expected to have problems attaining or maintaining the relevant NAAQS; (2) identifying which upwind states contribute to these identified problems in amounts sufficient to warrant further review and analysis; (3) for states identified as contributing to downwind air quality problems, identifying upwind emissions reductions necessary to prevent an upwind state from significantly contributing to nonattainment or interfering with maintenance of the relevant NAAQS downwind; and (4) for states that are found to have emissions that significantly contribute to nonattainment or interfere with maintenance of the relevant NAAQS downwind, reducing the identified upwind emissions through adoption of permanent and enforceable measures. This framework was applied with respect to PM2.5 in the Cross-State Air Pollution Rule (CSAPR), designed to address both the 1997 and 2006 PM2.5 standards, as well as the 1997 ozone standard.1

    1 Washington was not part of the CSAPR rulemaking. The EPA approved the Washington SIP as meeting the CAA section 110(a)(2)(D)(i)(I) requirements for the 1997 ozone and 1997 PM2.5 NAAQS on January 13, 2009 (74 FR 1591) and the 2006 PM2.5 NAAQS on July 30, 2015 (80 FR 45429).

    In its submission, Ecology generally mirrored the framework established by the EPA. Specifically: (1) Ecology reviewed past and current air quality nationwide to identify potential downwind receptors that may have problems attaining or maintaining the 2012 PM2.5 NAAQS; (2) Ecology identified those western receptors from the broader nationwide list that may be impacted by Washington for further review and analysis; (3) Ecology then reviewed air quality reports, modeling results, designation letters, designation technical support documents, and available attainment plans to determine if emissions from Washington may impact these specific areas; (4) Lastly, Ecology conducted its own independent Hybrid Single Particle Lagrangian Integrated Trajectory (HYSPLIT) back trajectory modeling for Shoshone County, Idaho to support the state's conclusion that sources in Washington are not significantly contributing to this receptor, or interfering with maintenance of this receptor. From this analysis, Ecology concluded that Washington does not significantly contribute to nonattainment or interfere with maintenance of the 2012 PM2.5 NAAQS in any other state.

    As discussed in the TSD for this action, we came to the same conclusion as the state. In our evaluation, potential downwind nonattainment and maintenance receptors were identified in other states. The EPA evaluated these potential receptors to determine first if, based on review of relevant data and other information, there would be downwind nonattainment or maintenance problems, and if so, whether Washington contributes to such problems in these areas. After reviewing air quality reports, modeling results, designation letters, designation technical support documents, attainment plans and other information for these areas, we find there is no contribution sufficient to warrant additional SIP measures. Therefore, we are proposing to approve the Washington SIP as meeting CAA section 110(a)(2)(i)(I) interstate transport requirements for the 2012 PM2.5 NAAQS.

    IV. What action is the EPA taking?

    The EPA is proposing to approve Ecology's February 7, 2018, submission certifying that the Washington SIP is sufficient to meet the interstate transport requirements of CAA section 110(a)(2)(D)(i)(I), specifically prongs one and two, as set forth above. The EPA is requesting comments on the proposed approval.

    V. Statutory and Executive Order Reviews

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

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

    • Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866;

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

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

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

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

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

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

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

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

    In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Particulate matter, Reporting and recordkeeping requirements.

    Dated: June 14, 2018. Chris Hladick, Regional Administrator, Region 10.
    [FR Doc. 2018-13861 Filed 6-27-18; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS-R4-ES-2018-0035; FXES11130900000C2-189-FF09E42000] RIN 1018-BB98 Endangered and Threatened Wildlife and Plants; Proposed Replacement of the Regulations for the Nonessential Experimental Population of Red Wolves in Northeastern North Carolina AGENCY:

    Fish and Wildlife Service, Interior.

    ACTION:

    Proposed rule; availability of a draft environmental assessment, opening of comment period, and announcement of public hearing.

    SUMMARY:

    We, the U.S. Fish and Wildlife Service (Service), propose to replace the existing regulations governing the nonessential experimental population designation of the red wolf (Canis rufus) under section 10(j) of the Endangered Species Act, as amended. We request public comments, and announce a public information session and public hearing, on this proposed rule. In addition, we announce the availability of a draft environmental assessment on the proposed replacement of the existing nonessential experimental population regulations for the red wolf. In conjunction with this proposed action, we are initiating consultation pursuant to section 7 of the Endangered Species Act and completing a compatibility determination pursuant to the National Wildlife Refuge System Improvement Act of 1997.

    We propose this action to ensure our regulations are based on the most recent science and lessons learned related to the management of red wolves. If adopted as proposed, this action would further conservation of red wolf recovery overall by allowing for the reallocation of resources to enhance support for the captive population, retention of a propagation population for future new reintroduction efforts that is influenced by natural selection, and provision of a population for continued scientific research on wild red wolf behavior and population management. This action would also promote the viability of the nonessential experimental population by authorizing proven management techniques, such as the release of animals from the captive population into the nonessential experimental population, which is vital to maintaining a genetically healthy population.

    DATES:

    Written comments: We will consider comments we receive on or before July 30, 2018. Comments submitted electronically using the Federal eRulemaking Portal (see ADDRESSES, below) must be received by 11:59 p.m. Eastern Time on the closing date.

    Requests for additional public hearings: We must receive requests for additional public hearings, in writing, at the address shown in FOR FURTHER INFORMATION CONTACT by July 12, 2018.

    Public information session and public hearing: On July 10, 2018, we will hold a public information session and public hearing on this proposed rule and draft environmental assessment. The public information session is scheduled from 5:30 p.m. to 6:30 p.m., and the public hearing from 7 p.m. to 9 p.m.

    ADDRESSES:

    Availability of documents: This proposed rule is available on http://www.regulations.gov at Docket No. FWS-R4-ES-2018-0035 and on our website at http://www.fws.gov/Raleigh. Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, are also available for public inspection at http://www.regulations.gov. All comments, materials, and documentation that we considered in this document are available for public inspection, by appointment, during normal business hours, at the Raleigh Ecological Services Field Office, U.S. Fish and Wildlife Service, 551F Pylon Drive, Raleigh, NC 27606; telephone 919-856-4520; or facsimile 919-856-4556. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Relay Service at 1-800-877-8339.

    Comment submission: You may submit written comments on this proposed rule and draft environmental assessment by one of the following methods:

    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-R4-ES-2018-0035, which is the docket number for this rulemaking. Then, click on the Search button. On the resulting page, in the Search panel on the left side of the screen, under the Document Type heading, check the Proposed Rules box to locate this document. You may submit a comment by clicking on “Comment Now!”

    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public Comments Processing, Attn: FWS-R4-ES-2018-0035, U.S. Fish and Wildlife Service, MS: BPHC, 5275 Leesburg Pike, Falls Church, VA 22041-3803.

    We request that you send comments only by the methods described above. We will post all comments on http://www.regulations.gov. This generally means that we will post any personal information you provide us (see Public Comments, below, for more information).

    Public information session and public hearing: The public information session and public hearing will occur at Roanoke Festival Park, One Festival Park, Manteo, NC 27954.

    FOR FURTHER INFORMATION CONTACT:

    Pete Benjamin, Field Supervisor, U.S. Fish and Wildlife Service, Raleigh Ecological Services Field Office, 551F Pylon Drive, Raleigh, NC 27606; telephone 919-856-4520; or facsimile 919-856-4556. Persons who use a TDD may call the Federal Relay Service at 1-800-877-8339.

    SUPPLEMENTARY INFORMATION:

    Executive Summary This Proposal

    We are proposing to replace the regulations governing the northeast North Carolina nonessential experimental population (NC NEP) of the red wolf, codified in 1995 in title 50 of the Code of Federal Regulations (CFR) at § 17.84(c) (50 CFR 17.84(c)). The purpose of the proposed action is to incorporate the most recent science and lessons learned related to the management of red wolves to implement revised regulations that will better further the conservation of the red wolf. We propose to establish a more manageable wild propagation population that will allow for more resources to support the captive population component of the red wolf program (which is the genetic fail safe for the species); serve the future needs of new reintroduction efforts; retain the influences of natural selection on the species; eliminate the regulatory burden on private landowners; and provide a population for continued scientific research on wild red wolf behavior and population management.

    Why We Need To Publish a Rule

    Significant changes to the red wolf population and red wolf management in the NC NEP have occurred since 1995; since then, management of red wolf and coyote interactions has become a primary management consideration. The current regulations associated with the NC NEP are no longer effective in addressing the current and future management needs of the red wolf and preclude the development of sound management strategies for this species.

    Replacing the existing regulations is necessary to respond to the changing landscape and better ensure the conservation and recovery of the red wolf. Success of the red wolf recovery program under the existing regulations has been limited, and the current regulations lack the necessary flexibility to respond to the red wolf's conservation needs. Most specifically, it is apparent that the current regulations are not effective in terms of fostering coexistence between people and red wolves, and that changes are needed to reduce conflict associated with red wolf conservation.

    The Basis for the Action

    The 1982 amendments to the Endangered Species Act of 1973, as amended (Act), included the addition of section 10(j), which allows for the designation of reintroduced populations of listed species as “experimental populations.” Under section 10(j) of the Act and our regulations in 50 CFR part 17, subpart H (Experimental Populations), the Service may designate an experimental population of endangered or threatened species that has been or will be released into suitable natural habitat outside the species' current natural range (but within its probable historical range, absent a finding by the Director of the Service in the extreme case that the primary habitat of the species has been unsuitably and irreversibly altered or destroyed). With the experimental population designation, the relevant population is treated as threatened regardless of the species' designation elsewhere in its range. Section 4(d) of the Act allows us to adopt any regulations that we deem necessary and advisable to provide for the conservation of a threatened species. Treating the experimental population as threatened allows us the discretion of devising special regulations and management to ensure the population supports conservation and recovery of the species.

    We have prepared a draft environmental assessment (DEA) pursuant to the National Environmental Policy Act (NEPA). On May 23, 2017, we published an advance notice of proposed rulemaking and notice of intent to prepare a NEPA document (82 FR 23518). This initiated a public scoping process that included a request for written comments and two public scoping meetings in June 2017. We have incorporated information collected since that scoping process began in the development of a DEA and this proposed rule. We will use information from this analysis to inform our final decision.

    Public Comment Procedures

    We intend that any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate and as effective as possible. Therefore, we request comments or information from State agencies, other concerned governmental agencies, Native American tribes, the scientific community, industry, or any other interested parties concerning this proposed rule.

    We particularly seek comments regarding:

    (a) Contribution of the NC NEP to recovery goals for the red wolf;

    (b) The relative effects that management of the NC NEP under the proposed rule would have on the conservation of the species;

    (c) The extent to which the NC NEP may be affected by existing or anticipated Federal or State actions or private activities within or adjacent to the proposed NC NEP management area;

    (d) Appropriate provisions for protections and “take” of red wolves;

    (e) Ideas and strategies for promoting tolerance of red wolves on private property outside the NC NEP management area; and

    (f) Appropriate means to evaluate the effectiveness of the proposed action, including relevant performance measures.

    Additionally, we seek comments on the identification of direct, indirect, beneficial, and adverse effects that may result from this proposed 10(j) rule for red wolves. You may wish to consider the extent to which the proposed rule will affect the following when providing comments:

    (a) Impacts on floodplains, wetlands, wild and scenic rivers, or ecologically sensitive areas;

    (b) Impacts on Federal, State, local or Tribal park lands; refuges and natural areas; and cultural or historic resources;

    (c) Impacts on human health and safety;

    (d) Impacts on air, soil, and water;

    (e) Impacts on prime agricultural lands;

    (f) Impacts to other species of wildlife, including other endangered or threatened species;

    (g) Disproportionately high and adverse impacts on minority and low income populations;

    (h) Any socioeconomic or other potential effects; and

    (i) Any potential conflicts with other Federal, State, local, or Tribal environmental laws or requirements.

    Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include.

    Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on http://www.regulations.gov, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Raleigh Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

    Public Information Session and Public Hearing

    On July 10, 2018, we will hold a public information session and public hearing on this proposed rule and draft environmental assessment. The times and location of the public information session and public hearing are provided under DATES and ADDRESSES, above.

    We are holding the public hearing to provide interested parties an opportunity to present verbal testimony (formal, oral comments) or written comments regarding this proposed rule and the associated DEA. A formal public hearing is not, however, an opportunity for dialogue with the Service; it is only a forum for accepting formal verbal testimony.

    In contrast to the public hearing, the information session will allow the public the opportunity to interact with Service staff, who will be available to provide information and address questions on this proposed rule and the DEA. We cannot accept verbal testimony at the information session; verbal testimony can only be accepted at the public hearing.

    Anyone wishing to make an oral statement at the public hearing for the record is encouraged to provide a written copy of their statement to us at the hearing. In the event there is a large attendance, the time allotted for oral statements may be limited. Speakers can sign up at the hearing if they desire to make an oral statement. Oral and written statements receive equal consideration. There are no limits on the length of written comments submitted to us.

    Persons needing reasonable accommodations to participate in the information session or public hearing should contact the person listed above under FOR FURTHER INFORMATION CONTACT. Reasonable accommodation requests should be received no later than July 5, 2018, to help ensure availability; American Sign Language or English as a second language interpreter needs should be received no later than June 29, 2018.

    Background Biological Information

    A species status assessment (SSA) report was prepared for the red wolf (USFWS 2018). The SSA report represents a compilation of the best scientific and commercial data available concerning the status of the species, including the impacts of past, present, and future factors (both negative and beneficial) affecting the red wolf. The SSA report underwent independent peer review by scientists with expertise in wolf biology, habitat management, and stressors (factors negatively affecting the species) to the species. The SSA report can be found on the Southeast Region website at https://www.fws.gov/southeast/ and at http://www.regulations.gov under Docket No. FWS-R4-ES-2018-0035.

    Why We Need To Replace the Regulations

    On April 13, 1995, we published a final rule (60 FR 18940) amending the regulations at 50 CFR 17.84(c) for the nonessential experimental populations of red wolves in North Carolina and Tennessee. We refer to that final rule as the “1995 final rule.”

    Under the provisions of the 1995 final rule, the NC NEP is declining more rapidly than the worst-case scenarios described in the most recent population viability analysis (Faust et al. 2016). As described in the Red Wolf Recovery Team Report (2016), there is consensus that the current direction and management of the NC NEP is unacceptable to the Service and stakeholders. Based on the SSA review, there are significant threats to the NC NEP and conditions for recovery of the species are not favorable, indicating a self-sustainable population may not be possible. Significant changes to management actions in the NC NEP recovery area have occurred since the 1995 final rule, which was promulgated before management of red wolf and coyote interactions became a primary management consideration. The current rule associated with the NC NEP is no longer effective in addressing the current and future management needs of the red wolf recovery program, and the regulations need to be revised to allow for the development of sound management strategies for this species.

    The current regulations at 50 CFR 17.84(c) lack the needed flexibility to adapt to the arrival and proliferation of coyotes in eastern North Carolina. For example, the current regulations do not explicitly incorporate Red Wolf Adaptive Management Work Plan (RWAMWP) activities (discussed further below). Since issuance of the 1995 final rule, the coyote population has continued to expand in eastern North Carolina, thus significantly increasing the risk of hybridization between red wolves and coyotes. The risk of hybridization is exacerbated by the fact that there is a high degree of anthropogenic mortality (e.g., gunshot, poisoning) in the NC NEP that presents additional challenges. Human-caused mortality, particularly during red wolf breeding season, significantly increases breeding pair disbandment, facilitating hybridization with coyotes. Furthermore, red wolf habitat in the NC NEP recovery area is discontinuous, further increasing the risk for hybridization. Additionally, sea level rise will be additive year after year and will impact the long-term viability of the current NC NEP. Based on these conditions, the Service must adapt its management to better conserve the red wolf.

    The red wolf remains a conservation reliant species (i.e., cannot be recovered without intense human management). Due to the spread of coyotes across the entire historical range of the red wolf, there are no coyote-free habitats where a reintroduction program could be successful without active coyote management. Furthermore, while the red wolf's genetic viability can be managed through the captive population, there is little chance of a naturally occurring wild population existing without active management for the foreseeable future, although the intensity of active management can vary with potential management scenarios and time. The RWAMWP proved successful in limiting coyote introgression and maintaining red wolf territories, but it was not designed to address other factors affecting the conservation of the species, such as anthropogenic mortality (Hinton et al. 2017). We anticipate the RWAMWP strategy will remain necessary for the NC NEP and any future NEPs.

    We also believe it is apparent that the current regulations are not effective in terms of fostering coexistence between people and red wolves, and that changes are needed to reduce conflict associated with red wolf conservation and allow for effective management of coyotes. As discussed by Henry and Lucash (2000), without private landowner support, we will not be able to recover the red wolf. Due to the importance of private landowners' support to red wolf conservation (over 90 percent of lands in the Southeast are privately owned), socio-political factors are as important, if not more important, than ecological factors. Fundamental change is needed in the way stakeholders are engaged in management of wild red wolf populations. State agencies, non-governmental organizations (NGO) and the Service will need to engage with the public and develop strategies for managing coyotes.

    Recovery of the red wolf has conflicted with private landowners' ability to manage coyote populations. This has led to excessive losses of red wolves to anthropogenic mortality and disruption of established packs of red wolves and breeding pairs, allowing for the further expansion of coyote populations and increasing risk of red wolf/coyote hybridization. Coyote management was not a factor in 1986, when the NC NEP was first established, because coyotes were not present in the five-county NC NEP recovery area (Beaufort, Dare, Hyde, Tyrrell and Washington). Coyotes began to appear in the recovery area in the early 1990s, and they were well established in the area by 2000. This led to increased interest on the part of landowners to control coyotes and pursue them for recreational hunting and trapping. This brought regulation of coyotes by the North Carolina Wildlife Resources Commission (NCWRC) into increasing conflict with Service efforts to manage red wolves.

    The Service and the NCWRC entered into an agreement in 2013, in order to improve coordination and collaboration regarding canid management and conservation on the Albemarle Peninsula. This agreement focused on improving collaboration between the agencies in areas of canid management, research, outreach, regulation, and enforcement. In 2013, a number of groups filed suit challenging the NCWRC's decision to authorize night hunting of coyotes in the red wolf recovery area, claiming that it would lead to unauthorized take of red wolves. The lawsuit was subsequently amended to include all coyote hunting in the red wolf recovery area. On May 14, 2014, the Court issued a preliminary injunction that prohibited all hunting of coyote (day or night) in the five-county NC NEP recovery area. Under the terms of a subsequent settlement agreement among the plaintiffs and the NCWRC, the NCWRC was able to reinstitute coyote hunting in the recovery area; however, hunting is allowed by permit only, all harvest must be reported to the NCWRC, and night hunting is prohibited. In January 2015, the NCWRC approved a set of resolutions requesting that the Service declare the red wolf extinct in the wild, terminate red wolf recovery efforts in North Carolina, and remove all red wolves from the wild.

    Current regulations are not effective in terms of fostering coexistence between people and red wolves, and changes are needed to reduce conflict associated with red wolf conservation. Additionally, the current regulations limit the number of red wolves that can be released on the landscape. The release of up to 12 wolves was explicitly authorized in the 1986 regulations (51 FR 41790; November 19, 1986). No additional releases were authorized during subsequent rule revisions in 1991 (56 FR 56325; November 4, 1991) and 1995 (60 FR 18940; April 13, 1995). Movement of wolves between the captive and wild populations is needed to maintain the genetic integrity of the NC NEP and the overall red wolf population.

    In summary, the existing regulations lack the flexibility necessary to ensure the conservation and recovery of the red wolf. The Service is proposing replacement regulations that will allow active coyote management and better ensure active participation by landowners and the State and local officials in canid management, thereby increasing the probability of persistence of the wild population of red wolves. These wild red wolves would be the main source of animals for future establishment of new experimental populations elsewhere within the historical range of the species.

    Proposed Replacement Regulations for the NC NEP

    Our intent with this proposed rule is to establish a fundamentally different paradigm for red wolf conservation. The rule itself would ensure protection and effective management of red wolves within the Federal lands of the Alligator River National Wildlife Refuge (NWR) and the Dare County Bombing Range (NC NEP management area).

    This rule proposes to establish a NC NEP management area to include the Alligator River NWR and the Dare County Bombing Range (NC NEP management area). A small group (i.e., one or two packs likely consisting of fewer than 15 animals) of red wolves would be maintained in the NC NEP management area. The wolves in this NC NEP management area would be actively managed under the RWAMWP.

    The primary role of this population relative to the conservation of the species would be to provide a source of red wolves that are raised in, and adapted to, natural conditions for the purpose of facilitating future reintroductions.

    It is anticipated that some red wolves would leave the NC NEP management area on a fairly regular basis. Although these red wolves would be considered part of the NC NEP, the proposed regulations would contain no take prohibitions of these animals on private lands and non-Federal public lands. As such, the Service has determined that no take prohibitions will apply outside the NC NEP management area. The proposed rule would require only that the Service be notified within 24 hours regarding the take of any collared animals and that the collars be returned to the Service.

    A species status assessment (SSA) report was prepared for the red wolf (USFWS 2018) that contains additional information regarding the biology and status of the species. The SSA report can be found on the Southeast Region website at https://www.fws.gov/southeast/ and at http://www.regulations.gov under Docket No. FWS-R4-ES-2018-0035.

    Focusing management on Federal lands while removing the cumbersome procedural provisions for take of red wolves should reduce overall program costs and facilitate the State and other partners to take a more active leadership role in canid management and conservation on non-Federal lands. Limiting the designated NC NEP management area to Federal lands should also reduce conflicts between the State, the Service and any other stakeholders regarding authorized management of coyotes on private lands.

    Despite the challenges and limitations facing the NC NEP, managing a smaller wild population is important to fostering the species in the wild. This management approach will allow more resources to support the captive population and ability to establish other wild populations. It will also help retain some of the influences of natural selection, serve as a small propagation population for future new reintroduction efforts, and could provide a population for continued scientific research on wild behavior. Research would be authorized and encouraged and could be targeted at filling key knowledge gaps to inform future reintroduction efforts at other sites, specifically focused on better understanding the behavioral and ecological factors that reproductively separate red wolves and coyotes with a view toward developing more efficient and sustainable management techniques. This research would focus on predator-prey dynamics, maintenance of genetic integrity, and management of hybridization. Public education and outreach activities would continue.

    Statutory and Regulatory Framework

    The 1982 amendments to the Act (16 U.S.C. 1531 et seq.) included the addition of section 10(j), which allows for the designation of reintroduced populations of listed species as “experimental populations.” Before section 10(j) created the “experimental” designation, “[l]ocal opposition to reintroduction efforts, . . . stemming from concerns about the restrictions and prohibitions on private and Federal activities contained in sections 7 and 9 of the Act, severely handicapped the effectiveness of [reintroductions] as a management tool” (51 FR 41790; November 19, 1986). The provisions of section 10(j) were enacted to ameliorate concerns that reintroduced populations will negatively impact landowners and other private parties by giving the Secretary of the Interior greater regulatory flexibility and discretion in managing the reintroduction of listed species to encourage recovery in collaboration with partners, especially private landowners. Congress specifically contemplated that the release of experimental populations of predators, such as red wolves, could allow for the directed taking of these animals if the release were frustrated by public opposition. Also, Congress noted that permits for takings of experimental populations would not be necessary if such populations were treated as threatened, thus indicating take would not be prohibited. See H.R. Rep 97-567 (1982).

    Under section 10(j) of the Act and our regulations at 50 CFR 17.81, the Service may designate an endangered or threatened species that has been or will be released into suitable natural habitat outside the species' current natural range (but within its probable historical range, absent a finding by the Director of the Service in the extreme case that the primary habitat of the species has been unsuitably and irreversibly altered or destroyed) as an experimental population.

    Before authorizing the release as an experimental population of any population (including eggs, propagules, or individuals) of an endangered or threatened species, and before authorizing any necessary transportation to conduct the release, the Service must find, by regulation, that such release will further the conservation of the species. Conservation is defined by the Act as the use of all methods and procedures which are necessary to bring any endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. In short, experimental populations must further a species' recovery. In making such a finding, the Service uses the best scientific and commercial data available to consider: (1) Any possible adverse effects on extant populations of a species as a result of removal of individuals, eggs, or propagules for introduction elsewhere; (2) the likelihood that any such experimental population will become established and survive in the foreseeable future; (3) the relative effects that establishment of an experimental population will have on the recovery of the species; and (4) the extent to which the introduced population may be affected by existing or anticipated Federal or State actions or private activities within or adjacent to the experimental population area.

    Furthermore, as set forth at 50 CFR 17.81(c), all regulations designating experimental populations under section 10(j) must provide: (1) Appropriate means to identify the experimental population, including, but not limited to, its actual or proposed location, actual or anticipated migration, number of specimens released or to be released, and other criteria appropriate to identify the experimental population(s); (2) a finding, based solely on the best scientific and commercial data available, and the supporting factual basis, on whether the experimental population is, or is not, essential to the continued existence of the species in the wild; (3) management restrictions, protective measures, or other special management concerns of that population, which may include but are not limited to, measures to isolate and/or contain the experimental population designated in the regulation from natural populations; and (4) a process for periodic review and evaluation of the success or failure of the release and the effect of the release on the conservation and recovery of the species.

    Under 50 CFR 17.81(d), the Service must consult with appropriate State game and fish agencies, local governmental entities, affected Federal agencies, and affected private landowners in developing and implementing experimental population rules. To the maximum extent practicable, section 10(j) rules represent an agreement between the Service, the affected State and Federal agencies, and persons holding any interest in land that may be affected by the establishment of an experimental population. Based on the best available information, we must determine whether the experimental population is essential or nonessential to the continued existence of the species. The regulations (50 CFR 17.80(b)) state that an experimental population is considered essential if its loss would be likely to appreciably reduce the likelihood of survival of that species in the wild.

    Under this NEP designation, all members of the population are treated as if they were listed as a threatened species for the purposes of establishing protective regulations, regardless of the species' designation elsewhere in its range. This approach allows us to develop tailored conservation measures that we deem necessary and advisable to provide for the conservation of the species. In these situations, the general regulations at 50 CFR 17.31 do not apply. The protective regulations adopted for an experimental population in a section 10(j) rule contain the applicable prohibitions and exceptions for that specific population. We find it necessary and advisable to apply section 9 prohibitions for endangered species and section 10 exceptions within the NC NEP management area.

    Section 7(a)(2) of the Act requires that Federal agencies, in consultation with the Service, ensure that any action they authorize, fund, or carry out is not likely to jeopardize the continued existence of an endangered or threatened species or adversely modify its critical habitat. For the purposes of section 7(a)(2), we treat an NEP as a threatened species only when the NEP is located within a National Wildlife Refuge or unit of the National Park Service. Under the proposed rule, this means intra-agency consultation would be required for activities on the Alligator River NWR.

    When members of an NEP are located outside a National Wildlife Refuge or National Park Service unit (in this case, on Dare County Bombing Range), then, for the purposes of section 7, they are treated as species proposed for listing, not as threatened species. This means section 7(a)(2) of the Act does not apply. Instead, section 7(a)(4) applies. This provides the Service with additional flexibility because under section 7(a)(4), Federal agencies are only required to confer (rather than consult) with the Service on actions that are likely to jeopardize the continued existence of a species proposed to be listed. Section 7(a)(4) conference recommendations are non-binding and optional to the agencies carrying out, funding, or authorizing the action at issue. Therefore, section 7(a)(2) consultation would not be required for actions that occur outside of Alligator River NWR (i.e., on Dare County Bombing Range).

    Previous Federal Actions

    The red wolf was originally listed as a species threatened with extinction under the Endangered Species Preservation Act of 1966 (32 FR 4001; March 11, 1967). This species is currently listed as an endangered species under the Act. The demise of the red wolf was directly related to human activities, such as predator control efforts at the private, State, and Federal levels and conversion of prime habitat to other purposes.

    Historically, the red wolf range included Texas and Louisiana to the Ohio River Valley and up the Atlantic Coast into northern Pennsylvania or southern New York, and perhaps farther north (Wildlife Management Institute (WMI) 2014; for reference, see http://www.regulations.gov, Docket No. FWS-R4-ES-2017-0006). However, by the mid-1970s, the only remaining population occurred in southeastern Texas and southwestern Louisiana (WMI 2014). In 1975, it became apparent that the only way to save the red wolf from extinction was to capture as many wild animals as possible and place them in a secured captive-breeding program. This decision was based on the critically low numbers of animals left in the wild, poor physical condition of those animals due to disease and internal and external parasites, the threat posed by an expanding coyote (Canis latrans) population, and consequent hybridization.

    The Service removed the remaining red wolves from the wild and used them to establish a breeding program with the objective of restoring the species to a portion of its former range. Ultimately, 14 animals formed the basis of the Red Wolf Captive Breeding Program with the Point Defiance Zoo and Aquarium in Tacoma, Washington. By 1986, the captive-breeding program held 80 red wolves in seven facilities and public and private zoos across the United States. With the red wolf having been extirpated from its entire historical range, the Service took action to reestablish a wild population.

    In 1986, the Service published a final rule in the Federal Register (51 FR 41790; November 19, 1986) to reintroduce red wolves into Alligator River NWR, Dare County, North Carolina. Alligator River NWR was chosen due to the absence of coyotes, lack of major livestock operations, and availability of prey species. The red wolf population in Dare County (Alligator River NWR) and adjacent Tyrrell, Hyde, and Washington Counties was determined to be a nonessential experimental population (NEP) under section 10(j) of the Act (a “10(j) rule”).

    In 1991, the Service published a final rule (56 FR 56325; November 4, 1991) that added Beaufort County to the counties where the 1986 NEP designation would apply and provided for introduction of a second NEP of red wolves in the Great Smoky Mountains National Park (Park), Haywood and Swayne Counties, North Carolina, and Blount, Cocke, and Sevier Counties in Tennessee. The second NEP's efforts were discontinued in 1998 (63 FR 54151, October 8, 1998; USFWS 2007) due to lack of resources in the area, poor pup survival, and the dispersal patterns of red wolves released onsite. The surviving animals from the Park were placed in captivity or transferred to the NC NEP.

    From 1987 through 1992, recovery officials released 42 red wolves to establish the NC NEP. In 1993, the experimental population was expanded with reintroductions at Pocosin Lakes NWR in North Carolina. The 10(j) rule was modified again in 1995 (60 FR 18940; April 13, 1995) to revise and clarify the incidental take provision; revise the livestock owner take provision; add harassment and take provisions for red wolves on private property; revise and clarify the vaccination and recapture provision; and apply the same taking (including harassment) provisions to red wolves outside the experimental population area, except for reporting requirements. Today, the only population of red wolves in the wild is the NC NEP established in the five counties of the Albemarle peninsula (see map in supporting documents at http://www.regulations.gov, Docket No. FWS-R4-ES-2018-0035). All other individuals of this species are found in captive facilities around the country. The NC NEP has been closely monitored and managed since the first introductions in 1986.

    Management of red wolves in the NC NEP has changed over the years in response to our expanding knowledge of red wolf behavior and ecology and changing conditions within the NC NEP recovery area. The 1986 10(j) rule anticipated that red wolves would stay within the bounds of Alligator River NWR and the Dare County Bombing Range. Red wolves leaving this area were to be captured and returned to the NWR or placed in captivity. We quickly learned the shortcomings of this approach, as red wolves left the NWR within a few months of the initial releases. Some red wolves were captured and returned. In other cases, the Service entered into agreements with landowners to authorize the management of red wolves on private lands. In 1995, we amended the 10(j) rule to revise and clarify the incidental take provision, revise the livestock owner take provision, add harassment and take provisions for red wolves on private property, and apply the same taking (including harassment) provisions to red wolves outside the experimental population area (NC NEP recovery area) (60 FR 18940; April 13, 1995). In the early 1990s, expansion of coyotes into the NC NEP recovery area resulted in interbreeding and coyote gene introgression into the red wolf population. In 1999, to reduce interbreeding between red wolves and coyotes, the Service developed the RWAMWP, which utilized sterilized coyotes as territorial “placeholders.” Placeholders, which could not produce offspring should they mate, were expected to hold territory, thereby excluding other coyotes. Placeholders would eventually be replaced on the landscape either through competition with red wolves or through management actions. Throughout the history of the program, red wolves (and since 2000), placeholders have been monitored via telemetry, vaccinated against diseases prevalent in canids, and intensively studied in conjunction with a number of field research projects.

    As provided in the current regulations at 50 CFR 17.84(c), our staff has implemented management actions involving direct take of red wolves. This has included recapture of red wolves to: Replace telemetry collars; provide routine veterinary care; move red wolves from place to place to establish breeding pairs or to address management issues; and to remove animals from the wild population that were a threat to human safety or property, or that were severely injured or diseased. Also, as provided for in the current regulations, animals have been captured when private landowners requested their removal, and lethal take authorizations have been issued pursuant to 50 CFR 17.84(c)(4)(v).

    In 2013, the Service initiated a formal review of the NC NEP due to concerns regarding its effectiveness and high costs. The Service contracted with the Wildlife Management Institute (WMI) to conduct a review. The WMI review (WMI 2014) found multiple areas of concern related to NC NEP management and regional oversight; interpretation of the 10(j) rule; program costs and efficacy; the relationship of the NEP to other aspects of red wolf recovery; and landowner, community, and State support. Based on the findings of the WMI review (WMI 2014), the Service decided to suspend those management activities not explicitly authorized in the 1995 final rule and related compliance documents (e.g., section 7 consultation under the Act, NEPA), including release of additional red wolves from the captive population into the NC NEP recovery area and deployment of placeholder coyotes. Additionally, a Department of the Interior Office of the Inspector General (OIG) Report found that the Red Wolf Recovery Program released more wolves than it originally proposed and acted contrary to its rules by releasing wolves on to private lands (OIG 2016).

    Findings

    As discussed under Statutory and Regulatory Framework, several findings are required before establishing an experimental population. Below are our findings.

    Is the experimental population wholly separate geographically from non-experimental populations of the same species?

    Yes. The red wolf was considered extinct in the wild by 1980 (USFWS 1990). As such, red wolves of the NC NEP will be wholly separate from any non-experimental population and will have no effect on any extant wild population of red wolves.

    Most red wolves in existence today are held in captivity as part of the Red Wolf Species Survival Plan (SSP). Currently, there are approximately 221 red wolves at over 43 facilities across the country that support the captive population. Among others, two of the main goals of the Red Wolf SSP are to maintain 80 to 85 percent of the genetic diversity found in the original founder stock diversity for a period of 150 plus years, and to achieve a captive population size of 330 animals (USFWS 1990). There are currently 24 known (e.g., radio-collared) red wolves in the wild within the five-county NC NEP with an estimated total population in the wild of approximately 30 to 35 individuals.

    Is the experimental population area in suitable natural habitat outside the species' current range, but within its probable historical range?

    Yes. In North Carolina, reintroduced wolves have used many habitats, including agricultural lands, pine forests, and pocosins (e.g., a wetland found in coastal areas with sandy peat soil and shrubs throughout; Kelly et al. 2004, Trani and Chapman 2007). The WMI (2016) conducted a review of all available information related to the historical range of the red wolf. It concluded that previous range maps developed and used by the Service for the Red Wolf Recovery Program were too restrictive. An accurate predictor of the historical red wolf range includes all or parts of several Level II ecoregions including the Mississippi Alluvial and Southeast United States Coastal Plains, Ozark/Ouachita Appalachian Forests, South Central Semi-Arid Prairies, Southeastern United States Plains, and the Texas-Louisiana Coastal Plains. This area encompasses the southeastern United States, from southern Texas northeastward through eastern Oklahoma, southern and central Missouri into Illinois and southern Iowa; then east across southern Indiana and Ohio, and across Pennsylvania and New Jersey to the New York Bight; then south to the tip of the Florida Peninsula. Therefore, the NC NEP is within the probable historical range.

    The fact that red wolves have existed on the Albemarle Peninsula since 1986, and have successfully established packs and territories (especially within the Alligator River NWR), survived, and reproduced, indicates that the habitat is suitable. Despite anticipated future habitat changes related to sea level rise, we expect the habitat to remain suitable for the foreseeable future. Therefore, the NC NEP is within suitable habitat for the red wolf.

    Is the experimental population essential to the continued existence of the species?

    Before authorizing the release of any experimental population outside the current range of the species, the Act instructs us to determine whether an experimental population is essential to the continued existence of an endangered or threatened species. Our regulations define essential experimental populations as those “whose loss would be likely to appreciably reduce the likelihood of the survival of the species in the wild” (50 CFR 17.80(b)). The Service defines “survival” as the condition in which a species continues to exist in the future while retaining the potential for recovery (USFWS and National Marine Fisheries Service 1998). Inherent in our regulatory definition of essential is the impact the potential loss of the experimental population would have on the species as a whole (USFWS 1984). All experimental populations not meeting this bar are considered nonessential (50 CFR 17.80(b)).

    The Service previously determined that this experimental population of red wolves was nonessential in the 1986 final rule because even if the entire experimental population was lost, it would not appreciably reduce the prospects for future survival of the species because red wolves are still maintained in the captive-breeding program and we have proven capacity to successfully start a wild population from captive stock. As these circumstances have not changed, the NC NEP remains a nonessential population as it was established in 1986, and remained through subsequent amendments to the regulations. It is instructive that Congress did not put requirements in section 10(j) of the Act to reevaluate the determination of essentiality after a species has been reestablished in the wild. While our regulations require a “periodic review and evaluation of the success or failure of the release and the effect of the release on the conservation and recovery of the species” (50 CFR 17.81(c)(4)), this has not been interpreted as requiring reevaluation and reconsideration of a population's essentiality status (USFWS 1991; USFWS 1994; USFWS 1996). Recently a ruling in a case in the U.S. District Court for the District of Arizona (Center for Biological Diversity v. Jewell, 2018 WL 1586651 (D. Ariz. March 31, 2018)) found that the Service should have revisited the essentiality determination for the experimental population of the Mexican gray wolf (Canis lupus baileyi) when revising the 10(j) rules governing that population. An important difference between the revision of the Mexican gray wolf 10(j) rule revision and this proposed rule is that the revision of the Mexican gray wolf 10(j) rule expanded the area covered by the experimental population designation into areas not previously included; whereas this proposed rule for the red wolf does not. All of the considered alternatives either sustain, reduce, or terminate the existing NEP rather than expanding it into new areas outside the species' current range.

    Does the establishment of the experimental population and release into the NC NEP further the conservation of the species?

    Yes.

    (1) Are there any possible adverse effects on existing populations of the red wolf as a result of removal of individuals for introduction elsewhere?

    As stated above, the only other known red wolves in existence are held in captivity as part of the captive population. While one of the primary functions of the captive population is to provide animals for reintroduction to the wild, such reintroductions could adversely affect the captive population by reducing its size and genetic diversity. The Red Wolf Population Viability Analysis (Faust et al. 2016) indicates that the captive population at its current size can support the releases from the captive population into the NC NEP without adversely affecting the captive population, but this capacity is limited and releases above this level (such as those that may be needed to establish additional NEP sites) may adversely affect the captive population. The Service is currently working with our SSP partners and others to expand the captive population in order to better conserve genetic diversity and support additional reintroduction efforts.

    (2) What is the likelihood that any such experimental population will become established and survive in the foreseeable future?

    Between the initial designation of the nonessential experimental population in North Carolina in 1986 and 1995, the reintroduction experiment was successful and generated benefits that extended beyond the immediate conservation of red wolves (60 FR 18940; April 13, 1995). However, by approximately 2005, the red wolf population within the five-county NC NEP had leveled off and begun to decline. It was also during this time (the mid-1990s through early 2000s) that a change occurred that fundamentally altered the dynamics of the NC NEP and red wolf conservation generally: The arrival of coyotes on the Albemarle Peninsula and the impacts of that arrival on human tolerance of red wolves.

    By the early to mid-1990s, coyotes had become established on the Albemarle Peninsula and had begun to breed with red wolves (Kelly et al. 1999; Phillips et al. 2003). As noted above, the fact that red wolves and coyotes can and do interbreed when mature was a key factor that threatened the red wolf with extinction in southeastern Texas and southwestern Louisiana in the mid-1970s. One of the factors that led to the selection of the Alligator River NWR as the first reintroduction site in 1987 was that the range of the coyote had not yet expanded to include eastern North Carolina. The arrival of coyotes in the five-county NC NEP renewed the threat that the red wolf genome would be subsumed into the coyote genome through genetic introgression.

    In 1999, a workshop was convened that brought together over 40 red wolf experts (Kelly et al. 1999). At this workshop, information was presented indicating that genetic introgression with coyotes could result in the loss of a unique red wolf genome within a few generations. Recognizing the urgency of the threat posed by coyotes, the workshop participants developed the RWAMWP (Kelly et al. 1999).

    The RWAMWP divided the Albemarle Peninsula into management zones with different objectives for red wolf and coyote management within each. The zones were designed to prioritize management activities with the objective of maintaining a gradient from east to west across the Albemarle Peninsula; with the eastern end of the peninsula populated almost exclusively with red wolves (Zone 1), the western end populated with coyotes (Zone 3), and a zone in the middle (Zone 2) where coyote-red wolf interactions would be closely monitored and adaptively managed (USFWS 2013; for reference, see http://www.regulations.gov, Docket No. FWS-R4-ES-2018-0035).

    One of the challenges in implementing the RWAMWP was the need for reliable methods to quickly distinguish between red wolves, hybrids, and coyotes, as adult hybrids can vary greatly in appearance from nearly wolf-like to nearly coyote-like, and puppies are essentially indistinguishable. Miller et al. (2003) were able to develop a reliable test based on blood samples. The RWAMWP also depended on the development of an effective means of managing intraspecific matings. The Service's experience in Texas and Louisiana had demonstrated that efforts focused on eradicating coyotes from the area were ineffective. The RWAMWP pioneered the use of sterile placeholders to manage space and red wolf-coyote interactions (Seidler and Gese 2012; Gese and Terletzky 2015). Implementation of these management practices also required the continued cooperation of private landowners to gain access to the animals and dens off Federal lands (Kelly et al. 1999).

    By implementing the intense management described in the RWAMWP and constant releases from captivity (e.g., pup fostering), genetic introgression from the growing coyote population into the red wolf population was reduced (Bohling et al. 2016). The RWAMWP appeared in 2015 to be effectively limiting genetic introgression (less than 4 percent coyote ancestry from introgression since the reintroduction began) into the red wolf population, although hybridization is seen as an ongoing challenge (Gese et al. 2015; USFWS 2018). With this intense management strategy and continued strategic releases of red wolves from the SSP, the red wolf population continued to increase and by 2005, reached a peak population of approximately 130 and 150 animals and over 20 breeding pairs (USFWS 2007; Hinton et al. 2016).

    The RWAMWP effectively addressed the immediate threat to red wolves posed by the arrival of the coyote, namely genetic introgression (Bohling et al. 2016). It did not address the indirect threat posed by the arrival of the coyote (loss of red wolves associated with coyote control activities), and this threat would not begin to manifest itself until approximately 2005. As coyotes expanded their range and numbers throughout North Carolina and the eastern United States, citizens (including landowners and land managers on the Albemarle Peninsula) became increasingly concerned about the growing coyote population and interested in pursuing measures to control them (North Carolina Wildlife Resources Commission 2012).

    Since approximately 2005, red wolf numbers within the five-county NC NEP have declined significantly. At present, in the five-county NC NEP, the birth rate is not sufficient to overcome the losses to mortality. This situation is further aggravated by introgression, which effectively reduces births of pure red wolves. There are now insufficient unrelated red wolves to replace lost breeders, and, therefore, the population cannot recover from their losses and overcome mortality. This has resulted in a steadily declining population (USFWS 2018). Without substantial intervention, complete loss of the NC NEP will likely occur within as few as 8 years (Faust et al. 2016). The NC NEP could avoid extirpation and be viable (less than 10 percent chance of extirpation in 125 years) as a population with intervention (Faust et al. 2016; see also USFWS 2018).

    However, based on our experience over the past decade and the current status of the species, we conclude that our current regulations are not conducive to increases in red wolf reproduction and survival in the NC NEP, and, in fact, the likelihood of the NC NEP persisting under the current regulations is very low. Indeed, the red wolf PVA indicates that under current management, the NC NEP is projected to be extirpated in as few as 8 years (Faust et al. 2016). The current conditions in the NC NEP are not favorable for red wolf self-sustainability and survival (Hinton et al. 2017a). Hinton et al. (2017a) concluded that “[a]lthough the RWAMWP was successful in limiting coyote introgression (Gese and Terletzky 2015, Gese et al. 2015), it was not successful in providing conditions favorable for red wolf survival.” Despite the considerable financial, personnel, and logistical investment, basic conditions conducive to wolf population self-sufficiency simply have not been achieved. The main reasons for the presence of these unfavorable conditions include lack of authorization to release additional animals from the captive population. The current regulations do not authorize the release of animals from the captive population beyond the 12 specified in the original 1986 10(j) rule (51 FR 41790; November 19, 1986). An additional issue creating unfavorable conditions is anthropogenic mortality and subsequent population decline and hybridization with coyotes, the combination of which the RWAMWP was not designed to address (Hinton et al. 2017). The proposed regulations seek to address these issues by authorizing the release of up to five animals per year from the captive population into the NC NEP management area and the implementation of the RWAMWP. By providing a new framework for managing red wolves on the Alligator River National Wildlife Refuge and the Dare County Bombing Range, we anticipate having at least two packs of red wolves in the NC NEP management area.

    As noted above, the RWAMWP was implemented to establish a framework to limit hybridization between red wolves and coyotes, not to address factors affecting red wolf survival such as excessive anthropogenic mortality. Serenari et al. (2018) stated that red wolf recovery efforts will need to overcome political and logistical obstacles to human coexistence with red wolves. They analyzed data regarding human attitudes toward red wolf and coyote management in the context of Stone's (2002) policy goals framework (equity, liberty, security, and efficiency). This proposed rule offers the opportunity to foster coexistence by increasing freedom of private landowners regarding management of canids on their lands.

    The current five-county NC NEP is the only area in the State requiring a permit for coyote hunting and a prohibition on nighttime coyote hunting, due to the presence of red wolves and the increased risk of mistaken identity. This disparate treatment of landowners in the five-county NC NEP raises equity issues that foster resentment towards the presence of red wolves and has limited access to private lands for red wolf managers. This resentment is one of the most important factors hindering the conservation of the red wolf. Implementing this proposed rule is expected to minimize or even eliminate landowner resentment toward the red wolf, therefore furthering the conservation of the species.

    Implementing this proposed rule will also increase local residents' sense of security, as having private lands identified as part of a Federal endangered species recovery program has raised landowner concerns about potential land use restrictions, although no restrictions have ever been proposed by the Service.

    Implementing this proposed rule will also increase the efficiency of red wolf conservation efforts by focusing Service resources within the smaller NC NEP management area. This could have the further benefit of allowing Service resources to be redirected to other species recovery efforts, increasing capacity of the captive population and exploring additional reintroduction opportunities.

    Fostering coexistence between people and wolves is an essential element of all wolf conservation efforts, particularly so for the red wolf given that the vast majority of its historical range is comprised of private land. The extent to which this proposed rule fosters coexistence will depend on the ability of the Service and stakeholders to define policy goals related to red wolf recovery in terms of equity, liberty, security, and efficiency that balance the interests of those who support red wolf conservation and those with grave concerns regarding red wolf conservation. Red wolves in the NC NEP would continue to use private lands. Animals having genetic importance may be trapped and moved to either the NC NEP management area or captivity; however, most would remain on the landscape with their survival dependent on landowner tolerance and cooperation without regulation. It is unknown whether such a balance can be struck in eastern North Carolina or elsewhere, but this proposed rule seeks to find that balance. The Service is committed to investing locally in public education and outreach, with a goal towards local red wolf appreciation and peaceful coexistence with landowners since landowners will have no take prohibitions of red wolves on private lands.

    (3) What are the relative effects that establishment of an experimental population will have on the recovery of the red wolf?

    This proposed rule would have several beneficial effects that further the conservation of the species. First and foremost, it would retain a wild population of red wolves to exercise natural behaviors and adaptations to wild conditions. At a minimum, these animals would be important for retaining these aspects of red wolf behavioral ecology and serve as a wild stock for future reintroduction efforts. Second, it would enable the Service to focus limited resources on broader recovery efforts such as working with partners to grow the captive population to the established recovery goal and exploring additional reintroduction sites. Third, this proposed rule has a goal of furthering red wolf appreciation and peaceful coexistence with local landowners since landowners will have no take prohibitions of red wolves on private lands. If successful, this would be invaluable tools for red wolf recovery range-wide.

    The risk associated with the proposed action is that the very small number of red wolves that can be supported within the proposed NC NEP management area itself would face a continuing high risk of extirpation. We expect that there could still be some level of gunshot mortality, but we believe that, over time, if landowners adjacent to but outside the NC NEP management area are no longer regulated differently from the rest of the State, these circumstances would improve. Countering the risk of increased mortality outside the smaller NC NEP management area risk would require regular augmentation of the NC NEP with releases from the captive population. Absent careful management, such releases could have an adverse effect on the captive population. We believe this risk could be minimized or eliminated by carefully managing the captive population and increasing the capacity of the captive breeding facilities. Additionally, red wolves released from the captive population into the wild may engage in intraspecific strife with existing members of the NC NEP, which could upset group dynamics of established packs. We believe this risk can also be effectively managed through careful consideration of the number, timing, location, and methods of adding new animals to the NC NEP.

    There have been significant changes to the red wolf population and red wolf management in the NC NEP since the regulations were revised in 1995. As discussed earlier, the 1995 final rule was promulgated before management of red wolf and coyote interactions became a primary management consideration. As such, the current regulations do not explicitly incorporate RWAMWP activities. Additionally, the 1986 regulations explicitly authorized the release of only 12 red wolves into the NC NEP, whereas many more than 12 red wolves have been released outside the authorities under the current regulations, and evidence indicates that continuing additional releases are necessary to maintain the size and genetic health of the population (Faust et al. 2016). Further, we believe it is apparent that the current regulations are not effective in terms of fostering coexistence between people and red wolves, and that changes are needed to reconcile red wolf conservation with landowner needs and State efforts to manage coyotes. The current regulations are no longer effective in addressing the current and future management needs of the red wolf, and preclude the development of sound management strategies for this species. This proposed rule would explicitly authorize actions needed to carry out the RWAMWP, authorize additional releases from the captive population, and provide a new means of fostering coexistence between landowners and red wolves and cooperation among the Service, state, and landowners.

    (4) What is the extent to which the introduced population may be affected by existing or anticipated Federal or State actions or private activities within or adjacent to the experimental population area?

    In terms of the Federal lands within the proposed NC NEP management area, we anticipate that ongoing actions to manage red wolves would continue and be accompanied with additional measures to further the conservation of red wolves and their habitat (as appropriate in consideration of budgetary and other management considerations), including implementation of the RWAMWP within the NC NEP management area. Beyond the proposed NC NEP management area the ability of our partners and stakeholders to foster coexistence between people and red wolves on private land will largely determine the potential effects on the population. Potential changes from the State regarding lifting coyote hunting restrictions based on the proposed NC NEP management area is expected to decrease public dissent over red wolves, once landowners feel unencumbered to deal with coyote issues on their land.

    Peer Review

    In accordance with our Interagency Cooperative Policy for Peer Review in Endangered Species Act Activities, which was published on July 1, 1994 (59 FR 34270), and an August 22, 2016, memorandum clarifying the Service's interpretation and implementation of that policy, we will seek the expert opinion of at least three appropriate, independent specialists regarding scientific data and interpretations contained in this proposed rule. We will send copies of this proposed rule to the peer reviewers immediately following publication in the Federal Register. The purpose of such a review is to ensure that our decisions are based on scientifically sound data, assumptions, and analysis. Accordingly, the final decision may differ from this proposal.

    Supporting Documents

    A draft environmental assessment (DEA) has been prepared for this action. The DEA and other materials relating to this proposal can be found on our website at http://www.fws.gov/Raleigh and at http://www.regulations.gov under Docket No. FWS-R4-ES-2018-0035.

    Required Determinations Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget will review all significant rules. OIRA has determined that this proposed 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 proposed rule in a manner consistent with these requirements.

    Executive Order 13771—Reducing Regulation and Controlling Regulatory Costs

    This proposed rule is not an Executive Order (E.O.) 13771 (82 FR 9339, February 3, 2017) regulatory action because this proposed rule is not significant under E.O. 12866.

    Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C. 60 et seq.), whenever a Federal agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare, and make available for public comment, a regulatory flexibility analysis that describes the effect of the rule on small entities (small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of an agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that a rule will not have a significant economic impact on a substantial number of small entities. We are certifying that, if adopted as proposed, this rule will not have a significant economic impact on a substantial number of small entities. The following discussion explains our rationale.

    The area that would be affected under this rule includes Federal lands (NWR and Department of Defense) in portions of Dare and Hyde Counties. We do not expect this proposed rule would have significant effects on any activities within Federal, State, or private lands because of the regulatory flexibility for Federal agency actions provided by the proposed rule. Section 7(a)(2) of the Act requires that Federal agencies, in consultation with the Service, ensure that any action they authorize, fund, or carry out is not likely to jeopardize the continued existence of an endangered or threatened species or adversely modify its critical habitat. For the purposes of section 7(a)(2) of the Act, we treat an NEP as a threatened species only when the NEP is located within a National Wildlife Refuge or unit of the National Park Service. Under this proposed rule, this means intra-agency consultation would be required for activities on the Alligator River NWR.

    When members of a NEP are located outside a National Wildlife Refuge or National Park Service unit (in this case, on Dare County Bombing Range), then, for the purposes of section 7, they are treated as species proposed for listing, not as threatened species. This means section 7(a)(2) does not apply. Instead, section 7(a)(4) applies. This provides the Service with additional flexibility because under section 7(a)(4), Federal agencies are only required to confer (rather than consult) with the Service on actions that are likely to jeopardize the continued existence of a species proposed to be listed. Additionally, section 7(a)(4) conference only results in nonbinding recommendations that are optional to the agencies carrying out, funding, or authorizing the action at issue. Applying this framework to the proposed rule, section 7(a)(2) consultation would not be required for actions that occur outside of Alligator River NWR (i.e., on Dare County Bombing Range). Additionally, the experimental population of red wolves being proposed in this rule has been determined to be “nonessential”; that means the NEP is, by definition, not essential to the survival of the species. As a result, no action affecting the NEP could be likely to jeopardize the species under section 7(a)(4) of the Act. Therefore, some modifications to proposed Federal actions within Alligator River NWR and Dare County Bombing Range may occur to benefit the red wolf, but we do not expect projects to be substantially modified because these lands are already being administered in a manner that is compatible with the existing red wolf NC NEP.

    This proposed rule would authorize all forms of take of red wolves outside of the NEP management area except on Federal Lands and prescribe the forms of incidental take within the NC NEP management area, as described below. The regulations implementing the Act define “incidental take” as take that is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity such as, agricultural activities and other rural development, camping, hiking, hunting, vehicle use of roads and highways, and other activities in the NC NEP management area that are in accordance with applicable laws and regulations. Intentional take for purposes other than authorized data collection or recovery purposes would not be authorized. Intentional take for research or recovery purposes would require a section 10(a)(1)(A) recovery permit under the Act.

    The principal activities on private property near the NC NEP management area are timber production, agriculture, outdoor recreation, and activities associated with private residences. We believe the presence of the red wolf will not affect the use of lands for these purposes because there will be no new or additional economic or regulatory restrictions imposed upon States, non-Federal entities, or private landowners due to the presence of the red wolf, and Federal agencies would have to comply with section 7(a)(4) of the Act only in areas outside Alligator River NWR lands (i.e., Dare County Bombing Range). Therefore, this proposed rule is not expected to have any significant adverse impacts to activities on private lands. In fact, the proposed rule would represent a substantial increase in regulatory flexibility on non-Federal lands due to the proposed changes in the regulation of take of red wolves outside the NC NEP management area.

    Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.):

    (1) This rule would not “significantly or uniquely” affect small governments. We have determined and certify under the Unfunded Mandates Reform Act, 2 U.S.C. 1502 et seq., that this rulemaking would not impose a cost of $100 million or more in any given year on local or State governments or private entities. A Small Government Agency Plan is not required. As explained above, small governments would not be affected because the NEP designation would not place additional requirements on any city, county, or other local municipalities.

    (2) This rule would not produce a Federal mandate of $100 million or greater in any year (i.e., it is not a “significant regulatory action” under the Unfunded Mandates Reform Act). The NEP area designation for the red wolves would not impose any additional management or protection requirements on the States or other entities.

    Takings (E.O. 12630)

    In accordance with Executive Order 12630, the rule does not have significant takings implications. This proposed rule would allow for the take of reintroduced red wolves when such take is incidental to an otherwise legal activity, in accordance with Federal, State, and local laws and regulations. Therefore, we do not believe that the NC NEP would conflict with existing or proposed human activities.

    A takings implication assessment is not required because this rule (1) would not effectively compel a property owner to suffer a physical invasion of property, and (2) would not deny all economically beneficial or productive use of the land or aquatic resources. If adopted as proposed, this rule would substantially advance a legitimate government interest (conservation and recovery of a listed species) and would not present a barrier to all reasonable and expected beneficial use of private property.

    Federalism (E.O. 13132)

    In accordance with Executive Order 13132, we have considered whether this rule has significant Federalism effects and have determined that a federalism summary impact statement is not required. This rule would not have substantial direct effects on the States, on the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government. In keeping with Department of the Interior policy, we requested information from and coordinated development of this proposed rule with the affected resource agencies in North Carolina. Achieving the recovery goals for this species will contribute to its eventual delisting and its return to State management. No intrusion on State policy or administration is expected; roles or responsibilities of Federal or State governments would not change; and fiscal capacity would not be substantially directly affected. The proposed rule maintains the existing relationship between the State and the Federal Government, and is undertaken in coordination with the State of North Carolina. Therefore, this proposed rule does not have significant Federalism effects or implications to warrant the preparation of a federalism summary impact statement under the provisions of Executive Order 13132.

    Civil Justice Reform (E.O. 12988)

    In accordance with Executive Order 12988, the Office of the Solicitor has determined that this rule will not unduly burden the judicial system and meets the requirements of sections (3)(a) and (3)(b)(2) of the Order.

    Paperwork Reduction Act

    This rule does not contain any new collection of information that require approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). OMB has previously approved the information collection requirements associated with endangered and threatened wildlife—experimental populations (50 CR 17.84) and assigned OMB Control Number 1018-0095 (expires 12/31/2020). We estimate the annual burden associated with this information collection to be 52.5. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

    National Environmental Policy Act

    To ensure that we consider the environmental impacts associated with this proposed rule, we have prepared a DEA pursuant to the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.). In May 2017, we published an advance notice of proposed rulemaking and notice of intent to prepare a NEPA document (82 FR 23518; May 23, 2017). This initiated a public scoping process that included a request for written comments and two public scoping meetings in June 2017. We have incorporated information collected since that scoping process began in the development of a DEA. We will use information from this analysis to inform our final decision.

    Government-to-Government Relationship With Tribes

    In accordance with the presidential memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951; May 4, 1994), Executive Order 13175 (65 FR 67249; November 9, 2000), and the Department of the Interior Manual Chapter 512 DM 2, we have considered possible effects on federally recognized Indian tribes and have determined that there are no tribal lands affected by this proposed rule.

    Energy Supply, Distribution, or Use (E.O. 13211)

    Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. This proposed rule is not expected to significantly affect energy supplies, distribution, or use. Because this action is not a significant energy action, no Statement of Energy Effects is required.

    References Cited

    A complete list of all references cited in this proposed rule is available at http://www.regulations.gov at Docket No. FWS-R4-ES-2018-0035 or upon request from the Raleigh Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

    Authors

    The primary authors of this proposed rule are staff members of the Service's Southeast Region.

    List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.

    Proposed Regulation Promulgation

    Accordingly, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:

    PART 17—ENDANGERED AND THREATENED WILDLIFE AND PLANTS 1. The authority citation for part 17 continues to read as follows: Authority:

    16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless otherwise noted.

    2. Amend § 17.11(h) by revising the entry for “Wolf, red” under MAMMALS in the List of Endangered and Threatened Wildlife to read as follows:
    § 17.11 Endangered and threatened wildlife.

    (h) * * *

    Common name Scientific name Where listed Status Listing citations and applicable rules Mammals *         *         *         *         *         *         * Wolf, red Canis rufus Wherever found, except where listed as an experimental population E 32 FR 4001, 3/11/1967; 51 FR 41790, 11/19/1986; 56 FR 56325, 11/4/1991; 60 FR 18941, 4/13/1995. Wolf, red Canis rufus U.S.A. (portions of NC—see § 17.84(c)(4)) XN 51 FR 41790, 11/19/1986; 56 FR 56325, 11/4/1991; 60 FR 18941, 4/13/1995; [Federal Register citation of the final rule]; 50 CFR 17.84(c)10j. *         *         *         *         *         *         *
    3. Amend § 17.84 by revising paragraph (c) to read as follows:
    § 17.84 Special rules—vertebrates.

    (c) Red wolf (Canis rufus).

    (1) Purpose. The U.S. Fish and Wildlife Service (Service) finds it necessary to establish regulations governing management of the experimental population of red wolves to further the conservation of the red wolf.

    (2) Determinations. (i) The red wolf population established in the designated area identified in paragraph (c)(4) of this section is a nonessential experimental population under § 17.81(c)(2) and is referred to as the North Carolina nonessential experimental population (NC NEP). This nonessential experimental population will be managed according to the provisions of this paragraph. The Service does not intend to change the nonessential experimental designation to essential experimental. Critical habitat cannot be designated under the nonessential experimental classification (16 U.S.C. 1539(j)(2)(C)(ii)).

    (ii) The designated experimental population area the NC NEP is within the species' probable historical range. The red wolf is otherwise extirpated in the wild, and, therefore, this experimental population is wholly separate from any other known red wolves.

    (3) Definitions. Key terms used in this paragraph have the following definitions:

    (i) Depredation means the confirmed killing or wounding of lawfully present domestic animals by one or more red wolves. The Service or other Service-designated agencies will confirm cases of red wolf depredation.

    (ii) Designated agency means a Federal, State, tribal or private agency or entity designated by the Service to assist in implementing this paragraph, all or in part, consistent with a Service-approved management measure, conference opinion pursuant to section 7(a)(4) of the Act, cooperative agreement pursuant to section 6(c) of the Act as described in § 17.31 for State conservation agencies with authority to manage red wolves, or a valid permit issued by the Service through § 17.32.

    (iii) Domestic animal means livestock, defined at paragraph (c)(3)(ix) of this section; pets; and non-feral dogs.

    (iv) Federal land means public land under the administration of Federal agencies including, but not limited to, the Service, Department of Defense, National Park Service, or U.S. Forest Service.

    (v) Feral dog means any dog (Canis familiaris) or wolf-dog hybrid that, because of absence of physical restraint or conspicuous means of identifying it at a distance as non-feral, is reasonably thought to range freely without discernible, proximate control by any person. Feral dogs do not include domestic dogs that are penned, leased, or otherwise restrained (e.g., by shock collar) or which are working livestock or being lawfully used to trail or locate wildlife.

    (vi) Harass means intentional or negligent actions or omissions that create the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns, which include, but are not limited to, breeding, feeding or sheltering.

    (vii) Intentional harassment means deliberate, pre-planned harassment of red wolves, including by less-than-lethal means (such as 12-gauge shotgun rubber bullets and bean-bag shells) designed to cause physical discomfort and possible temporary physical injury, but not death. Intentional harassment includes situations where red wolves may have been unintentionally attracted—or intentionally tracked, waited for, chased, or searched out—and then harassed.

    (viii) Livestock means cattle, goats, sheep, horses or other domestic animals defined as livestock in Service-approved State management plans. Poultry is not considered livestock under this paragraph.

    (ix) Non-Federal land means any lands not owned by the Federal government.

    (x) Opportunistic harassment means scaring any red wolf from the immediate area by taking actions such as discharging firearms or other projectile-launching devices in proximity to, but not in the direction of, the wolf; throwing objects at the wolf; or making loud noise in proximity to the wolf. Such harassment might cause temporary, non-debilitating physical injury, but is not reasonably anticipated to cause permanent physical injury or death.

    (xi) Problem red wolves means red wolves that, for purposes of management and control by the Service or its designated agency, are:

    (A) Individuals or members of a group or pack (including adults, yearlings, and pups greater than 4 months of age) that were involved in a depredation on lawfully present domestic animals;

    (B) Habituated to humans, human residences, or other facilities largely occupied by humans; or

    (C) Aggressive towards humans when unprovoked.

    (xii) Service-approved management plan means a management plan approved by the Regional Director or Director of the Service through which Federal, State, or tribal agencies may become a designated agency. The management plan must address how red wolves will be managed to achieve conservation goals in compliance with the Act, these regulations, and other Service policies. If a Federal, State, tribal or private agency becomes a designated agency through a Service-approved management plan, the Service will help coordinate activities while retaining authority for program direction, oversight, guidance and authorization for red wolf removals.

    (xiii) Take means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct (16 U.S.C. 1532(19)).

    (xiv) Translocation means the release of red wolves back into the wild that have previously been in the wild.

    (xv) Unintentional take means the take of a red wolf by a person if the take is unintentional and occurs while engaging in an otherwise lawful activity, occurs despite the use of due care, is coincidental to an otherwise lawful activity, and is not done on purpose. Taking of a red wolf by poisoning or shooting within the NC NEP management area will not be considered unintentional take.

    (xvi) Wounded means exhibiting scraped or torn hide or flesh, bleeding, or other evidence of physical damage caused by a red wolf bite.

    (4) Designated area. The boundaries of the NC NEP management area correspond to all lands within the Alligator River National Wildlife Refuge and the Dare County Bombing Range. All red wolves in the wild are considered part of the NC NEP. Red wolves that disperse outside the Alligator River National Wildlife Refuge and the Dare County Bombing Range will be managed according to the measures set forth in this paragraph for red wolves outside the NC NEP management area.

    (5) Prohibitions. Take of any red wolf in the NC NEP management area is prohibited, except as provided at paragraph (c)(7) of this section. Additionally, the following actions are prohibited:

    (i) This paragraph does not alter or supersede the rules governing the take of wildlife on units of the National Wildlife Refuge System. In accordance with 50 CFR 27.21, no person shall take any animal or plant on any national wildlife refuge, except as authorized under 50 CFR 27.51 and 50 CFR parts 31, 32, and 33.

    (ii) No person may possess, sell, deliver, carry, transport, ship, import, or export by any means whatsoever any red wolf or wolf part except as authorized in this paragraph or by a valid permit issued by the Service under § 17.32. If a person kills or injures a red wolf or finds a dead or injured red wolf or red wolf parts within the NC NEP management area, the person must not disturb them (unless instructed to do so by the Service or a designated agency), must minimize disturbance of the area around the carcass, and must report the incident to the Eastern North Carolina Ecological Services Field Sub-Office in accordance with paragraph (c)(6) of this section.

    (iii) Purposely taking a red wolf with a trap, snare, or other type of capture device within the NC NEP management area is prohibited (except as authorized in paragraph (c)(7) of this section) and will not be considered unintentional take.

    (6) Reporting requirements. Unless otherwise specified in this paragraph or in a permit, any take of a red wolf must be reported to the Service or a designated agency within 24 hours. Report any take of red wolves, including opportunistic harassment, to the Service either by U.S. mail at Eastern North Carolina Ecological Services Field Sub-Office, 100 Conservation Way, Manteo, NC 27954; or by telephone at (252) 473-1132. Additional contact information can also be found on the Red Wolf Recovery Program's website at https://www.fws.gov/southeast/wildlife/mammal/red-wolf/. Unless otherwise specified in a permit, any red wolf or red wolf part taken legally must be turned over to the Service, which will determine the disposition of any live or dead red wolves.

    (7) Allowable forms of take of red wolves within the NC NEP Management Area. Take of red wolves in the NC NEP management area is allowed as follows:

    (i) Take in defense of human life. Under 16 U.S.C. 1540(a)(3) and § 17.21(c)(2), any person may take (which includes killing as well as nonlethal actions such as harassing or harming) a red wolf in self-defense or defense of the lives of others. This take must be reported in accordance with paragraph (c)(6) of this section. If the Service or a designated agency determines that a red wolf presents a threat to human life or safety, the Service or the designated agency may kill the red wolf or place it in captivity.

    (ii) Take for research purposes. The Service may issue permits under § 17.32, and designated agencies may issue permits under State and Federal laws and regulations, for individuals to take red wolves pursuant to scientific study proposals approved by the agency or agencies with jurisdiction for red wolves and for the area in which the study will occur. Such take should lead to management recommendations for, and thus provide for the conservation of, the red wolf.

    (iii) Unintentional take. (A) Take of a red wolf within the NC NEP management area by any person is allowed if the take is unintentional take and occurs while engaging in an otherwise lawful activity such as while driving the speed limit. Such take must be reported in accordance with paragraph (c)(6) of this section. Permitted hunters hunting on the refuge have the responsibility to identify their quarry or target before shooting; therefore, shooting a red wolf as a result of mistaking it for another species will not be considered unintentional take.

    (B) Federal or State agency employees or their contractors may take a red wolf or wolf-like animal if the take is unintentional and occurs while engaging in the course of their official duties. This includes, but is not limited to, military training and testing. Take of red wolves by Federal or State agencies must be reported in accordance with paragraph (c)(6) of this section.

    (C) Take of red wolves by U.S. Department of Agriculture, Animal and Plant Health Inspection Service, Wildlife Services (USDA-APHIS-WS) employees while conducting official duties associated with wildlife damage management activities for species other than red wolves may be considered unintentional if it is coincidental to a legal activity and the USDA-APHIS-WS employees have adhered to all applicable USDA-APHIS-WS policies, red wolf standard operating procedures, and reasonable and prudent measures or recommendations contained in USDA-APHIS-WS biological and conference opinions.

    (8) Allowable forms of take of red wolves outside the NC NEP Management Area. On non-Federal lands anywhere outside the NC NEP management area, there are no prohibitions on the take of red wolves. Reporting take to the Service is encouraged. If the animal taken has a telemetry collar, said collar is the property of the Service or the NCWRC and must be returned. While there are no take prohibitions outside of the NC NEP management area, the prohibition on possessing, selling, delivering, carrying, transporting, shipping, importing, or exporting red wolves or red wolf parts set forth at paragraph (c)(5)(ii) of this section applies to red wolves taken outside the NC NEP management area.

    (9) Take by Service personnel or a designated agency. The Service or a designated agency may take any red wolf in a manner consistent with a Service-approved management plan, biological opinion pursuant to section 7(a)(2) of the Act, conference opinion pursuant to section 7(a)(4) of the Act, cooperative agreement pursuant to section 6(c) of the Act as described at § 17.31 for North Carolina Wildlife Resources Commission, or a valid permit issued by the Service through § 17.32.

    (A) The Service or designated agency may use leg-hold traps and any other effective device or method for capturing or killing red wolves to carry out any measure that is a part of a Service-approved management plan or valid permit issued by the Service under § 17.32. The disposition of all red wolves (live or dead) or their parts taken as part of a Service-approved management activity must follow provisions in Service-approved management plans or interagency agreements or procedures approved by the Service on a case-by-case basis.

    (B) The Service or designated agency may capture, kill, subject to genetic testing, place in captivity, or euthanize any wolf hybrid found within the NC NEP that shows physical or behavioral evidence of hybridization with other canids, such as domestic dogs or coyotes; that was raised in captivity, other than as part of a Service-approved red wolf recovery program; or that has been socialized or habituated to humans. If determined to be a red wolf, the wolf may be returned to the wild on-site, released within the NC NEP management area or put in captivity.

    (C) To manage any wolves determined to be problem red wolves, as defined at paragraph (c)(3)(xii) of this section, the Service or designated agency may carry out intentional or opportunistic harassment, nonlethal control measures, capture, sterilization, translocation, placement in captivity, or lethal control. To determine the presence of problem red wolves, the Service will consider all of the following:

    (1) Evidence of wounded domestic animal(s) or remains of domestic animal(s) that show that the injury or death was caused by red wolves;

    (2) The likelihood that additional red wolf-caused depredations or attacks of domestic animals may occur if no harassment, nonlethal control, translocation, placement in captivity, or lethal control is taken;

    (3) Evidence of attractants or intentional feeding (baiting) of red wolves; and

    (4) Evidence that red wolves are habituated to humans, human residences, or other facilities regularly occupied by humans, or evidence that red wolves have exhibited unprovoked and aggressive behavior toward humans.

    (10) Management. (i) Within the NC NEP management area, the Service or designated agencies or partners will develop and implement a plan for the adaptive management of red wolves. This plan will include all actions needed to implement the Red Wolf Adaptive Management Work Plan including, but not limited to: Release of up to five animals per year from the captive population or the St. Vincent NWR propagation site into the NC NEP; deployment of placeholder animals; movement of animals within the NC NEP; trapping, handling, and monitoring members of the NC NEP population; and moving animals from the NC NEP into captivity as needed. Any updates to the adaptive management plan will be made public.

    (ii) The Service may develop and implement other management actions to benefit red wolf recovery in cooperation with the North Carolina Wildlife Resources Commission, willing private landowners, and other stakeholders. Such actions may include actions identified in biological opinions pursuant to section 7(a)(2) of the Act, conference opinions pursuant to section 7(a)(4) of the Act, cooperative agreements pursuant to section 6(c) of the Act as described in § 17.31 for North Carolina Wildlife Resources Commission, or a valid permit issued by the Service through § 17.32.

    (11) Evaluation. The Service will evaluate the effectiveness of these regulations at furthering the conservation of the red wolf. At 5-year intervals concurrent with the species' 5 year reviews, the Service will evaluate the experimental population program, focusing on modifications needed to improve the efficacy of these regulations, and the contribution the experimental population is making to the conservation of the red wolf. Evaluation will be based on explicit objective and measurable criteria that encompass relevant scientific, management, human-dimension, and available resources considerations.

    Dated: June 15, 2018. James W. Kurth, Deputy Director, U.S. Fish and Wildlife Service, Exercising the Authority of the Director for the U.S. Fish and Wildlife.
    [FR Doc. 2018-13906 Filed 6-27-18; 8:45 am] BILLING CODE 4333-15-P
    83 125 Thursday, June 28, 2018 Notices DEPARTMENT OF AGRICULTURE Agricultural Marketing Service [Doc. No. AMS-DA-18-0026] Notice of Request for Extension and Revision of a Currently Approved Information Collection AGENCY:

    Agricultural Marketing Service, USDA.

    ACTION:

    Notice and request for comments.

    SUMMARY:

    In accordance with the Paperwork Reduction Act of 1995, this notice announces the Agricultural Marketing Service's (AMS) intention to request approval, from the Office of Management and Budget, for an extension of and revision to the currently approved information collection.

    DATES:

    Comments on this notice must be received by August 27, 2018 to be assured of consideration.

    ADDRESSES:

    Interested persons are invited to submit comments concerning this notice by using the electronic process available at www.regulations.gov. Written comments may also be submitted to Camia R. Lane, Grading and Standardization Branch, Dairy Programs, Agricultural Marketing Service, U.S. Department of Agriculture, Room 2968—South Building, 1400 Independence Avenue SW, Washington, DC 20250-0230: Tel: (202) 720-1671, Fax: (202) 720-2643, or via email at [email protected] All comments should reference the docket number (same number as above assigned by Originating Program), the date, and the page number of this issue of the Federal Register. All comments received will be posted without change, including any personal information provided, at www.regulations.gov and will be included in the record and made available to the public.

    FOR FURTHER INFORMATION CONTACT:

    Camia R. Lane, Grading and Standardization Branch, Dairy Programs, Agricultural Marketing Service, U.S. Department of Agriculture, Room 2968—South Building, 1400 Independence Avenue SW, Washington, DC 20250-0230: Tel: (202) 720-1671, Fax: (202) 720-2643.

    SUPPLEMENTARY INFORMATION:

    Title: Requirements Under Regulations Governing Inspection and Grading Services of Manufactured or Processed Dairy Products.

    OMB Number: 0581-0126.

    Expiration Date of Approval: November 30, 2018.

    Type of Request: Extension and revision of a currently approved information collection.

    Abstract: The Agricultural Marketing Act (AMA) of 1946 (7 U.S.C. 1621 et seq.) directs the Department to develop programs which will provide for and facilitate the marketing of agricultural products. One of these programs is the USDA voluntary inspection and grading program for dairy products, its regulations are contained in (7 CFR part 58). The regulations governing the certification of sanitary design and fabrication of equipment used in the slaughter, processing, and packaging of livestock and poultry products are contained in (7 CFR part 54). To ensure that a voluntary inspection program performs satisfactorily, there must be written requirements and rules for both Government and industry. The information requested is used to identify the products offered for grading; to identify a request from a manufacturer of equipment used in dairy, meat or poultry industries for evaluation regarding sanitary design and construction; to identify and contact the party responsible for payment of the inspection, grading or equipment evaluation fee and expense; and to identify applicants who wish to be authorized for the display of official identification on product packaging, materials, equipment, utensils, or on descriptive promotional materials.

    Estimate of Burden: Public reporting burden for this collection of information is estimated to average .0.170 hours per response.

    Respondents: Dairy product manufacturers, consultants, installers, dairy equipment fabricators and meat and poultry processing equipment fabricators.

    Estimated Number of Respondents: 306.

    Estimated Total Annual Responses: 11,389.

    Estimated Number of Responses per Respondent: 37.22.

    Estimated Total Annual Burden on Respondents: 1,944 hours.

    Comments are invited on: (1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of the burden of the proposed collection of information including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology. Comments may be sent to Camia R. Lane, Grading and Standardization Branch, Dairy Programs, Agricultural Marketing Service, U.S. Department of Agriculture, Room 2968—South Building, 1400 Independence Avenue SW, Washington, DC 20250-0230: Tel: (202) 720-1671, Fax: (202) 720-2643, or via email at [email protected] All comments received will be available for public inspection during regular business hours at the same address.

    All responses to this notice will be summarized and included in the request for OMB approval. All comments will become a matter of public record.

    Dated: June 25, 2018. Bruce Summers, Administrator, Agricultural Marketing Service.
    [FR Doc. 2018-13911 Filed 6-27-18; 8:45 am] BILLING CODE 3410-02-P
    DEPARTMENT OF AGRICULTURE Submission for OMB Review; Comment Request June 25, 2018.

    The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments are requested regarding (1) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.

    Comments regarding this information collection received by July 30, 2018 will be considered. Written comments should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), New Executive Office Building, 725 17th Street NW, Washington, DC 20502. Commenters are encouraged to submit their comments to OMB via email to: [email protected] or fax (202) 395-5806 and to Departmental Clearance Office, USDA, OCIO, Mail Stop 7602, Washington, DC 20250-7602. Copies of the submission(s) may be obtained by calling (202) 720-8958.

    An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.

    Animal and Plant Health Inspection Service

    Title: Animal Disease Traceability.

    OMB Control Number: 0579-0327.

    Summary of Collection: The Animal Health Protection Act of 2002 (7 U.S.C. 8301-8317) is the primary Federal law governing the protection of animal health. The law gives the Secretary of Agriculture broad authority to detect, control, or eradicate pests or diseases of livestock or poultry. As part of its ongoing efforts to safeguard animal health, the U.S. Department of Agriculture's Animal and Plant Health Inspection Service (APHIS) developed the Animal Disease Traceability (ADT) framework which continues to be a partnership involving APHIS, States, Tribes, and industry to provide a system for animal traceability. Traceability helps document the movement history of an animal throughout its life, including during an emergency response or for ongoing animal disease programs.

    Need and Use of the Information: APHIS uses information provided by businesses, States, and Tribal Nations to facilitate animal disease traceability and support disease control, eradication, and surveillance activities. Some of the information collection activities include: Applications for use of more than official identification device; applications for and approval of tagging sites; evaluation of States and Tribes; documentation of completion of performance measures; commuter herd agreements; collection of identification devices at slaughter; obtaining official eartags; application of State shields; official identification device distribution records; certification of veterinary inspection; unauthorized removal or loss of official identification devices; reporting retagging animal records; premises identification and updates; nonproducer participant registration; official identification device applications and approved identification device manufacturer agreements and updates; animal identification number manager registration, agreements, and updates; cooperative agreements; State/Tribe quarterly reports; animal disease tractability road maps; eartag orders; program site tag information; records of tags issues and applied; coordination of tag orders with manufacturers; reporting loss, theft, and misuse of tags; removal or replacement of eartags; and recordkeeping. If this information was not collected, APHIS' ability to address traceability needs would be significantly hampered.

    Description of Respondents: State, Local, or Tribal Government; Businesses.

    Number of Respondents: 275,622.

    Frequency of Responses: Recordkeeping; Third-Party Disclosure; Reporting: On occasion.

    Total Burden Hours: 1,314,736.

    Ruth Brown, Departmental Information Collection Clearance Officer.
    [FR Doc. 2018-13929 Filed 6-27-18; 8:45 am] BILLING CODE 3410-34-P
    DEPARTMENT OF AGRICULTURE Submission for OMB Review; Comment Request June 25, 2018.

    The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments are requested regarding (1) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.

    Comments regarding this information collection received by July 30, 2018 will be considered. Written comments should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), New Executive Office Building, 725 17th Street NW, Washington, DC 20502. Commenters are encouraged to submit their comments to OMB via email to: [email protected] or fax (202) 395-5806 and to Departmental Clearance Office, USDA, OCIO, Mail Stop 7602, Washington, DC 20250-7602. Copies of the submission(s) may be obtained by calling (202) 720-8958.

    An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.

    Foreign Agricultural Service

    Title: Sugar Imported for Exports as Refined Sugar, as a Sugar-Containing Product, or Used in Production of Certain Polyhydric Alcohols.

    OMB Control Number: 0551-0015.

    Summary of Collection: The regulation at 7 CFR part 1530 authorizes the Foreign Agricultural Service (FAS) to issue import licenses to enter raw cane sugar exempt from the tariff-rate quota (TRQ) for the raw cane sugar imports and related requirements on the condition that an equivalent quantity of refined sugar be: (1) Exported as refined sugar; (2) exported as an ingredient in sugar containing products; or (3) used in production of certain polyhydric alcohols. The information requirements set forth in the regulation are necessary to enable FAS to administer the licensing program in full compliance with the regulation and to ensure that licensed imports do not enter the commercial sugar market in circumvention of the TRQ for raw cane sugar.

    Need and Use of the Information: FAS will collect information to verify that the world-priced sugar is actually exported and not diverted onto the domestic market, thereby undermining the objectives of politically sensitive U.S. sugar policies. This collection enables USDA to monitor participants in an effort to ensure compliance with program parameters. Without the collection, there would be increased opportunity to divert sugar onto the domestic market.

    Description of Respondents: Business or other for-profit.

    Number of Respondents: 325.

    Frequency of Responses: Recordkeeping; Reporting; Quarterly.

    Total Burden Hours: 414.

    Foreign Agricultural Service

    Title: Specialty Sugar Certificate Application.

    OMB Control Number: 0551-0025.

    Summary of Collection: The collect of information is necessary to fulfill the legal obligations of the regulation at 15 CFR 2011 subpart B to issue specialty sugar certificates, letters to importers signed by the Foreign Agricultural Service (FAS) Certifying Authority, and ensuring that U.S. importers comply with the program's requirements. The regulation sets forth the terms and conditions under which the Certifying Authority in FAS issues certificates to importers allowing them to enter specialty sugars under the tariff-rate quota (TRQ) for refined sugar.

    Need and Use of the Information: The collected information will be used to: (1) Determine whether applicants for the program meet the regulation's eligibility criteria; (2) ensure that sugar to be imported is specialty sugar and meets the requirements of the regulation; (3) audit participants' compliance with the regulation; and (4) prevent entry of world-priced program sugar from entering the domestic commercial market instead of domestic specialty sugar market. The Certifying Authority needs the information to manage, plan, evaluate, and account for program activities. Less frequent collection or no collection would impede administration of the specialty sugar certificate program and reduce or eliminate imports essential to U.S. organic food and beverages processors.

    Description of Respondents: Business or other for-profit.

    Number of Respondents: 60.

    Frequency of Responses: Reporting: Annually.

    Total Burden Hours: 66.

    Ruth Brown, Departmental Information Collection Clearance Officer.
    [FR Doc. 2018-13889 Filed 6-27-18; 8:45 am] BILLING CODE 3410-10-P
    DEPARTMENT OF AGRICULTURE Foreign Agricultural Service Notice of Request for Revision of a Currently Approved Information Collection AGENCY:

    Foreign Agricultural Service.

    ACTION:

    Notice and request for comments.

    SUMMARY:

    In accordance with the Paperwork Reduction Act (PRA) of 1995, this notice announces the intention of the Foreign Agricultural Service to request a revision of a currently approved information collection for the Agriculture Wool Apparel Manufacturers Trust Fund.

    DATES:

    Comments on this notice must be received by August 27, 2018 to be assured of consideration.

    ADDRESSES:

    FAS invites interested persons to submit comments on this notice. In your comment, include the volume, date, and page number of this issue of the Federal Register. You may submit comments by any of the following methods:

    Federal eRulemaking Portal: Go to http://www.regulations.gov. This website provides the ability to type short comments directly into the comment field on this web page or attach a file for lengthier comments. Follow the on-line instructions for submitting comments.

    Mail, hand delivery, or courier: Peter W. Burr, Foreign Agricultural Service, U.S. Department of Agriculture, 1400 Independence Avenue SW, Room 5531, Mailstop 1021, Washington, DC 20250.

    Email: [email protected]. Include Agency Name and the OMB Control Number in the subject line of the message.

    Instructions: All submissions submitted by mail or electronic mail must include the Agency name and OMB Control Number. Comments received in response to this docket will be made available for public inspection and posted without change, including any personal information, to http://www.regulations.gov.

    Persons with disabilities who require an alternative means for communication of information (e.g., Braille, large print, audiotape, etc.) should contact USDA's Target Center at (202) 720-2600 (voice and TDD).

    FOR FURTHER INFORMATION CONTACT:

    Peter W. Burr, (202) 720-8877, [email protected].

    SUPPLEMENTARY INFORMATION:

    Title: Agriculture Wool Apparel Manufacturers Trust Fund.

    OMB Control Number: 0551-0045.

    Expiration Date of Approval: September 30, 2018.

    Type of Request: Revision of a currently approved information collection.

    Abstract: This information collection is required for affidavits submitted to FAS for claims against the Agriculture Wool Apparel Manufacturers Trust Fund. Claimants of the Agriculture Wool Apparel Manufacturers Trust Fund will be required to submit electronically a notarized affidavit and information pertaining to the production of worsted wool suits, suit-type jackets, or trousers for boys and men; or the weaving of wool yarn, wool fiber, or wool top. This electronic filing would be in lieu of the current paper document submission.

    Estimate of Burden: Public reporting burden for this collection of information is estimated to average approximately 2 hours per response for affidavits related to the Agriculture Wool Apparel Manufacturers Trust Fund.

    Type of Respondents: Under the Agriculture Wool Apparel Manufacturers Trust Fund there are four groups of potential respondents, as authorized by Section 12315 of Act (Pub. L. 113-79): (1) Persons in the United States who produced worsted wool suits, suit-type jackets, or trousers for men and boys in the year prior to the application using worsted wool fabric of the kind described in headings 9902.51.11, 9902.51.15, or who wove worsted wool fabrics suitable for use in making men and boys suits under heading 9902.51.16 of the Harmonized Tariff Schedule of the United States; (2) Persons in the United States who processed wool yarn, wool fiber, or wool top of the kind described in headings 9902.51.13 or 9902.51.14 of the Harmonized Tariff Schedule of the United States in the year prior to the application; (3) Persons in the United States who wove worsted wool fabrics of the kind described in headings 9902.51.11 and or 9902.51.15 of the Harmonized Tariff Schedule of the United States in the year prior to the application and in the years 1999, 2000, and 2001; (4) Persons in the United States who manufactured certain wool articles made with certain imported wool products during calendar years 2000, 2001, and 2002; received a 2005 payment under section 505 of the Trade and Development Act of 2000; and who continue to be a manufacturer in the United States as provided for in Section 505(a) of the Trade and Development Act of 2000.

    Estimated Number of Respondents: 95.

    Estimated Number of Responses: 95.

    Estimated Number of Responses per Respondent: 1.

    Estimated Total Annual Burden on Respondents: 190 hours.

    Request for Comments: We are requesting comments on all aspects of this information collection to help us to: (1) Evaluate whether the collection of information is necessary for the proper performance of FAS's functions, including whether the information will have practical utility; (2) Evaluate the accuracy of FAS's estimate of burden including the validity of the methodology and assumptions used; (3) Enhance the quality, utility and clarity of the information to be collected; and (4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology. Copies of this information collection can be obtained from Connie Ehrhart, the Agency Information Collection Coordinator, at (202) 690-1578 or email at [email protected].

    All comments received in response to this notice, including names and addresses when provided, will be a matter of public record. Comments will be summarized and included in the submission for the Office of Management and Budget's approval.

    E-Government Act Compliance

    FAS is committed to complying with the E-Government Act, to promote the use of the internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

    Dated: June 18, 2018. Ken Isley, Administrator, Foreign Agricultural Service.
    [FR Doc. 2018-13910 Filed 6-27-18; 8:45 am] BILLING CODE 3410-10-P
    COMMISSION ON CIVIL RIGHTS Agenda and Notice of Public Meeting of the Vermont Advisory Committee AGENCY:

    Commission on Civil Rights.

    ACTION:

    Announcement of meeting.

    SUMMARY:

    Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission), and the Federal Advisory Committee Act (FACA) that a planning meeting of the Vermont Advisory Committee to the Commission will convene at 1:00 p.m. (EDT) on Thursday, July 12, 2018, at Community College of Vermont, 660 Elm St., Montpelier, 05602. The purpose of the meeting is to review potential civil rights topics for future study in the state.

    DATES:

    Thursday, July 12, 2018, at 1:00 p.m. (EDT).

    ADDRESSES:

    Community College of Vermont, 660 Elm St., Montpelier, 05602.

    FOR FURTHER INFORMATION CONTACT:

    Evelyn Bohor at [email protected], or 202-376-7533.

    SUPPLEMENTARY INFORMATION:

    Persons who plan to attend the meeting and who require other accommodations, please contact Evelyn Bohor at [email protected] at the Rocky Mountain Regional Office at least ten (10) working days before the scheduled date of the meeting.

    Members of the public are invited to submit written comments; the comments must be received in the regional office by Monday, August 13, 2018. Written comments may be mailed to the Eastern Regional Office, U.S. Commission on Civil Rights, 1331 Pennsylvania Avenue, Suite 1150, Washington, DC 20425, faxed to (202) 376-7548, or emailed to Evelyn Bohor at [email protected] Persons who desire additional information may contact the Eastern Regional Office at (202) 376-7533.

    The activities of this advisory committee, including records and documents discussed during the meeting, will be available for public viewing, as they become available at: https://database.faca.gov/committee/meetings.aspx?cid=239. Records generated from this meeting may also be inspected and reproduced at the Eastern Regional Office, as they become available, both before and after the meeting. Persons interested in the work of this advisory committee are advised to go to the Commission's website, www.usccr.gov, or to contact the Eastern Regional Office at the above phone number, email or street address.

    Agenda Discussion of Potential Civil Rights Topics Discussion of Potential Topics of Study Open Comment Adjourn Dated: June 25, 2018. David Mussatt, Supervisory Chief, Regional Programs Unit.
    [FR Doc. 2018-13950 Filed 6-27-18; 8:45 am] BILLING CODE 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: Census Employment Inquiry.

    OMB Control Number: 0607-0139.

    Form Number(s): BC-170, BC-170(SP), BC-171, and BC-171(SP).

    Type of Request: Revision of a currently approved collection.

    Number of Respondents: 3,000,000 respondents for the 3-year period. (1,000,000 respondents annually).

    Average Hours per Response: 20 min between both forms—15 minutes for completing the BC-170 and 5 minutes for completing the BC-171.

    Burden Hours: 1,000,000 burden hours for the 3-year period (333,334 burden hours annually).

    Needs and Uses: Application for benefits.

    Affected Public: Individuals or households.

    Frequency: One time.

    Respondent's Obligation: Required to obtain or retain benefits.

    Legal Authority: Title 13 U.S.C., Chapter 1, Subchapter II, Section 23 a and c.; Title 5 U.S.C., Part II, Chapter 13; Title 5 U.S.C. Part III, Chapter 33, Subchapter 1, Section 1 and 20.

    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 Lead PRA Officer, Office of the Chief Information Officer.
    [FR Doc. 2018-13890 Filed 6-27-18; 8:45 am] BILLING CODE 3510-07-P
    DEPARTMENT OF COMMERCE Foreign-Trade Zones Board [B-13-2018] Foreign-Trade Zone (FTZ) 138—Franklin County, Ohio; Authorization of Production Activity; International Converter (Insulation Facer); Caldwell, Ohio

    On February 23, 2018, International Converter submitted a notification of proposed production activity to the FTZ Board for its facility within Subzone 138H, in Caldwell, Ohio.

    The notification was processed in accordance with the regulations of the FTZ Board (15 CFR part 400), including notice in the Federal Register inviting public comment (83 FR 8966-8967, March 2, 2018). On June 25, 2018, the applicant was notified of the FTZ Board's decision that no further review of the activity is warranted at this time. The production activity described in the notification was authorized, subject to the FTZ Act and the FTZ Board's regulations, including Section 400.14.

    Dated: June 25, 2018. Andrew McGilvray, Executive Secretary.
    [FR Doc. 2018-13915 Filed 6-27-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE Foreign-Trade Zones Board [B-14-2018] Foreign-Trade Zone (FTZ) 158—Vicksburg/Jackson, Mississippi; Authorization of Production Activity; International Converter (Insulation Facer); Iuka, Mississippi

    On February 23, 2018, International Converter submitted a notification of proposed production activity to the FTZ Board for its facility within FTZ 158, in Iuka, Mississippi.

    The notification was processed in accordance with the regulations of the FTZ Board (15 CFR part 400), including notice in the Federal Register inviting public comment (83 FR 8965-8966, March 2, 2018). On June 25, 2018, the applicant was notified of the FTZ Board's decision that no further review of the activity is warranted at this time. The production activity described in the notification was authorized, subject to the FTZ Act and the FTZ Board's regulations, including Section 400.14.

    Dated: June 25, 2018. Andrew McGilvray, Executive Secretary.
    [FR Doc. 2018-13916 Filed 6-27-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-583-853] Certain Crystalline Silicon Photovoltaic Products From Taiwan: Final Results of Antidumping Duty Administrative Review; 2016-2017 AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (Commerce) continues to find that manufacturers/exporters of certain crystalline silicon photovoltaic products (solar products) sold solar products at less than normal value during the period of review (POR), February 1, 2016, through January 31, 2017.

    DATES:

    Applicable June 28, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Thomas Martin, AD/CVD Operations, Office IV, Enforcement and Compliance, International Trade Administration, Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-3936, respectively.

    SUPPLEMENTARY INFORMATION:

    Background

    On December 20, 2017, Commerce published the Preliminary Results of this administrative review.1 On January 26, 2018, Commerce published Amended Preliminary Results. 2 For the events that occurred since the Preliminary Results and Amended Preliminary Results, see the Issues and Decision Memorandum.3 These final results cover 33 companies.4 Commerce conducted this review in accordance with section 751(a) of the Tariff Act of 1930, as amended (the Act).

    1See Certain Crystalline Silicon Photovoltaic Products from Taiwan: Preliminary Results of Antidumping Duty Administrative Review and Partial Rescission of Antidumping Duty Administrative Review; 2016-2017, 82 FR 60370 (December 20, 2017) (Preliminary Results), and accompanying Preliminary Decision Memorandum (PDM).

    2See Certain Crystalline Silicon Photovoltaic Products from Taiwan: Amended Preliminary Results and Preliminary Determination of No Shipments, 83 FR 3674 (January 26, 2018) (Amended Preliminary Results).

    3See Issues and Decision Memorandum (IDM) dated concurrently with this notice and incorporated herein by reference.

    4 The 33 companies consist of one mandatory respondent, 18 respondents not individually examined, and 14 companies for which we have reached a “no shipments” final finding.

    Commerce exercised its discretion to toll all deadlines affected by the closure of the Federal Government from January 20 through 22, 2018.5 As a result, the revised deadline for the final results of this review was April 23, 2018. On April 5, 2018, Commerce postponed the final results of this review until May 22, 2018.6 On May 21, 2018, Commerce postponed the final results of this review until June 21, 2018.7

    5See Memorandum, “Deadlines Affected by the Shutdown of the Federal Government,” dated January 23, 2018. All deadlines in this segment of the proceeding have been extended by three days.

    6See Memorandum, Certain Crystalline Silicon Photovoltaic Products from Taiwan: Extension of Deadline for Final Results of Antidumping Duty Administrative Review,” dated April 5, 2018.

    7See Memorandum, Certain Crystalline Silicon Photovoltaic Products from Taiwan: Second Extension of Deadline for Final Results of Antidumping Duty Administrative Review,” dated May 21, 2018.

    Scope of the Order

    The merchandise covered by this order is crystalline silicon photovoltaic cells, and modules, laminates and/or panels consisting of crystalline silicon photovoltaic cells, whether or not partially or fully assembled into other products, including building integrated materials. Merchandise covered by this order is currently classified in the Harmonized Tariff Schedule of the United States (HTSUS) under subheadings 8501.61.0000, 8507.20.8030, 8507.20.8040, 8507.20.8060, 8507.20.8090, 8541.40.6020, 8541.40.6030 and 8501.31.8000. These HTSUS subheadings are provided for convenience and customs purposes; the written description of the scope is dispositive.

    For a complete description of the scope of the order, see the Issues and Decision Memorandum.

    Analysis of Comments Received

    All issues raised in the case and rebuttal briefs filed by parties in this review are addressed in the Issues and Decision Memorandum, which is hereby adopted with this notice. A list of the issues which parties raised, and to which we responded in the Issues and Decision Memorandum, can be found in the Appendix to this notice. The Issues and Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at https://access.trade.gov and is available to all parties in the Central Records Unit, room B8024 of the main Department of Commerce building. In addition, a complete version of the Issues and Decision Memorandum can be accessed directly on the internet at http://enforcement.trade.gov/frn/index.html. The signed Issues and Decision Memorandum and the electronic version of the Issues and Decision Memorandum are identical in content.

    Changes Since the Preliminary Results

    Based on our analysis of the comments received, we made certain changes to the Preliminary Results. Specifically, we have determined to base Motech Industries, Inc. (Motech)'s cost of production on the unadjusted cost of production in its books and records, and we have excluded sales to one U.S. customer from the margin calculation, due to the lack of substantial evidence on the record that the sales were made to customers in the United States. For a full discussion of these changes, see the Issues and Decision Memorandum.

    Final Determination of No Shipments

    In the Amended Preliminary Results, Commerce preliminarily determined that 14 companies had no shipments during the POR.8 These companies are: Boviet Solar Technology Co., Ltd., Baoding Jiasheng Photovoltaic Technology Co., Ltd., Baoding Tianwei Yingli New Energy Resources Co., Ltd., Beijing Tianneng Yingli New Energy Resources Co., Ltd., E-TON Solar Tech. Co., Ltd., Hainan Yingli New Energy Resources Co., Ltd., Hengshui Yingli New Energy Resources Co., Ltd., Inventec Energy Corporation, Lixian Yingli New Energy Resources Co., Ltd., Shenzhen Yingli New Energy Resources Co., Ltd., Sunengine Corporation Ltd., Tianjin Yingli New Energy Resources Co., Ltd., Yingli Energy (China) Co., Ltd., and Yingli Green Energy International Trading Company Limited.

    8See Amended Preliminary Results, 83 FR at 3674.

    Following publication of the Amended Preliminary Results, Commerce issued a no-shipment inquiry to U.S. Customs and Border Protection (CBP), and received a response to this inquiry from CBP.9 We received one comment from interested parties regarding these companies, from Inventec Solar Energy Corporation and its affiliates, Inventec Energy Corporation and E-TON Solar Tech. Co., Ltd., which confirmed Commerce's preliminary finding that Inventec Solar Energy Corporation had shipments, but that E-TON Solar Tech. Co., Ltd., and Inventec Energy Corporation did not have shipments.

    9See Memorandum, “Response by U.S. Customs and Border Protection to Commerce's No Shipments Inquiry,” dated February 21, 2018.

    Because the record contains no evidence to the contrary, we continue to find that these 14 companies made no shipments during the POR. Accordingly, consistent with Commerce's practice, we will instruct CBP to liquidate any existing entries of merchandise produced by these 14 companies, but exported by other parties, at the rate for the intermediate reseller, if available, or at the all-others rate.10

    10See, e.g., Magnesium Metal from the Russian Federation: Preliminary Results of Antidumping Duty Administrative Review, 75 FR 26922, 26923 (May 13, 2010), unchanged in Magnesium Metal from the Russian Federation: Final Results of Antidumping Duty Administrative Review, 75 FR 56989 (September 17, 2010).

    Rate for Non-Examined Companies

    The statute and Commerce's regulations do not address the establishment of a rate to be applied to companies not selected for examination when Commerce limits its examination in an administrative review pursuant to section 777A(c)(2) of the Act. Generally, Commerce looks to section 735(c)(5) of the Act, which provides instructions for calculating the all-others rate in a market economy investigation, for guidance when calculating the rate for companies which were not selected for individual review in an administrative review. Under section 735(c)(5)(A) of the Act, the all-others rate is normally “an amount equal to the weighted average of the estimated weighted average dumping margins established for exporters and producers individually investigated, excluding any zero or de minimis margins, and any margins determined entirely {on the basis of facts available}.” In this review, we calculated a weighted-average dumping margin for Motech that is not zero, de minimis, or determined entirely on the basis of facts available, and have applied this rate to the non-examined companies.

    Final Results of Review

    Commerce determines that the following weighted-average dumping margins exist for the period February 1, 2016 through January 31, 2017:

    Manufacturer/exporter Weighted-
  • average
  • margin
  • (percent)
  • Motech Industries, Inc 1.33 AU Optronics Corporation 1.33 Canadian Solar Inc 1.33 Canadian Solar International, Ltd 1.33 Canadian Solar Manufacturing (Changshu), Inc 1.33 Canadian Solar Manufacturing (Luoyang), Inc 1.33 Canadian Solar Solution Inc 1.33 EEPV Corp 1.33 Gintech Energy Corporation 1.33 Inventec Solar Energy Corporation 1.33 Kyocera Mexicana S.A. de C.V 1.33 Neo Solar Power Corporation 1.33 Sino-American Silicon Products Inc. and Solartech Energy Corp 1.33 Sunrise Global Solar Energy 1.33 Trina Solar (Schweiz) AG 1.33 Trina Solar (Singapore) Science and Technology Pte Ltd 1.33 TSEC Corporation 1.33 Vina Solar Technology Co., Ltd 1.33 Win Win Precision Technology Co., Ltd 1.33
    Disclosure

    Commerce intends to disclose the calculations performed for these final results of review within five days of the date of publication of this notice in the Federal Register, in accordance with 19 CFR 351.224(b).

    Duty Assessment

    Pursuant to section 751(a)(2)(C) of the Act and 19 CFR 351.212(b), Commerce shall determine, and CBP shall assess, antidumping duties on all appropriate entries of subject merchandise in accordance with the final results of this review.11 Commerce intends to issue assessment instructions to CBP 15 days after the date of publication of the final results of this administrative review in the Federal Register.

    11 In these final results, Commerce applied the assessment rate calculation method adopted in Antidumping Proceedings: Calculation of the Weighted-Average Dumping Margin and Assessment Rate in Certain Antidumping Proceedings; Final Modification, 77 FR 8101 (February 14, 2012).

    Commerce calculated a weighted-average dumping margin by dividing the total amount of dumping for reviewed sales to that party by the total sales quantity associated with those transactions, and Commerce will direct CBP to assess importer- (or customer-) specific assessment rates based on the resulting per-unit rates.12 Where an importer- (or customer-) specific ad valorem or per-unit rate is greater than de minimis (i.e., 0.50 percent), Commerce will instruct CBP to collect the appropriate duties at the time of liquidation.13 Where an importer- (or customer-) specific ad valorem or per-unit rate is zero or de minimis, Commerce will instruct CBP to liquidate appropriate entries without regard to antidumping duties.14

    12Id.

    13Id.

    14See 19 CFR 351.106(c)(2).

    For the companies which were not selected for individual review, we will assign an assessment rate based on the methodology described in the “Rates for Non-Examined Companies” section, above.

    Consistent with Commerce's assessment practice, for entries of subject merchandise during the POR produced by Motech, or the non-examined companies, for which the producer did not know that its merchandise was destined for the United States, we will instruct CBP to liquidate unreviewed entries at the all-others rate if there is no rate for the intermediate company(ies) involved in the transaction.15

    15 For a full discussion of this practice, see Antidumping and Countervailing Duty Proceedings: Assessment of Antidumping Duties, 68 FR 23954 (May 6, 2003).

    As noted in the “Final Determination of No Shipments” section, above, Commerce will instruct CBP to liquidate any existing entries of merchandise produced by the “no shipment” companies, but exported by other parties, at the rate for the intermediate reseller, if available, or at the all-others rate.

    Cash Deposit Requirements

    The following cash deposit requirements will be effective for all shipments of subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of this administrative review, as provided for by section 751(a)(2)(C) of the Act: (1) The cash deposit rates for the companies listed in these final results will be equal to the weighted-average dumping margins established in the final results of this review; (2) for merchandise exported by producers or exporters not covered in this review but covered in a prior segment of this proceeding, the cash deposit rate will continue to be the company-specific rate published for the most recently completed segment in which the company was reviewed; (3) if the exporter is not a firm covered in this review or the original less-than-fair-value (LTFV) investigation, but the producer is, the cash deposit rate will be the rate established for the most recently completed segment of this proceeding for the producer of the subject merchandise; and (4) the cash deposit rate for all other producers or exporters will continue to be 19.50 percent,16 the all-others rate established in the LTFV investigation. These cash deposit requirements, when imposed, shall remain in effect until further notice.

    16See Certain Crystalline Silicon Photovoltaic Products: Final Determination of Sales at Less Than Fair Value, 79 FR 76966 (December 23, 2014).

    Notification to Importers Regarding the Reimbursement of Duties

    This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this POR. Failure to comply with this requirement could result in Commerce's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.

    Notification to Interested Parties Regarding Administrative Protective Order

    This notice also serves as the only reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3), which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.

    We are issuing and publishing this notice in accordance with sections 751(a)(1) and 777(i)(1) of the Act, and 19 CFR 351.213(h) and 351.221(b)(5).

    Dated: June 21, 2018. Gary Taverman, Deputy Assistance Secretary for Antidumping and Countervailing Duty Operations, performing the non-exclusive functions and duties of the Assistant Secretary for Enforcement and Compliance. Appendix—List of Topics Discussed in the Issues and Decision Memorandum I. Summary II. List of Issues III. Background IV. Scope of the Order V. Discussion of the Issues Comment 1: Whether Motech Had Actual or Constructive Knowledge of U.S. Sales to a Specific U.S. Customer. Comment 2: Whether Motech's Contract Numbers Should be Made Public for Purposes of Liquidating Entries Comment 3: Correction of a Cell Reference in the Preliminary Cost Calculations Comment 4: Whether Commerce Should Assign Cell Grades to Prime and Non-Prime Categories for Normal Value Calculation and Model Matching Comment 5: Whether the Draft Liquidation Instructions Properly Reference the “All Others” Rate Comment 6: Whether the Motech Liquidation Instructions Instruct CBP to Liquidate Exports by Trina Schweiz and Trina Singapore at the “All Others” Rate VI. Recommendation
    [FR Doc. 2018-13858 Filed 6-27-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE National Institute of Standards and Technology National Conference on Weights and Measures 103rd Annual Meeting AGENCY:

    National Institute of Standards and Technology, Commerce.

    ACTION:

    Notice.

    SUMMARY:

    The 103rd Annual Meeting of the National Conference on Weights and Measures (NCWM) will be held in Tulsa, Oklahoma, from Sunday, July 15, 2018, through Thursday, July 19, 2018. This notice contains information about significant items on the NCWM Committee agendas but does not include all agenda items. As a result, the items are not consecutively numbered.

    DATES:

    The meeting will be held on Sunday, July 15, 2018, through Wednesday, July 18, 2018, from 8:00 a.m. to 5:00 p.m. Central Time, and on Thursday, July 19, 2018, from 9:00 a.m. to 12:00 p.m. Central Time. The meeting schedule is available at www.ncwm.net.

    ADDRESSES:

    This meeting will be held at the Hyatt Regency Tulsa Hotel, 100 East 2nd Street, Tulsa, Oklahoma 74103.

    FOR FURTHER INFORMATION CONTACT:

    Dr. Douglas Olson, NIST, Office of Weights and Measures, 100 Bureau Drive, Stop 2600, Gaithersburg, MD 20899-2600. You may also contact Dr. Olson at (301) 975-2956 or by email at [email protected]. The meeting is open to the public, but a paid registration is required. Please see the NCWM website (www.ncwm.net) to view the meeting agendas, registration forms, and hotel reservation information.

    SUPPLEMENTARY INFORMATION:

    Publication of this notice on the NCWM's behalf is undertaken as a public service; NIST does not endorse, approve, or recommend any of the proposals or other information contained in this notice or in publications produced by the NCWM.

    The NCWM is an organization of weights and measures officials of the states, counties, and cities of the United States, and representatives from the private sector and federal agencies. These meetings bring together government officials and representatives of business, industry, trade associations, and consumer organizations on subjects related to the field of weights and measures technology, administration, and enforcement. NIST participates to encourage cooperation between federal agencies and the states in the development of legal metrology requirements. NIST also promotes uniformity in state laws, regulations, and testing procedures used in the regulatory control of commercial weighing and measuring devices, packaged goods, and for other trade and commerce issues.

    The NCWM has established multiple committees, task groups, and other working bodies to address legal metrology issues of interest to regulatory officials, industry, consumers, and others. The following are brief descriptions of some of the significant agenda items that will be considered by some of the NCWM Committees at the NCWM Annual Meeting. Comments will be taken on these and other issues during public comment sessions. This meeting also includes work sessions in which the Committees may also accept comments for clarification on issues, and where they will finalize recommendations for possible adoption at this meeting. The Committees may also withdraw or carry over items that need additional development.

    These notices are intended to make interested parties aware of these development projects and to make them aware that reports on the status of the project will be given at the Annual Meeting. The notices are also presented to invite the participation of manufacturers, experts, consumers, users, and others who may be interested in these efforts.

    The Specifications and Tolerances Committee (S&T Committee) will consider proposed amendments to NIST Handbook 44, “Specifications, Tolerances, and other Technical Requirements for Weighing and Measuring Devices.” Those items address weighing and measuring devices used in commercial applications, that is, devices used to buy from or sell to the public or used for determining the quantity of products or services sold among businesses. Issues on the agenda of the NCWM Laws and Regulations Committee (L&R Committee) relate to proposals to amend NIST Handbook 130, “Uniform Laws and Regulations in the Areas of Legal Metrology and Engine Fuel Quality” and NIST Handbook 133, “Checking the Net Contents of Packaged Goods.”

    NCWM S&T Committee

    The following items are proposals to amend NIST Handbook 44:

    SCL—Scales Item SCL-6 S.1.2.2.3. Deactivation of a “d” Resolution

    In 2017, the NCWM adopted a proposal requiring the value of the scale division (d) and verification scale interval (e) to be equal on Class I and Class II scales installed into commercial service as of January 1, 2020, when used in a direct sale application (i.e., both parties of a weighing transaction are present when the quantity is determined). The S&T Committee will now consider a new proposal, if adopted, would prohibit the deactivation of a “d” resolution on a Class I or II scale equipped with a value of “d” that differs from “e” if by such action it causes the scale to round improperly.

    Item SCL-7 S.1.8.5. Recorded Representations, Point of Sale Systems

    The S&T Committee will consider a proposal requiring additional sales information to be recorded by cash registers interfaced with a weighing element for items weighed at a checkout stand. These systems are currently required to record the net weight, unit price, total price, and the product class, or in a system equipped with price look-up capability, the product name or code number. The change proposed would add “tare weight” to the list of sales information currently required. This change has been proposed as a nonretroactive requirement with an enforcement date of January 1, 2022, which means if the proposal is adopted, the additional information (i.e., the tare weight) would be required to appear on the sales receipt for items weighed at a checkout stand (Point of Sale Systems) on equipment installed into commercial service as of January 1, 2022. This proposed change would not affect equipment already in service.

    Item SCL-8 Sections Throughout the Code To Include Provisions for Commercial Weigh-In-Motion Vehicle Scale Systems

    The S&T Committee will consider a proposal drafted by the NCWM's Weigh-In-Motion (WIM) Task Group (TG) to amend various sections of the NIST Handbook 44, Scales Code to address WIM vehicle scale systems used for commercial application to determine a vehicle's total weight. The TG is made up of representatives of WIM equipment manufacturers, the U.S. Department of Transportation Federal Highway Administration, NIST Office of Weights and Measures, truck weight enforcement agencies, state weights and measures agencies, and others.

    The WIM TG was first formed in February 2016 to consider a proposal to expand the NIST Handbook 44, Weigh-In-Motion Systems Used for Vehicle Enforcement Screening—Tentative Code to also apply to legal-for-trade (commercial) and law enforcement applications. Members of the TG agreed during their first face-to-face meeting at the 2016 NCWM Annual Meeting to eliminate from the proposal any mention of a law enforcement application and focus solely on WIM vehicle scale systems intended for use in commercial applications. Members of the TG later agreed that commercial application WIM vehicle scale systems should be addressed by the Scales Code of NIST Handbook 44, rather than the Weigh-In-Motion Systems Used for Vehicle Enforcement Screening—Tentative Code.

    A focus of the TG since July 2016 has been to concentrate on the development of test procedures that can be used to verify the accuracy of a WIM vehicle scale system given a proposed maintenance and acceptance tolerances of 0.2 percent and 0.1 percent, respectively, of the test loads applied during testing and considering the many different axle configurations of vehicles that will typically be weighed by these systems. Although members of the TG have not been able to reach agreement on appropriate test procedures, the TG recommended and the Committee agreed, at the 2018 NCWM Interim Meeting, to elevate the status of this item to “Voting” for the upcoming 2018 NCWM Annual Meeting.

    Block 1 (B1) Items Manifold Flush Systems B1: Gen-2 Withdrawn G-S.2. Facilitation of Fraud [General Code] B1: VTM-1 V S.3. Diversion of Measured Liquid and UR.2.6. Clearing the Discharge Hose [Vehicle Tank Meters]

    The S&T Committee will consider a proposal that would permit the installation and use of a “manifold flush system,” which is intended to provide a safer means of flushing the different products from the delivery systems of vehicles equipped with multiple product storage compartments used commercially to deliver different products through a single vehicle-tank meter and discharge hose. This “flushing of product” is necessary when switching between the different products stored on and delivered from the same truck to lessen the amount of contamination of product delivered into a customer's storage vessel.

    Flushing of product normally requires the delivery vehicle's operator to climb on top of the delivery truck with discharge hose and nozzle in hand to discharge product back into the appropriate storage compartment (after opening its hatch), clearing the lines for the next product to be delivered.

    The manifold flush system makes possible flushing of the system at ground level, but its installation currently violates existing NIST Handbook 44 Vehicle Tank Meters (VTM) code paragraph S.3.1. Diversion of Measured Liquid by providing a means in which measured liquids can be easily diverted from the discharge line back into a product storage compartment. This diversion of metered product back into storage is considered by many to facilitate the perpetration of fraud.

    The proposal exempts all metering systems with multiple compartments delivering multiple products through a single discharge hose from having to comply with VTM code paragraph S.3.1. and requires a means for clearing the discharge hose be provided for metering systems with multiple compartments delivering multiple products through a single discharge hose. It also allows for the installation of a manifold flush system and specifies various conditions that must be met for this flushing system to be considered acceptable.

    The proposal also requires device users, who have the need to flush a discharge hose to keep a 12-month record of the different flushing operations to include dates, times, original product, new product, and gallons dispensed to avoid contamination.

    Block 4 (B4), Items Terminology for Testing Standards and Block 5, Items (B5) Define “Field Reference Standard”

    Block 4 (B4) Items and Block 5 (B5) Items include all the following items:

    B4: Item SCL-4 N.2. Verification (Testing) Standards [Scales Code] B4: Item ABW-1 N.2. Verification (Testing) Standards [Automatic Bulk Weighing Systems] B4: Item AWS-1 N.1.3. Verification (Testing) Standards, N.3.1. Official Tests; UR.4. Testing Standards [Automatic Weighing Systems] B4: Item CLM-1 N.3.2. Transfer Standard Test; T.3. On Tests Using Transfer Standards [Cryogenic Liquid-Measuring Devices] B4: Item CDL-1 N.3.2. Transfer Standard Test; T.3. On Tests Using Transfer Standards [Carbon Dioxide Liquid-Measuring Devices] B4: Item HGM-1 N.4.1. Master Meter (Transfer) Standard Test; T.4. Tolerance Application on Test Using Transfer Standard Test Method [Hydrogen Gas-Metering Devices] B4: Item GGM-1 Section 5.56.(a) [Grain-Moisture Meters “a”] N.1.1. Air Oven Reference Method Transfer Standards, N.1.3. Meter to Like-Type Meer Method Transfer Standards, and Section 5.56.(b) [Grain-Moisture Meters “b”] N.1.1. Transfer Standards, T. Tolerances B4: Item LVS-1 N.2. Testing Standards [Electronic Livestock, Meat, and Poultry Evaluation Systems and/or Devices] B4: Item OTH-2 Appendix A—Fundamental Considerations, 3.2. Tolerances for Standards; 3.3. Accuracy of Standards B4: Item OTH-3 Appendix D—Definitions: Fifth-wheel, official grain samples, transfer standard; standard, field B5: Item CLM-2 N.3.2. Transfer Standard Test; T.3. On Tests Using Transfer Standards [Cryogenic Liquid-Measuring Devices] B5: Item CDL-2 N.3.2. Transfer Standard Test; T.3. On Tests Using Transfer Standards [Carbon Dioxide Liquid-Measuring Devices] B5: Item HGM-2 N.4.1. Master Meter (Transfer) Standard Test; T.4. Tolerance Application on Test Using Transfer Standard Test Method [Hydrogen Gas Metering-Systems] B5: Item OTH-4 Appendix D—Definitions: Field Reference, Standard Meter; Transfer Standard

    Block 4 and Block 5 items are considered related agenda items. The items in these two blocks are currently assigned a developing status and while the S&T Committee may not take comments on these items at the 2018 NCWM Annual Meeting, interested parties may wish to monitor the future progress of their continued development. These two groups of items are intended to: (1) Make clear the qualifying conditions in which a standard intended for use in testing (i.e., evaluating the performance of) a commercial weighing or measuring device or system can be used to conduct an official test; and (2) harmonize the terminology used to identify a suitable test standard in each of the Handbook 44 codes.

    NCWM L&R Committee

    The following items are proposals to amend NIST Handbook 130 or NIST Handbook 133:

    NIST Handbook 130—Section on Uniform Regulation for the Method of Sale (MOS) of Commodities Item MOS-10 2.XX. Pet Treats or Chews

    The L&R Committee is recommending adoption of a uniform method of sale for Pet Treats or Chews. If adopted, the proposal will require sellers to follow labeling guidance under the Food and Drug Administration and 21 CFR 501, which defines these types of products as “shall be sold by weight.” This will also allow consumers to make a value comparison for similar like items.

    NIST Handbook 133 Item NET-4 4.XX. Plywood and Wood-Based Structural Panels

    There is no current test procedure in NIST Handbook 133, for Plywood and Wood-based Structural Panels. This will provide a test procedure for Plywood and Wood-Based Structural Panels. The L&R Committee is recommending further comment and consideration to add a testing procedure to NIST Handbook 133. This procedure follows good measuring practices for products sold by linear measure.

    Authority:

    15 U.S.C. 272(b).

    Kevin A. Kimball, Chief of Staff.
    [FR Doc. 2018-13935 Filed 6-27-18; 8:45 am] BILLING CODE 3510-13-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XF870 Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Service Pier Extension Project on Naval Base Kitsap Bangor, Washington 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 United States Department of the Navy (Navy) to incidentally harass, by Level A and Level B harassment, marine mammals during construction activities associated with the Service Pier Extension (SPE) project at Naval Base Kitsap Bangor, Washington.

    DATES:

    This Authorization is effective from July 16, 2019 through July 15, 2020.

    FOR FURTHER INFORMATION CONTACT:

    Rob Pauline, Office of Protected Resources, NMFS, (301) 427-8401. Electronic copies of the application 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, 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).

    Summary of Request

    On August 9, 2017, NMFS received a request from the Navy for an IHA to take marine mammals incidental to pile driving and removal associated with planned construction of the SPE on Naval Base Kitsap Bangor, Washington. The application was deemed adequate and complete by NMFS on November 15, 2017.

    The Navy's request is for take by Level B harassment of four marine mammal species and Level A and Level B harassment of one species. Neither the Navy nor NMFS expect serious injury or immortality to result from this activity and, therefore, an IHA is appropriate.

    Description of Planned Activity Overview

    The Navy is planning to extend the service pier to provide additional berthing capacity and improve associated facilities for existing homeported and visiting submarines at Naval Base Kitsap Bangor. The project includes impact and vibratory pile driving and vibratory pile removal. Sounds resulting from pile driving and removal may result in the incidental take of marine mammals by Level A and Level B harassment in the form of auditory injury or behavioral harassment. Naval Base Kitsap Bangor is located on Hood Canal approximately 20 miles (32 kilometers) west of Seattle, Washington. The in-water construction period for the planned action will occur over 12 months. The issued IHA would be effective from July 16, 2019 through July 15, 2020 and cover two in-water work windows. A detailed description of the planned SPE project is provided in the Federal Register notice for the proposed IHA (83 FR 10689; March 12, 2018). Since that time, no changes have been made to the planned pile driving and removal 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 Navy was published in the Federal Register on March 12, 2018 (83 FR 10689). That notice described, in detail, the Navy's 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, Whale and Dolphin Conservation (WDC), and private citizens.

    Comment: The Commission commented that the method NMFS used to estimate the numbers of takes during the proposed activities, which summed fractions of takes for each species across project days, does not account for and negates the intent of NMFS's 24-hour reset policy. The Commission understands that NMFS has developed rounding criteria and recommends that it be shared with the Commission.

    Response: NMFS will share the rounding criteria with the Commission following the completion of internal review and looks forward to discussing the issue with them in the future.

    Comment: The Commission requested clarification of certain issues associated with NMFS's notice that one-year renewals could be issued in certain limited circumstances and expressed concern that the renewal process, as proposed, would bypass the public notice and comment requirements. The Commission also suggested that NMFS should discuss the possibility of renewals through a more general route, such as a rulemaking, instead of notice in a specific authorization. The Commission further recommended that if NMFS did not pursue a more general route, that the agency provide the Commission and the public with a legal analysis supporting our conclusion that this process is consistent with the requirements of section 101(a)(5)(D) of the MMPA.

    Response: The process of issuing a renewal IHA does not bypass the public notice and comment requirements of the MMPA. The notice of the proposed IHA expressly notifies the public that under certain, limited conditions an applicant could seek a renewal IHA for an additional year. The notice describes the conditions under which such a renewal request could be considered and expressly seeks public comment in the event such a renewal is sought. Importantly, such renewals would be limited to where the activities are identical or nearly identical to those analyzed in the proposed IHA, monitoring does not indicate impacts that were not previously analyzed and authorized, and the mitigation and monitoring requirements remain the same, all of which allow the public to comment on the appropriateness and effects of a renewal at the same time the public provides comments on the initial IHA. NMFS has, however, modified the language for future proposed IHAs to clarify that all IHAs, including renewal IHAs, are valid for no more than one year and that the agency would consider only one renewal for a project at this time. In addition, notice of issuance or denial of a renewal IHA would be published in the Federal Register, as are all IHAs. Last, NMFS will publish on our website a description of the renewal process before any renewal is issued utilizing the new process.

    Comment: The Commission supports NMFS's use of the updated permanent threshold shift (PTS) thresholds and associated weighting functions that are used to estimate the Level A harassment zones. However, it feels there are some shortcomings that need to be addressed regarding the methodology for determining the extent of the Level A harassment zones based on the associated PTS cumulative sound exposure level (SELcum) thresholds for the various types of sound sources, including stationary sound sources. The Commission does not question the Level A harassment thresholds themselves, but rather the manner in which the PTS SELcum thresholds are currently implemented. The Level A and B harassment zones do not make sense biologically or acoustically due to NMFS's unrealistic assumption that the animals remain stationary throughout the entire day of the activity. The Commission believes that it would be prudent for NMFS to consult with scientists and acousticians to determine the appropriate accumulation time that action proponents should use to determine the extent of the Level A harassment zones based on the associated PTS SELcum thresholds in such situations.

    Response: During the 2016 Technical Guidance's recent review, in accordance with E.O. 13795, NMFS received comments from multiple Federal agencies, including the Commission, recommending the establishment a working group to investigate more realistic means of approximating the accumulation period associated with sound exposure beyond the default 24-h accumulation period. Based on these comments, NMFS will be convening a working group to re-evaluate implementation of the default 24-h accumulation period and investigate means for deriving more realistic accumulation periods.

    Comment: The Commission recommended that NMFS encourage the Navy to reduce the sizes of its shutdown zones to ensure both that pinnipeds are sufficiently protected from Level A harassment and that the activities can be completed in an appropriate manner and within an appropriate timeframe.

    Response: NMFS consulted with the Navy who concurred that a reduction in zone sizes were appropriate. Additional details may be found in the Mitigation section of this notice.

    Comment: The WDC recommended that lead observers should be familiar with, or adequately trained on, the differences in appearance between southern resident and transient killer whales and be able to immediately report the presence of southern resident orcas should they enter or approach Hood Canal.

    Response: The Navy reports that qualified monitors would be familiar with differences in appearance between resident and transient killer whales.

    Comment: The WDC recommended that the Navy install a hydroacoustic system to detect the presence of marine mammals at or near the entrance to Hood Canal, in order to monitor for southern resident killer whales, which tend to be more vocally active than transient killer whales.

    Response: NMFS does not believe that a hydroacoustic system is necessary since southern resident killer whales have not occurred in Hood Canal. Additionally, due to the use of Orca network, marine mammal monitoring measures, and the high amount of attention that Southern resident killer whale movements receive, NMFS is confident that the Navy will be able to detect southern resident killer whale presence near the Hood Canal Bridge.

    Comment: A comment from the public stated that there is not enough scientific data available on hearing impairment in marine mammals resulting from the proposed activities to make any type of determination. They also felt that there is a lack of scientific understanding of the potential effects of the project on the species in the surrounding area and that too many assumptions were made by NMFS in the analysis.

    Response: The Potential Impacts section of the notice of proposed IHA (83 FR 10689; March 12, 2018) described numerous studies that have examined the effects of underwater sound on marine mammal, as well as those in the Technical Guidance that was directly used to assess noise-induced hearing loss. While not all marine mammal species have been subject to studies examining hearing and impacts of noise on hearing, enough data has been collected to identify specific marine mammal hearing groups as not all marine mammals have equal hearing capabilities or susceptibility to noise-induced hearing loss. Current hearing data (collected via direct behavioral and electrophysiological measurements) and predictions (based on inner ear morphology, modeling, behavior, vocalizations, or taxonomy) allow for individual species to be placed in specific hearing groups and develop composite audiograms for each hearing group. From composite audiograms, weighting functions associated with each hearing group, along with data on noise-induced hearing loss (i.e., acoustic thresholds), can be applied to predict the exposures at which animals could suffer permanent hearing impairment.

    NMFS uses the best available science to make determinations on the potential impacts of underwater noise on marine mammals. When specific data on a given topic or variable is not available, NMFS must make assumptions in order to conduct an analysis. In many instances, such assumptions are based on scenarios or conditions that existed at locations where NMFS had previously issued incidental take authorizations.

    Comment: A private citizen comment noted NMFS fails to specify the use of a hydraulic or an electrical hammer during pile driving, and that the determination, or meaningful “assumptions,” of how significantly marine mammals will be affected by frequency and amplitude cannot be successful if the variation between the two hammering techniques is not taken into account. NMFS also did not define or have set criteria for the term problematic geotechnical conditions.

    Response: NMFS is unaware of any data indicating a difference in frequency and/or amplitude between hydraulic and electric hammers during pile driving. Problematic geotechnical conditions refers to any situation in which the use of a vibratory driver is insufficient to drive a pile to its required depth.

    Description of Marine Mammals in the Area of Specified Activities

    Sections 3 and 4 of the application summarize available information regarding status and trends, distribution and habitat preferences, and behavior and life history, of the potentially affected species. Additional information regarding population trends and threats may be found in NMFS's Stock Assessment Reports (SAR; www.nmfs.noaa.gov/pr/sars/) and more general information about these species (e.g., physical and behavioral descriptions) may be found on NMFS's website (www.nmfs.noaa.gov/pr/species/mammals/).

    Table 1 lists all species with expected potential for occurrence in Hood Canal and summarizes information related to the population or stock, including regulatory status under the MMPA and ESA and potential biological removal (PBR), where known. An expected potential was defined as species with any regular occurrence in Hood Canal since 1995. Note that while not observed on a consistent basis, west coast transient killer whales have been recorded intermittently in Hood Canal with the most recent sightings occurring in 2016 as described below. They have also been recorded remaining in the area for extended periods. As such, they have been listed as one of the species for which authorized take has been requested. For taxonomy, we follow Committee on Taxonomy (2017). PBR is defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population (as described in NMFS's SARs). While no mortality is anticipated or authorized here, PBR and annual serious injury and mortality from anthropogenic sources are included here as gross indicators of the status of the species and other threats.

    Marine mammal abundance estimates presented in this document represent the total number of individuals that make up a given stock or the total number estimated within a particular study or survey area. All managed stocks in this region are assessed in NMFS's U.S. Pacific Marine Mammal SARs (Carretta et al., 2016) or Alaska Marine Mammal SARs (Muto et al., 2016). All values presented in Table 1 are the most recent available at the time of publication and are available in the 2016 SARs (Carretta et al., 2016, Muto et al., 2016) (available online at: http://www.nmfs.noaa.gov/pr/sars/species.htm).

    Table 1—Species Authorized for Take Species 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 Odontoceti (toothed whales, dolphins, and porpoises) Family Delphinidae Killer whale Orcinus orca West coast transient -; N 243 (n/a; 243, 2009) 4 2.4 0 Family Phocoenidae (porpoises) Harbor porpoise Phocoena phocoena vomerina Washington inland waters -; N 11,233 (0.37; 8,308; 2015) 66 ≥7.2 Order Carnivora—Superfamily Pinnipedia Family Otariidae (eared seals and sea lions) California sea lion Zalophus californianus U.S. -; N 296,750 (n/a; 153,337; 2011) 9,200 389 Steller sea lion Eumetopias jubatus monteriensis Eastern U.S. -; N 41,638 (n/a; 41,638; 2015) 2,498 108 Family Phocidae (earless seals) Harbor seal Phoca vitulina richardii Hood Canal -; N 1,088 (0.15; unk; 1999) 4 unk 0.2 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 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. 4 Abundance estimates for these stocks are greater than eight years old and are therefore not considered current. PBR is considered undetermined for these stocks, as there is no current minimum abundance estimate for use in calculation. We nevertheless present the most recent abundance estimates, as these represent the best available information for use in this document.

    A detailed description of the of the species likely to be affected by the SPE 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 (83 FR 10689; March 12, 2018); 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. Please refer to that Federal Register notice for these 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 and removal activities for the SPE project have the potential to result in behavioral harassment of marine mammals in the vicinity of the action area. The Federal Register notice for the proposed IHA (83 FR 10689; March 12, 2018) included a discussion of the effects of anthropogenic noise on marine mammals. The project would not result in permanent impacts to habitats used directly by marine mammals, such as haulout sites, but may have potential short-term impacts to food sources such as forage fish and minor impacts to the immediate substrate during installation and removal of piles during the SPE project. These potential effects are discussed in detail in the Federal Register notice for the proposed IHA (83 FR 10689; March 12, 2018) therefore that information is not repeated here; please refer to that Federal Register notice for that information.

    Estimated Take

    This section provides an estimate of the number of incidental takes authorization through this IHA, which informs both NMFS' 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 primarily be by Level B harassment, as pile driving has the potential to result in disruption of behavioral patterns for individual marine mammals. There is also some potential for auditory injury (Level A harassment) to result for the harbor seal, due to larger predicted auditory injury zones and regular presence around the waterfront area. Auditory injury is unlikely to occur for mid-frequency cetaceans, high frequency cetaceans or otariid species due to small predicted zones. The planned mitigation and monitoring measures are expected to minimize the severity of such taking to the extent practicable.

    As described previously, no serious injury or 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 permanent 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 authorized take estimate.

    Acoustic Thresholds

    NMFS uses 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—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). 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 affected 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) and above 160 dB re 1 μPa (rms) for non-explosive impulsive (e.g., impact pile driving).

    Level A harassment—NMFS' Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing (Technical Guidance, 2016) 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). The Navy's planned activity includes the use of impulsive (impact pile driving) and non-impulsive (vibratory pile driving and extraction) 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. 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.

    EN28JN18.000 Ensonified Area

    Here, we describe operational and environmental parameters of the activity that will feed into identifying the area ensonified above the acoustic thresholds.

    Pile driving will generate underwater noise that potentially could result in disturbance to marine mammals swimming by the project area. Transmission loss (TL) underwater is the decrease in acoustic intensity as an acoustic pressure wave propagates out from a source until the source becomes indistinguishable from ambient sound. TL parameters vary with frequency, temperature, sea conditions, current, source and receiver depth, water depth, water chemistry, and bottom composition and topography. A standard sound propagation model, the Practical Spreading Loss model, was used to estimate the range from pile driving activity to various expected SPLs at potential project structures. This model follows a geometric propagation loss based on the distance from the driven pile, resulting in a 4.5 dB reduction in level for each doubling of distance from the source. In this model, the SPL at some distance away from the source (e.g., driven pile) is governed by a measured source level, minus the TL of the energy as it dissipates with distance. The TL equation is:

    TL = 15log10(R1/R2)

    Where TL is the transmission loss in dB, R 1 is the distance of the modeled SPL from the driven pile, and R 2 is the distance from the driven pile of the initial measurement.

    The degree to which underwater noise propagates away from a noise source is dependent on a variety of factors, most notably by the water bathymetry and presence or absence of reflective or absorptive conditions including the sea surface and sediment type. The TL model described above was used to calculate the expected noise propagation from both impact and vibratory pile driving, using representative source levels to estimate the zone of influence (ZOI) or area exceeding the noise criteria.

    Source Levels

    For the analyses that follow, the TL model described above was used to calculate the expected noise propagation from pile driving, using an appropriate representative source level from Table 3 to estimate the area exceeding the noise criteria. The source levels were derived from the Navy's document titled Proxy source sound levels and potential bubble curtain attenuation for acoustic modeling of nearshore marine pile driving at Navy installations in Puget Sound (Navy 2015). In that document the Navy reviewed relevant data available for various types and sizes of piles typically used for pile driving and recommend proxy source values for Navy installations in Puget Sound. This document may be found as Appendix B in the Navy's application.

    Table 3—Underwater Noise Source Levels Modeled for Impact and Vibratory Pile Driving Pile type Installation method Pile diameter RMS
  • (dB re 1 μPa)
  • Peak
  • (dB re 1 μPa)
  • SEL (dB re 1 μPa 2 sec)
    Timber Vibratory 15-18 in (38-45 cm) 155 1 N/A N/A Concrete Impact 18 in (45 cm) 170 184 159 Steel Impact 24 in (60 cm) 193 210 181 36 (90 cm) 194 211 181 Vibratory 24 (60 cm) 161 N/A N/A 36 (90 cm) 166 N/A N/A 1. Navy opted to use conservative value of 155 dB for project Key: cm = centimeter; dB re 1 μPa = decibels referenced at 1 micropascal; N/A = not applicable; RMS = root mean square; SEL = sound exposure level.

    For vibratory pile driving distances to the PTS thresholds, the TL model described above incorporated the auditory weighting functions for each hearing group using a single frequency as described in the NMFS Optional Spreadsheet (NMFS, 2016b). When NMFS' Technical Guidance (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 may 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. NMFS continues to develop ways to quantitatively refine these tools, and will qualitatively address the output where appropriate. For stationary sources, including pile driving, NMFS User Spreadsheet predicts the closest distance at which a marine mammal, if it remained beyond that distance the whole duration of the activity, would not incur PTS.

    For impact pile driving distances to the cumulative PTS thresholds for 36-inch (90 cm) and 24-inch (60 cm) steel and concrete pile, the TL model described above incorporated frequency weighting adjustments by applying the auditory weighting function over the entire 1-second SEL spectral data sets from impact pile driving. The Navy believes, and NMFS concurs, that this methodology provides a closer estimate than applying the weighting function at a single frequency as suggested in the NMFS Spreadsheet. The NMFS Spreadsheet is considered to be a conservative method that typically results in higher estimates of the PTS onset distance from the pile driving activity. The Navy analysis focused on the data provided from the Naval Kitsap Bangor Test Pile Program (steel piles) and the Puget Sound Naval Shipyard Intermediate Maintenance Facility Pier 6 Fender Pile Replacement Project (concrete piles) (Grebner et al., 2016). This analysis is described in more detail in the Appendix in the application.

    An unconfined bubble curtain will be used during impact driving of steel piles, since the project is located in an area without high currents. While bubble curtain performance is variable, data from the Bangor Naval Base Test Pile Program indicated an average peak SPL reduction of 8 dB to 10 dB at 10 meters was achieved for impact driving of 36- and 48-inch steel pipes (Navy 2015). However, for the SPE project, a reduction of 8 dB was utilized as shown in Table 4.

    Table 4—Inputs for Determining Distances to Cumulative PTS Thresholds 36″ Steel impact 24″ Steel impact 18″ Concrete
  • impact
  • 24″ Steel
  • vibratory
  • 36″ Steel
  • vibratory
  • Timber
    INPUTS Spreadsheet Tab Used (E.1-2) Impact pile driving (E.1-2) Impact pile driving (E.1-2) Impact pile driving (A.1) Vibratory pile driving (A.1) Vibratory pile driving (A.1) Vibratory pile driving. Source Level (Single Strike/shot SEL) 173 dB (assumes 8 dB attenuation) * 173 dB (assumes 8 dB attenuation) * 159 dB Source Level (RMS SPL) 161 dB 166 dB 155 Weighting Factor Adjustment (kHz) ** Weighting override (Grebner et al. 2016) Weighting override (Grebner et al. 2016) Weighting override (Grebner et al. 2016) 2.5 2.5 2.5 Number of strikes per day 1600 1600 1600 Number of piles per day within 24-h period 2 1 3 Duration of sound Production (minutes) 300 300 300 Propagation (xLogR) 15 15 15 15 15 15 Distance of source level measurement (meters) 10 10 10 10 10 10 * 8 dB reduction from use of unconfined bubble curtain during steel pipe impact driving. ** For impact driving, the TL model described above incorporated frequency weighting adjustments by applying the auditory weighting function over the entire 1-second SEL spectral data sets.
    Table 5—Calculated Radial Distances (meters) to Underwater Marine Mammal Impact Pile Driving Noise Thresholds-SELCUM Isopleths 1 Source type Level A isopleths—impact driving 2 Mid-frequency cetaceans High-
  • frequency cetaceans
  • Phocid pinnipeds Otariid pinnipeds
    18-in concrete 3 2 74 19 1 24-in steel 4 5 253 34 2 36-in steel 4 14 740 217 12 Notes: 1 Calculations based on SELCUM threshold criteria shown in Table 4. Calculated values were rounded up the nearest meter. 2 Representative spectra were used to calculate the distances to the injury (PTS onset) thresholds for each functional hearing group for 24-inch and 36-inchsteel pile and 24-inch (60 cm) concrete pile. Distances for 18-inch (45 cm) concrete piles assumed to be the same as 24-inch (60 cm) concrete piles. 3 No bubble curtain planned for concrete pile. 4 Bubble curtain will be used for 24-inch (60 cm) and 36-inch (90 cm) steel piles, and calculations include 8 dB attenuation
    Table 6—Calculated Radial Distances (meters) to Level A Underwater Marine Mammal Vibratory Pile Driving Noise Isopleths Source type Level A isopleths—vibratory driving 1 Mid-frequency cetaceans High-
  • frequency cetaceans
  • Phocid pinnipeds Otariid pinnipeds
    15-18-in timber <1 12 5 <1 24-in steel 2 30 12 1 36-in steel 4 64 26 1.8 Notes: 1 Distances to the injury (PTS onset) thresholds calculated using National Marine Fisheries Service calculator with default Weighting Factor Adjustment of 2.5 (NMFS, 2016b). Calculated values were rounded up the nearest meter.

    Tables 5 and 6 show the radial distances to impact and vibratory Level A isopleths. Based on the dual criteria provided in the NMFS Spreadsheet, the cumulative SEL was selected over peak threshold to calculate injury thresholds because the ensonified distances were larger.

    Using the same source level and transmission loss inputs discussed above the Level B isopleths were calculated for impact and vibratory driving (Table 7). Note that these attenuation distances are based on sound characteristics in open water. The actual attenuation distances are constrained by numerous land features and islands; these actual distances are reflected in the ensonified areas given below.

    Table 7—Level B Impact and Vibratory Pile Driving Exposure Distances and Ensonified Areas Pile type Attenuation distance Area * Impact (160 dB) 18-in concrete 46 m 6.64 m2. 24-in steel 464 m 0.62 km2. 36-in steel 541 m 0.78 km2. Vibratory (120 dB) 15-18-in timber 2.2 km 6.8 km2. 24-in steel 5.4 km 26.1 km2. 36-in steel 11.7 km 49.6 km2. * Areas were adjusted wherever land masses are encountered prior to reaching the full extent of the radius around the driven pile. Marine Mammal Occurrence

    In this section we provide the information about the presence, density, or group dynamics of marine mammals that will inform the take calculations.

    Transient killer whales are rare in Hood Canal and there are few data to describe transient killer whale abundance within Hood Canal. There have been anecdotal accounts of the whales in Hood Canal for decades. There was a report from one day in April 2016 and eight days in May 2016 of whales in Dabob Bay in Hood Canal (Orca Network, 2016). It is not known if these sightings were all of the same group of transient killer whales. However, the temporally discontinuous data suggest a high degree of variability in the habitat use and localized relative abundances of transient killer whales in Hood Canal. Given that whales were observed on eight days, in May 2016, NMFS will assume that whales could be observed on up to 8 days during the SPE project. The most commonly observed group size in Puget Sound from 2004 to 2010 was 6 whales (Navy 2017).

    Harbor porpoises may be present in Puget Sound year-round typically in groups of one to five individuals and are regularly detected in Hood Canal. Aerial surveys conducted throughout 2013 to 2015 in Puget Sound indicated density in Puget Sound was 0.91 individuals/km2) (95% CI=0.72-1.10, all seasons pooled) and density in Hood Canal was 0.47/km2 (95% CI=0.29-0.75, all seasons pooled) (Jefferson et al., 2016). However, after reviewing the most recent data the Navy has estimated that harbor porpoise density in Hood Canal is 0.44 animals/km2 (Smultea et al., 2017). Mean group size of harbor porpoises in Puget Sound in the 2013-2015 surveys was 1.7 in Hood Canal.

    Steller sea lions are routinely seen hauled out on submarines at Naval Base Kitsap. The Navy relied on monitoring data from 2012 to 2016 to determine the average of the maximum count of hauled out Steller sea lions for each month in the in-water work window (Appendix A). The average of the monthly maximum counts during the in-water work window was 3.14.

    California sea lions can occur at Naval Base Kitsap Bangor in any month, although numbers are low from June through August (Appendix A in the application).

    California sea lions peak abundance occurs between October and May (NMFS, 1997; Jeffries et al., 2000) but animals can occur at Naval Base Kitsap Bangor in any month. The Navy relied on monitoring data from 2012 to 2016 to determine the average of the maximum count of hauled out California sea lions for each month (Appendix A). The Navy determined abundance of California sea lions based on the average monthly maximum counts during the in-water work window (Appendix A), respectively, for an average maximum count of 48.85 animals.

    Boat-based surveys and monitoring indicate that harbor seals regularly swim in the waters at Naval Base Kitsap Bangor (Appendix A in Application). Hauled-out adults, mother/pup pairs, and neonates have been documented occasionally, but quantitative data are limited. Incidental surveys in August and September 2016 recorded as many as 28 harbor seals hauled out under Marginal Wharf or swimming in adjacent waters. Additional animals were likely present at other locations during the same time of the surveys. To be conservative, the Navy estimated that an additional 7 animals were present based on typical sightings at the other piers at Bangor. Therefore, the Navy and NMFS assume that up to 35 seals could occur near the SPE project area on any given day.

    Take Calculation and Estimation

    Here we describe how the information provided above is brought together to produce a quantitative take estimate.

    To quantitatively assess exposure of marine mammals to noise levels from pile driving over the NMFS threshold guidance, one of three methods was used depending on the species spatial and temporal occurrence. For species with rare or infrequent occurrence during the in-water work window, the likelihood of occurrence was reviewed based on the information in Chapter 3 of the application and the potential maximum duration of work days and total work days. Only one species was in this category, transient killer whale, and it had the potential to linger for multiple days based on historical information. The calculation was:

    (1) Exposure estimate = Probable abundance during construction × Probable duration Where: Probable abundance = maximum expected group size Probable duration = probable duration of animal(s) presence at construction sites during in-water work window

    For species that regularly occur in Puget Sound, but for which local abundance data are not available, marine mammal density estimates were used when available to determine the number of animals potentially exposed in a ZOI on any one day of pile driving or extraction. Only harbor porpoise was in this category.

    The equation for this species with only a density estimate and no site-specific abundance was:

    (2) Exposure estimate = N × ZOI × maximum days of pile driving Where: N = density estimate used for each species ZOI = Zone of Influence; the area where noise exceeds the noise threshold value

    For species with site-specific surveys available, exposures were estimated by:

    (3) Exposure estimate = Abundance × maximum days of pile driving Where: Abundance = average monthly maximum over the time period when pile driving will occur for sea lions, and estimated total abundance for harbor seals

    All three pinniped species were in this category. Average monthly maximum counts of Steller sea lions and California sea lions (see Appendix A for abundance data of these species) were averaged over the in-water work window. The maximum number of animals observed during the month(s) with the highest number of animals present on a survey day was used in the analysis. For harbor seals, an abundance estimate for the Bangor waterfront was used.

    The following assumptions were used to calculate potential exposures to impact and vibratory pile driving noise for each threshold.

    • For formulas (2) and (3), each species will be assumed to be present in the project area each day during construction. The timeframe for takings would be one potential take (Level B harassment exposure) per individual, per 24 hours.

    • The pile type, size, and installation method that produce the largest ZOI were used to estimate exposure of marine mammals to noise impacts. Vibratory installation of 36-inch (90 cm) steel piles created the largest ZOI, so the exposure analysis calculates marine mammal exposures based on 36-inch steel piles for the 125 days when steel piles would be installed. For the estimated 35 days when concrete fender piles would be installed, impact driving was the only installation method and only 18-inch piles were proposed, so the exposure analysis calculated marine mammal exposures based on impact driving 18-inch concrete piles.

    • All pilings will have an underwater noise disturbance distance equal to the pile that causes the greatest noise disturbance (i.e., the piling farthest from shore) installed with the method that has the largest ZOI. If vibratory pile driving would occur, the largest ZOI will be produced by vibratory driving. In this case, the ZOI for an impact hammer will be encompassed by the larger ZOI from the vibratory driver. Vibratory driving was assumed to occur on all 125 days of steel pile driving, but not the 35 days of concrete fender pile installation.

    • Days of pile driving were conservatively based on a relatively slow daily production rate, but actual daily production rates may be higher, resulting in fewer actual pile driving days. The pile driving days are used solely to assess the number of days during which pile driving could occur if production was delayed due to equipment failure, safety, etc. In a real construction situation, pile driving production rates would be maximized when possible.

    Transient Killer Whale

    Using the first calculation described in the above section, exposures to underwater pile driving were calculated using the average group size times the 8 days transient killer whales would be anticipated in the Hood Canal during pile driving activities. The Navy assumed that the average pod size was six individuals.

    Using this rationale, 48 potential Level B exposures of transient killer whales from vibratory pile driving are estimated (six animals times 8 days of exposure). Based on this analysis, the Navy requested and NMFS has authorized 48 Level B incidental takes for behavioral harassment. Concrete and steel ZOIs from impact driving will be fully monitorable (maximum distances to behavioral thresholds of 46 m and 541 m, respectively, and maximum distance to injury thresholds is 14 m), so no killer whale behavioral or injury takes are expected from impact driving.

    Harbor Porpoise

    Applying formula (2) to the animal density (0.44 animals/km2), the largest ZOI for Level B exposure (49.6 km2) and the estimated days of steel pile driving (125), the Navy requested and NMFS has authorized 2,728 Level B incidental takes of harbor porpoises. The 49.6 km2 ZOI excludes the area behind the PSB because harbor porpoise have never been observed within the barrier. Harbor porpoise can be visually detected to a distance of about 200 m by experienced observers in conditions up to Beaufort 2 (Navy 2017). Therefore, the concrete ZOIs will be fully monitorable (maximum distance of 46 m), so no takes were calculated for the estimated 35 days of concrete fender pile installation.

    Steller Sea Lion

    Formula (3) as described in the previous section was used with site-specific abundance data to calculate potential exposures of Steller sea lions during steel pile driving for the SPE project. Animals could be exposed when traveling, resting, and foraging. Because a Level A injury shut-down zone will be implemented, Level A harassment is not expected to occur.

    The Navy conservatively assumes that any Steller sea lion that hauls out at Bangor could swim into the behavioral harassment zone each day during pile driving because this zone extends across Hood Canal and up to 11.7 km from the driven pile. The Navy estimated 3.14 animals could be exposed to harassment per day. These values provide a worst case assumption that on all 125 days of pile driving, all animals would be in the water each day during pile driving. Applying formula (3) to this abundance and the 125 steel pile driving days, the Navy requested and NMFS authorized the take of up to 393 Steller sea lions. If project work occurs during months when Steller sea lions are less likely to be present, actual exposures would be less. Additionally, if daily pile driving duration is short, exposure would be expected to be less because some animals would remain hauled out for the duration of pile driving. With a shutdown zone of 15 meters, Level B take is also anticipated to occur during 35 days of concrete fender pile installation. NMFS assumed that 3.14 animals would be exposed per day in the small Level B zone associated with impact driving of concrete piles resulting in 110 takes. Any exposure of Steller sea lions to pile driving noise will be minimized to short-term behavioral harassment. Therefore, NMFS has authorized the Level B take of 503 Steller sea lions.

    California Sea Lion

    Formula (3) was used with site-specific abundance data to calculate potential exposures of California sea lions during pile driving for the SPE project. Because a Level A injury shut-down zone will be implemented, no exposure to Level A noise levels will occur at any location. Based on site-specific data regarding the average maximum counts, the Navy assumes that 48.85 exposures per day could occur over 125 planned steel pile driving days resulting in 6,106 exposures. With a shutdown zone of 15 meters, Level B take is also anticipated to occur during 35 days of concrete fender pile installation. NMFS assumed that 48.85 animals would be exposed per day in the small Level B zone associated with impact driving of concrete piles resulting in 1,710 takes. Any exposure of Steller sea lions to pile driving noise will be minimized to short-term behavioral harassment. Therefore, NMFS has authorized 7,816 Level B takes.

    Harbor Seal

    The Navy calculated up to 35 harbor seals may be present per day during summer and early fall months. Exposure of harbor seals to pile driving noise will be primarily in the form of short-term behavioral harassment (Level B) during steel and concrete pile driving. Formula (3) was used with site-specific abundance data to calculate potential exposures of harbor seals due to pile driving for the SPE.

    The Navy assumes that any harbor seal that hauls out at Bangor could swim into the behavioral harassment zone each day during impact pile driving. The largest ZOI for behavioral disturbance (Level B) would be 11.7 km for vibratory driving and extraction of 36-inch steel piles. Applying formula (3) to the abundance of this species (35 individuals) and the 125 pile driving days, results in 4,375 takes Level B takes. With a shutdown zone of 35 meters Level B take is also anticipated to occur during 35 days of concrete fender pile installation. NMFS assumed that 35 animals would be exposed per day in the small Level B zone associated with impact driving of concrete piles resulting in 1,225 takes.

    The largest ZOI for Level A injury will be 217 m for impact driving (with bubble curtain) of 36-inch steel piles. A monitors' ability to observe the entire 217 m injury zone may be difficult because construction barges and the current Service Pier structure and associated mooring floats and vessels will interfere with a monitors' ability to observe the entire injury zone. Some individuals could enter, and remain in, the injury zone undetected by monitors, resulting in potential PTS. It is assumed that one of the 35 individuals present on the Bangor waterfront would enter, and remain in, the injury zone without being detected by marine mammal monitors each day during steel impact driving. Therefore, with 125 steel pile driving days and one individual per day being exposed to Level A noise levels, 125 Level A takes of harbor seals are authorized by NMFS. With a shutdown zone of 35 meters Level B take is also anticipated to occur during 35 days of concrete fender pile installation. NMFS assumed that 35 animals would be exposed per day in the small Level B zone associated with impact driving of concrete piles resulting in an additional 1,225 Level B takes. Therefore, NMFS has authorized 5,600 Level B takes

    It should be noted that Level A takes of harbor seals would likely be multiple exposures of the same individuals, rather than single exposures of unique individuals. This request overestimates the likely Level A exposures because: (1) Seals are unlikely to remain in the Level A zone underwater long enough to accumulate sufficient exposure to noise resulting in PTS, and (2) the estimate assumes that new seals are in the Level A ZOI every day during pile driving. No Level A takes are requested for vibratory pile driving because the maximum harbor seal injury zone is 26 m and is within a practicable shutdown distance. It is important to note that the estimate of potential Level A harassment of harbor seals is expected to be an overestimate, since the planned project is not expected to occur near Marginal Wharf—the location where most harbor seal activity occurs.

    Table 8 provides a summary of authorized Level A and Level B takes as well as the percentage of a stock or population authorized for take.

    Table 8—Authorized Take and Percentage of Stock or Population Species Authorized take Level A Level B % population Killer whale 0 48 19.7 Harbor porpoise 0 2,728 24.3 Steller sea lion 0 503 1.2 California sea lion 0 7,816 2.6 Harbor seal 125 5,600 n/a Mitigation

    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.

    In addition to the specific measures described later in this section, the Navy would conduct briefings between construction supervisors and crews, marine mammal monitoring team, and Navy staff prior to the start of all pile driving activity, and when new personnel join the work, in order to explain responsibilities, communication procedures, marine mammal monitoring protocol, and operational procedures.

    Use of Vibratory Installation—The Navy will employ vibratory installation to the greatest extent possible when driving steel piles to minimize high sound pressure levels associated with impact pile driving. Impact driving of steel piles will only occur when required by geotechnical conditions or to “proof” load-bearing piles driven by vibratory methods.

    Timing Restrictions—To minimize the number of fish exposed to underwater noise and other construction disturbance, in-water work will occur during the in-water work window previously described when ESA-listed salmonids are least likely to be present (USACE, 2015), July 16-January 15.

    All in-water construction activities will occur during daylight hours (sunrise to sunset) except from July 16 to September 15, when impact pile driving will only occur starting 2 hours after sunrise and ending 2 hours before sunset, to protect foraging marbled murrelets during the nesting season (April 15-September 23). Sunrise and sunset are to be determined based on National Oceanic and Atmospheric Administration data, which can be found at http://www.srrb.noaa.gov/highlights/sunrise/sunrise.html.

    Use of Bubble Curtain—A bubble curtain will be employed during impact installation or proofing of steel piles where water depths are greater than 0.67 m (2 ft). A noise attenuation device is not required during vibratory pile driving. If a bubble curtain or similar measure is used, it will distribute air bubbles around 100 percent of the piling perimeter for the full depth of the water column. Any other attenuation measure must provide 100 percent coverage in the water column for the full depth of the pile. The lowest bubble ring shall be in contact with the mudline for the full circumference of the ring. The weights attached to the bottom ring shall ensure 100 percent mudline contact. No parts of the ring or other objects shall prevent full mudline contact.

    A performance test of the bubble curtain shall be conducted prior to initial use for impact pile driving. The performance test shall confirm the calculated pressures and flow rates at each manifold ring. The contractor shall also train personnel in the proper balancing of air flow to the bubblers. The contractor shall submit an inspection/performance report to the Navy for approval within 72 hours following the performance test. Corrections to the noise attenuation device to meet the performance stands shall occur prior to use for impact driving.

    Soft-Start—The use of a soft start procedure is believed to provide additional protection to marine mammals by warning or providing a chance to leave the area prior to the hammer operating at full capacity, and typically involves a requirement to initiate sound from the hammer at reduced energy followed by a 30 second waiting period, then two subsequent reduced energy strike sets. (The reduced energy of an individual hammer cannot be quantified because it varies by individual drivers. Also, the number of strikes will vary at reduced energy because raising the hammer at less than full power and then releasing it results in the hammer “bouncing” as it strikes the pile, resulting in multiple “strikes.”)

    A soft-start procedure will be used for impact pile driving at the beginning of each day's in-water pile driving or any time impact pile driving has ceased for more than 30 minutes.

    Establishment of Shutdown Zones and Disturbance Zones—For all impact and vibratory pile driving of steel piles, shutdown and disturbance zones will be established and monitored. The Navy will focus observations within 1,000 m for all species during these activities but will record all observations. During impact driving of concrete piles the Navy will focus on monitoring within 100 m but will record all observations. The Navy will monitor and record marine mammal observations within zones and extrapolate these values across the entirety of the Level B zone as part of the final monitoring report. To the extent possible, the Navy will record and report on any marine mammal occurrences, including behavioral disturbances, beyond 1,000 m for steel pile installation and 100 m for concrete pile installation.

    The shutdown zones are based on the distances from the source predicted for each threshold level. Although different functional hearing groups of cetaceans and pinnipeds were evaluated, the threshold levels used to develop the disturbance zones were selected to be conservative for cetaceans (and therefore at the lowest levels); as such, the disturbance zones for cetaceans were based on the high frequency threshold (harbor porpoise). The shutdown zones are based on the maximum calculated Level A radius for pinnipeds and cetaceans during installation of 36-inch steel and concrete piles with impact techniques, as well as during vibratory pile installation and removal. These actions serve to protect marine mammals, allow for practical implementation of the Navy's marine mammal monitoring plan and reduce the risk of a take. The shutdown zone during any non-pile driving activity will always be a minimum of 10 m (33 ft) to prevent injury from physical interaction of marine mammals with construction equipment. Note that in the notice of proposed IHA (83 FR 10689: March 12, 2018), the Navy had requested and NMFS proposed larger shutdown zones than those authorized as depicted below. The shutdown zones were reduced to more closely align with the Level A isopleths shown in Tables 5 and 6. Reducing zone size should minimize shutdown occurrences caused by entry of animals into Level A zones. Excessive shutdowns caused by the originally proposed zones could negatively affect SPE project schedule without decreasing the risk of auditory injury to marine mammals.

    During all pile driving, the shutdown, Level A, and Level B zones as shown in Tables 9, 10, and 11 will be monitored out to the greatest extent possible with a focus on monitoring within 1,000 m for steel pile and 100 m for concrete pile installation.

    For steel pile impact pile driving, monitors would initiate shutdown when harbor seals approach or enter the zone. However, because of the size of the zone and the inherent difficulty in monitoring harbor seals, a highly mobile species, it may not be practical, which is why Level A take is requested.

    The isopleths delineating shutdown, Level A, and Level B zones during impact driving of all steel piles are shown in Table 10. Note that the Level A isopleth is larger than the Level B isopleth for harbor porpoises.

    Table 9—Shutdown, Level A, and Level B Isopleths During Impact Driving of Steel Piles Marine mammal group Level B isopleth
  • (meters)
  • Level A isopleth
  • (meters)
  • Shutdown zone
  • (meters)
  • Cetaceans 541 740 750 Harbor Seal 541 217 220 Sea Lions 541 12 15

    The isopleths for the shutdown, Level A, and Level B zones during vibratory driving of all steel piles are shown in Table 11.

    Table 10—Shutdown, Level A, Level B Isopleths During Vibratory Driving of Steel Piles Marine mammal group Level B isopleth
  • (meters)
  • Level A isopleth
  • (meters)
  • Shutdown zone
  • (meters)
  • Cetaceans 11,700 64 100 Harbor Seal 11,700 26 30 Sea Lions 11,700 12 15

    The shutdown, Level A, and Level B isopleths for implementation during impact driving of concrete piles are shown in Table 11. Given that the shutdown zone for all authorized species is larger than the Level A and Level B isopleths there should be no take recorded during concrete pile driving.

    Table 11—Shutdown, Level A, and Level B Isopleths During Impact Driving of Concrete Piles Marine mammal group Level B isopleth
  • (meters)
  • Level A isopleth
  • (meters)
  • Shutdown zone
  • (meters)
  • Cetaceans 46 74 100 Harbor Seal 46 19 35 Sea Lions 46 1 15

    Note that the radii of the disturbance zones may be adjusted if in-situ acoustic monitoring is conducted by the Navy to establish actual distances to the thresholds for a specific pile type and installation method. However, any planned acoustical monitoring plan must be pre-approved by NMFS. The results of any acoustic monitoring plan must be reviewed and approved by NMFS before the radii of any disturbance zones may be revised.

    The mitigation measures described above should reduce marine mammals' potential exposure to underwater noise levels which could result in injury or behavioral harassment. Based on our evaluation of the applicant's planned measures, as well as other measures considered by NMFS, NMFS has determined that the planned mitigation measures provide the means 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 planned 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.

    Visual Monitoring

    Marine mammal monitoring will include the following requirements.

    Marine Mammal Observers (MMOs) will be positioned at the best practicable vantage points, taking into consideration security, safety, and space limitations. During pile driving, one MMO will be stationed in a vessel, and at least four will be stationed on the pier, along the shore, or on the pile driving barge to maximize observation coverage. Each MMO location will have a minimum of one dedicated MMO (not including boat operators). There will be be 3-5 MMOs working depending on the location, site accessibility and line of sight for adequate coverage. Additional standards required for visual monitoring include:

    (a) Independent observers (i.e., not construction personal) are required;

    (b) At least one observer must have prior experience working as an observer;

    (c) Other observers may substitute education (undergraduate degree in biological science or related field) or training for experience;

    (d) Where 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; and

    Monitoring will be conducted by qualified observers, who will monitor for marine mammals and implement shutdown/delay procedures when applicable by calling for the shutdown to the hammer operator. Qualified observers are trained biologists, with the following minimum qualifications:

    (a) 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;

    (b) Advanced education in biological science or related field (undergraduate degree or higher required);

    (c) Experience and ability to conduct field observations and collect data according to assigned protocols (this may include academic experience);

    (d) Experience or training in the field identification of marine mammals, including the identification of behaviors;

    (e) Sufficient training, orientation, or experience with the construction operation to provide for personal safety during observations;

    (f) Writing skills sufficient to prepare a report of observations including but not limited to the number and species of marine mammals observed; dates and times when in-water construction activities were conducted; dates and times when in-water construction activities were suspended to avoid potential incidental injury from construction sound of marine mammals observed within a defined shutdown zone; and marine mammal behavior; and

    (g) 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.

    MMOs will survey the disturbance zone 15 minutes prior to initiation of pile driving through 30 minutes after completion of pile driving to ensure there are no marine mammals present. A determination that the shutdown zone is clear must be made during a period of good visibility (i.e., the entire shutdown zone and surrounding waters must be visible to the naked eye). Marine Mammal Observation Record forms (Appendix A of the application) will be used to document observations. Survey boats engaged in marine mammal monitoring will maintain speeds equal to or less than 10 knots.

    MMOs will use binoculars and the naked eye to search continuously for marine mammals and will have a means to communicate with each other to discuss relevant marine mammal information (e.g., animal sighted but submerged with direction of last sighting). MMOs will have the ability to correctly measure or estimate the animals distance to the pile driving equipment such that records of any takes are accurate relevant to the pile size and type.

    Shutdown shall occur if a species for which authorization has not been granted or for which the authorized numbers of takes have been met. The Navy shall then contact NMFS within 24 hours.

    If marine mammal(s) are present within or approaching a shutdown zone prior to pile driving, the start of these activities will be delayed until the animal(s) have left the zone voluntarily and have been visually confirmed beyond the shutdown zone, or 15 minutes has elapsed without re-detection of the animal.

    If animal is observed within or entering the Level B zone during pile driving, a take would be recorded, behaviors documented. However, that pile segment would be completed without cessation, unless the animal approaches or enters the shutdown Zone, at which point all pile driving activities will be halted. The MMOs shall immediately radio to alert the monitoring coordinator/construction contractor. This action will require an immediate “all-stop” on pile operations. Once a shutdown has been initiated, pile driving will be delayed until the animal has voluntarily left the Shutdown Zone and has been visually confirmed beyond the Shutdown Zone, or 15 minutes have passed without re-detection of the animal (i.e., the zone is deemed clear of marine mammals).

    All marine mammals observed within the disturbance zones during pile driving activities will be recorded by MMOs. These animals will be documented as Level A or Level B takes as appropriate. Additionally, all shutdowns shall be recorded. For vibratory driving activities, this data will be extrapolated across the full extent of the Level B ensonified zone (i.e. 11.7 km radii) to provide total estimated take numbers.

    A draft marine mammal monitoring report would be submitted to NMFS within 90 days after the completion of pile driving and removal activities. It will include an overall description of work completed, a narrative regarding marine mammal sightings, and associated marine mammal observation data sheets. Specifically, the report must include information as described in the Marine Mammal Monitoring Report (Appendix D of the application).

    If no comments are received from NMFS within 30 days, the draft final report will constitute the final report. If comments are received, a final report addressing NMFS comments must be submitted within 30 days after receipt of comments.

    In the unanticipated event that: (1) The specified activity clearly causes the take of a marine mammal in a manner prohibited by the IHA (if issued), such as an injury, serious injury or mortality; (2) an injured or dead animal is discovered and cause of death is known; or (3) an injured or dead animal is discovered and cause of death is not related to the authorized activities, the Navy will follow the protocols described in the Section 3 of Marine Mammal Monitoring Report (Appendix D of the application). Additionally, the Navy will report any pinniped hauled out at unusual sites (e.g., in work boats) to the local stranding network and to NMFS, and follow any procedures or measures stipulated by the stranding network.

    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).

    Pile driving and extraction associated with the Navy SPE project as outlined previously have the potential to injure, disturb or displace marine mammals. Specifically, the specified activities may result in Level B harassment (behavioral disturbance) for five marine mammal species authorized for take from underwater sound generated during pile driving operations. Level A harassment in the form of PTS may also occur to limited numbers of one species. Level A harassment was conservatively authorized for harbor seals since seals can occur in high numbers near the project area, can be difficult to spot, and MMO's ability to observe the entire 217 m injury zone may be slightly impaired because of construction barges and vessels. Potential takes could occur if marine mammals are present in the Level A or Level B ensonified zones when pile driving and removal occurs.

    No serious injury or mortality is anticipated given the nature of the activities and measures designed to minimize the possibility of injury to marine mammals. The potential for injury is minimized through the construction method and the implementation of the planned mitigation measures. Specifically, vibratory driving will be the primary method of installation. This driving method decreases the potential for injury due to relatively low source levels and lack of potentially injurious source characteristics. Only piles that cannot be driven to their desired depths using the vibratory hammer will be impact driven for the remainder of their required driving depth. Noise attenuating devices (i.e., bubble curtain) will be used during impact hammer operations for steel piles. During impact driving, implementation of soft start and shutdown zones significantly reduces any possibility of injury. Given sufficient “notice” through use of soft start (for impact driving), marine mammals are expected to move away from a sound source that is annoying prior to it becoming potentially injurious. Given the number of MMOs that will be employed, observers should have a relatively clear view of the shutdown zones, although under limited circumstances the presence of barges and vessels may impair observation of small portions of shutdown zones. This will enable a high rate of success in implementation of shutdowns to avoid injury.

    The Navy's planned activities are highly localized. Only a relatively small portion of Hood Canal may be affected. The project is not expected to have significant adverse effects on marine mammal habitat. No important feeding and/or reproductive areas for marine mammals are known to be near the project area. Impacts to salmonid and forage fish populations, including ESA-listed species, will be minimized by adhering to the designated in-water work period. Project-related activities may cause some fish to leave the area of disturbance, thus temporarily impacting marine mammals' foraging opportunities in a limited portion of the foraging range, but because of the relatively small area of the habitat range utilized by each species that may be affected, the impacts to marine mammal habitat are not expected to cause significant or long-term negative consequences.

    Exposures to elevated sound levels produced during pile driving activities may cause behavioral responses by an animal, but they are expected to be mild and temporary. Effects on individuals that are taken by Level B harassment, on the basis of reports in the literature as well as monitoring from other similar activities, will likely be limited to reactions such as increased swimming speeds, increased surfacing time, or decreased foraging (if such activity were occurring) (e.g.,Thorson and Reyff, 2006; Lerma, 2014). Most likely, individuals will simply move away from the sound source and be temporarily displaced from the areas of pile driving, although even this reaction has been observed primarily only in association with impact pile driving. These reactions and behavioral changes are expected to subside quickly when the exposures cease. The pile driving activities analyzed here are similar to, or less impactful than, numerous construction activities conducted in other similar locations including Hood Canal, which have taken place with no reported injuries or mortality to marine mammals, and no known long-term adverse consequences from behavioral harassment. Repeated exposures of individuals to levels of sound that may cause Level B harassment are unlikely to result in permanent hearing impairment or to significantly disrupt foraging behavior. Level B harassment will be reduced through use of mitigation measures described herein.

    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 stocks through effects on annual rates of recruitment or survival:

    • No mortality or serious injury is anticipated or authorized;

    • The area of potential impacts is highly localized;

    • No adverse impacts to marine mammal habitat;

    • The absence of any significant habitat within the project area, including rookeries, or known areas or features of special significance for foraging or reproduction;

    • Anticipated incidences of Level A harassment would be in the form of a small degree of PTS to a limited number of animals from one species;

    • Anticipated incidents of Level B harassment consist of, at worst, temporary modifications in behavior;

    • The anticipated efficacy of the required mitigation measures in reducing the effects of the specified activity.

    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 planned monitoring and mitigation measures, NMFS finds that the total marine mammal take from the planned 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 qualitative factors may be considered in the analysis, such as the temporal or spatial scale of the activities.

    Table 8 depicts the number of animals that could be exposed to Level A and Level B harassment from work associated with the SPE project. With the exception of harbor seals, the analysis provided indicates that authorized takes account for no more than 24.3 percent of the populations of the stocks that could be affected. These are small numbers of marine mammals relative to the sizes of the affected species and population stocks under consideration.

    For the affected stock of harbor seals, no valid abundance estimate is available. The most recent abundance estimates for harbor seals in Washington inland waters are from 1999, and it is generally believed that harbor seal populations have increased significantly during the intervening years (e.g., Mapes, 2013). However, we anticipate that takes estimated to occur for harbor seals are likely to occur only within some portion of the relevant populations, rather than to animals from the stock as a whole. For example, takes anticipated to occur at NBK Bangor would be expected to accrue to the same individual seals that routinely occur on haulouts at these locations, rather than occurring to new seals on each construction day. In summary, harbor seals taken as a result of the specified activities are expected to comprise only a limited portion of individuals comprising the overall relevant stock abundance. Therefore, we find that small numbers of marine mammals will be taken relative to the population size of the Hood Canal stock of harbor seal.

    Based on the analysis contained herein of the planned activity (including the planned mitigation and monitoring measures) and the anticipated take of marine mammals, NMFS finds that small numbers of marine mammals will be taken relative to the population size 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.

    National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, NMFS must review our proposed action (i.e., the issuance of an incidental harassment authorization) with respect to potential impacts on the human environment.

    This action is consistent with categories of activities identified in CE B4 of the Companion Manual for NOAA Administrative Order 216-6A, which do not individually or cumulatively have the potential for significant impacts on the quality of the human environment and for which we have not identified any extraordinary circumstances that would preclude this categorical exclusion. Accordingly, NMFS has determined that the issuance of the IHA qualifies to be categorically excluded from further NEPA review and signed a Categorical Exclusion memo in June 2018.

    Endangered Species Act (ESA)

    Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 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.

    No incidental take of ESA-listed species is planned for authorization or expected to result from this activity. Therefore, NMFS has determined that formal consultation under section 7 of the ESA is not required for this action.

    Authorization

    NMFS has issued an IHA to the Navy for the potential harassment of small numbers of five marine mammal species incidental to the Service Pier Extension project at Naval Base Kitsap Bangor provided the previously mentioned mitigation, monitoring and reporting requirements are incorporated.

    Dated: June 22, 2018. Elaine T. Saiz, Acting Deputy Director, Office of Protected Resources, National Marine Fisheries Service.
    [FR Doc. 2018-13870 Filed 6-27-18; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration Science and Technology for America's Oceans: A Decadal Vision AGENCY:

    Oceanic and Atmospheric Research (OAR), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce (DOC).

    ACTION:

    Notice of public comments.

    SUMMARY:

    The Office of Oceanic and Atmospheric Research on behalf of the National Science and Technology Council; Committee on Environment; Subcommittee on Ocean Science and Technology (SOST) is requesting input on the content of a report, Science and Technology for America's Oceans: A Decadal Vision. The SOST is chartered under the National Science and Technology Council to advise and assist on national issues related to ocean science and technology. The SOST contributes to the goals for Federal ocean science and technology, including identifying priorities and developing coordinated interagency strategies. Science and Technology for America's Oceans: A Decadal Vision identifies pressing research needs and areas of opportunity within the ocean S&T enterprise for the coming decade, 2018-2028. The aim of this document is not to prescribe policies but to provide guidance for U.S. Federal agencies and non-federal sectors to align their resources and areas of expertise, and further build the scientific and technological foundation that will improve our knowledge and stewardship of the ocean, address issues of national and global importance, and inform decision-making for the coming decade. This notice solicits relevant public input on the draft report. The public input provided in response to this notice will inform SOST as they develop the final report.

    DATES:

    Comments must be submitted on or before August 27, 2018.

    ADDRESSES:

    You may submit comments by email to [email protected] Please include “Science and Technology for America's Oceans” in the subject line of the message.

    Instructions: The report is available for download at: http://www.noaa.gov/stories/advancing-vision-of-science-and-technology-for-americas-oceans. Response to this Notice of Public Comments is voluntary. Clearly indicate which section and page number, if applicable, submitted comments pertain to. All submissions must be in English. Please clearly label submissions as “Science and Technology for America's Oceans: A Decadal Vision.” When the final report is issued, relevant comments and the commenters' names, along with the authors' responses, may become part of the public record and be made available to view online. NOAA therefore requests that no business proprietary information, copyrighted information, or personally identifiable information be submitted in response to this Notice of Public Comments. Please note that the U.S. Government will not pay for response preparation, or for the use of any information contained in the response.

    FOR FURTHER INFORMATION CONTACT:

    Stacy Aguilera-Peterson, Office of Science and Technology Policy, (202) 456-6066, or [email protected]

    SUPPLEMENTARY INFORMATION:

    The report describes:

    • Five high-priority goals to advance ocean science and technology (S&T) in the coming decade;

    • S&T objectives, identified as key areas to advance the U.S. Ocean S&T enterprise;

    • Specific research and development (R&D) priorities to achieve each objective; and

    • Areas of immediate ocean research opportunities and cross-cutting topics relevant to each of the five goals.

    Dated: June 22, 2018. David Holst, Chief Financial/Administrative Officer, Office of Oceanic and Atmospheric Research, National Oceanic and Atmospheric Administration.
    [FR Doc. 2018-13926 Filed 6-27-18; 8:45 am] BILLING CODE 3510-KA-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XG205 Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Mukilteo Multimodal Project—Season 3 AGENCY:

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

    ACTION:

    Notice; proposed incidental harassment authorization; request for comments.

    SUMMARY:

    NMFS has received a request from the Washington Department of Transportation (WSDOT) Ferries Division (WSF) for an incidental harassment authorization (IHA) that would cover a subset of the take authorized in an IHA previously issued to WSDOT to incidentally take marine mammals, by Level B harassment only, during construction activities associated with the Mukilteo Multimodal Project, Puget Sound, Washington. During planning of season 2 of the project (for which NMFS issued an IHA) it was assumed that the project would be completed within the year timeframe; however, that was not accomplished. Therefore, WSDOT is requesting, and NMFS is proposing to issue, an IHA authorizing incidental take for the remaining work which was already analyzed in an 2017 IHA issued to WSDOT on August 3, 2017 (herein after referred to as the 2017 IHA) (September 21, 2017). However, some changes have occurred during this year's evaluation of the project. Source levels and harassment distances have been adjusted based on recent acoustic measurements and amount of time pile driving expected to occur each day. In addition, WSDOT has requested take for three species not included in the 2017 IHA (minke whales (Balaenoptera acutorostrata), bottlenose dolphins (Tursiops truncatus), and long-beaked common dolphins (Delphinus delphis bairdii)) based on recent marine mammal monitoring. The proposed mitigation, monitoring, and reporting measures remain the same as prescribed in the 2017 IHA with slight modifications (e.g., shut down zones distance changes) as described below.

    NMFS is requesting comments on its proposal to issue an IHA to incidentally take marine mammals during the completion of Phase 2 of the Mukilteo Multimodal Project. NMFS will consider public comments prior to making any final decision on the issuance of the requested MMPA authorization and agency responses will be summarized in the final notice of our decision.

    DATES:

    Comments and information must be received no later than July 30, 2018.

    ADDRESSES:

    Comments should be addressed to Jolie Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service. Physical comments should be sent to 1315 East-West Highway, Silver Spring, MD 20910 and electronic comments should be sent to [email protected]

    Instructions: NMFS is not responsible for comments sent by any other method, to any other address or individual, or received after the end of the comment period. Comments received electronically, including all attachments, must not exceed a 25-megabyte file size. Attachments to electronic comments will be accepted in Microsoft Word or Excel or Adobe PDF file formats only. All comments received are a part of the public record and will generally be posted online at https://www.fisheries.noaa.gov/node/23111 without change. All personal identifying information (e.g., name, address) voluntarily submitted by the commenter may be publicly accessible. Do not submit confidential business information or otherwise sensitive or protected information.

    FOR FURTHER INFORMATION CONTACT:

    Jaclyn Daly, Office of Protected Resources, NMFS, (301) 427-8438. Electronic copies of the original application and supporting documents (including NMFS FR notices of the original proposed and final authorizations), as well as a list of the references cited in this document, may be obtained online at https://www.fisheries.noaa.gov/node/23111. 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, 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

    To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, NMFS must review our proposed action (i.e., the issuance of an incidental harassment authorization) with respect to potential impacts on the human environment.

    This action is consistent with categories of activities identified in Categorical Exclusion B4 (incidental harassment authorizations with no anticipated serious injury or mortality) of the Companion Manual for NOAA Administrative Order 216-6A, which do not individually or cumulatively have the potential for significant impacts on the quality of the human environment and for which we have not identified any extraordinary circumstances that would preclude this categorical exclusion. Accordingly, NMFS has preliminarily determined that the issuance of the proposed IHA qualifies to be categorically excluded from further NEPA review.

    We will review all comments submitted in response to this notice prior to concluding our NEPA process or making a final decision on the IHA request.

    Summary of Request

    On April 7, 2016, WSDOT submitted a request to NMFS requesting an IHA for the possible harassment of small numbers of marine mammal species incidental to construction associated with Phase 2 of the Mukilteo Multimodal Project in Mukilteo, Washington, between August 1, 2017, and July 31, 2018. NMFS issued the requested IHA on August 3, 2017, which covered Phase 2 of the project in its entirety and expires on July 31, 2018 (82 FR 44164; September 21, 2017). On January 9, 2018, we received a request from WSDOT for a subsequent authorization to take marine mammals incidental to the project because they realized all of the Phase 2 work would not be able to be completed under the existing IHA. A final version of the application, which we deemed adequate and complete, was submitted on March 1, 2018.

    Description of the Proposed Activity and Anticipated Impacts

    WSDOT operates and maintains 19 ferry terminals and one maintenance facility, all of which are located in Puget Sound or the San Juan Islands (Georgia Basin) (Figure 1-1 in WSDOT's application). The Mukilteo Multimodal Project is a multi-year construction project designed to improve the operations and facilities serving the mainland terminus of the Mukilteo-Clinton ferry route in Washington State. The 2017 IHA covered the installation of 661 piles of various sizes over an estimated 175 days of pile driving and removal (Table 1). WSDOT did not complete all the work, and now requests that this proposed IHA cover take incidental to the installation of the remaining piles (Table 1). The 2017 IHA authorized Level A and B harassment of two species of marine mammals and Level B harassment of seven species of marine mammals (Table 2). WSDOT requests authorization to harass these same species and an additional three species based on recent marine mammal monitoring near the project area(Table 2).

    To support public review and comment on the IHA that NMFS is proposing to issue here, we refer to the documents related to the previously issued IHA and discuss any new or changed information here. The previous documents include the Federal Register notice of the proposed IHA (82 FR 29713; May 10, 2017), Federal Register notice of issuance of the 2017 IHA (82 FR 44164, September 21, 2017), and all associated references and documents. We also refer the reader to WSDOT's previous and current applications and monitoring reports which can be found at https://www.fisheries.noaa.gov/node/23111.

    Detailed Description of the Action—A detailed description of the proposed vibratory and impact pile driving and removal activities at the Mukilteo Terminal is found in the aforementioned documents. The location, timing, and nature of the pile driving operations, including the type and size of piles and the methods of pile driving, are identical to those described in the previous notices, except that only a subset of the type and number of piles are proposed to be driven. In total, 116 piles would be installed with a vibratory hammer. Sixty five of those piles would also be proofed with an impact hammer on the same day vibratory pile driving would occur. Sixty five of the installed 24-in piles (some of which may be proofed with the impact hammer) would be temporary and would also be removed. WSDOT anticipates piles equal to or less than 36″ would be installed at a rate of 3 per day for a total of 38 days. An additional two days is needed to install the 78-in piles and 120-in piles. Sixty five of those piles would be removed at a rate of five per day for a total of 22 days. In total, up to 63 days of pile driving and removal may occur. WSDOT anticipates pile driving could occur over a seven month in-water work window (July 15-February 15).

    Table 1—Description of Work Planned, Analyzed, and Completed Under the 2017 IHA and Remaining Work Planned for 2018-2019 Method Pile size
  • (in)
  • Season 2 planned
  • (2017 IHA)
  • Season 2 completed Season 3 planned
  • (2018 IHA)
  • Number
  • of days
  • Comment
    Vibratory Driving 12 139 134 0 0 Fewer needed, complete. 24 69 4 65 22 Up to 69 temporary. 24 48 0 26 9 Fewer needed, permanent. 30 40 25 16 5 Permanent. 36 6 0 6 2 Permanent. 78 2 0 2 1 Permanent. 120 1 0 1 2 Permanent. sheet 90 0 0 0 Design change, not needed. Vibratory Removal 24 69 4 65 22 Temporary. 30 9 0 0 0 Delayed. sheet 90 0 0 0 Design change, not needed. Impact Driving 24 69 4 65 1 22 Proofed for load-bearing. 30 30 25 0 0 Fewer needed, complete. 1 Impact hammering would be conducted on same day as vibratory pile driving so these are not additional days.

    Description of Marine Mammals—A description of the marine mammals in the area of the activities is found in the previously cited documents, which remains applicable to this IHA as well. In addition, we include information here on three additional species which have been recently reported in Puget Sound and which WSDOT now requests take. We include a summary table here for all species and stocks for which take is requested.

    Table 2—Species and Stocks Expected To Occur in Project Area 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, 2014) 624 132 Family Balaenopteridae (rorquals): Humpback whale Megaptera novaeangliae California/Oregon/Washington Y 1,918 (0.03, 1,876, 2017) 11.0 9.2 Minke whale * Balaenoptera acutorostrata California/Oregon/Washington N 636 (0.72, 369, 2016) 3.5 1.3 Superfamily Odontoceti (toothed whales, dolphins, and porpoises) Family Delphinidae: Killer whale Orcinus orca Eastern North Pacific Southern Resident Y 76 (n/a, 76, 2017) 4 0 0.14 West coast transient N unk (unk, 243 2013) 2.4 0 Bottlenose dolphin * Tursiops truncatus California coastal N 453 (0.06, 346, 2016) 2.7 ≥2 Long-beaked common dolphin * Delphinus delphis bairdii California N 101,305 (0.49, 68,432, 2016) 657 35.4 Family Phocoenidae (porpoises): Harbor porpoise Phocoena phocoena Washington inland waters N 11,233 (0.37, 8,308, 2016) 66 7.2 Dall's porpoise Phocoenoides dalli California/Oregon/Washington N 25,750 (0.45, 17,954, 2016) 172 0.3 Order Carnivora—Superfamily Pinnipedia Family Otariidae (eared seals and sea lions): California sea lion Zalophus californianus U.S N 296,750 (n/a, 153,337, 2014) 9,200 389 Steller sea lion Eumetopias jubatus Eastern U.S N 52,139 (n/a, 41,638, 2015) 2,498 108 Family Phocidae (earless seals): Harbor seal Phoca vitulina Washington northern inland waters N 11,036 (0.15, 1999) 1,641 43 Elephant seal Mirounga angustirostris California breeding N 179,000 (n/a, 81,368, 2014) 2,882 8.8 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. 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 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. 4 SRWK population abundance as of December 31, 2017 according to the Center for Whale Research. 5 Harbor seal estimate is based on data that are greater than 8 years old, but this is the best available information for use here. * Indicates species added.

    For species analyzed in the 2017 IHA, NMFS has reviewed recent draft Stock Assessment Reports (SARs), information on relevant Unusual Mortality Events, and recent scientific literature, and determined that no new information affects our original analysis of impacts or previous determinations except what is provided below. Since issuing the 2017 IHA, NMFS published draft SARs (82 FR 60181; 19 December 2017) and the annual census for Southern Resident killer whales concluded. Stock information is updated for two species that have the potential to occur in the activity area: Humpback whale and Southern Resident killer whale. Total annual mortality and serious injury for humpback whales increased from 6.5 to 9.2 and Southern Resident killer whale abundance decreased from 78 to 76 individuals (the most recent SAR information, i.e., the draft 2017 SAR for this stock, includes an abundance estimate of 83; however, we use the December 31, 2017, Center for Whale Research population estimate here). These proposed changes in the draft 2017 SARs do not affect our estimated take numbers or negligible impact and small numbers determinations, and therefore these changes do not affect our analysis. The potential presence of the three additional species (described below) during pile driving is very low; however, we are proposing to authorize take due to WSDOT's request and evidence there is a possibility they may be in the action area, albeit rarely.

    Minke whale—The California-Oregon-Washington (CA-OR-WA) stock of minke whale may be found near the project site; however, this species is not common in Puget Sound. From 2013 through 2016, year-round systematic aerial surveys were conducted to better estimate marine mammal density. No minke whales were observed during these surveys within Puget Sound and on only two occasions in September 2014 were minke whales (n=2) observed in nearby Strait of Juan de Fuca (Smultea et al. 2017). For the years 2010 to 2016, in the August to February timeframe scheduled for this project, The Whale Museum reported a total of six sightings days for minke whale in the Mukilteo project area (TWM, 2017). During 51 days of monitoring from September 2017 to February 2018 under the 2017 IHA, zero minke whales were observed (WSDOT, 2018).

    Bottlenose dolphin—Bottlenose dolphins tend to inhabit warmer temperate and tropical waters and are not usually found in the colder waters of Puget Sound. However, bottlenose dolphins have been observed in Puget Sound as occasional visitors from both the offshore CA-OR-WA stock and California coastal stock since 1998 (CRC 2017a). More recently a group of dolphins observed in 2017 were positively identified as part of the CA coastal stock (CRC, 2017a, 2018). The more recent sightings in Puget Sound of several animals suggest a possible significant expansion of their range if they remain in the area. Such long distance travel outside their traditional range (>800 miles) may be due to long term changes in climate and shorter term fluctuations in coastal water conditions, such as those during El Niño events (CRC, 2017a). From September 2017 to February 2018, WSF conducted marine mammal monitoring during Year Two of the Mukilteo Multimodal Project. During 51 days of monitoring from September 2017 to February 2018 under the 2017 IHA, zero bottlenose dolphins were observed (WSDOT, 2018).

    Long-beaked common dolphin—Long-beaked common dolphins from the California stock could be present near the project area. The earliest documented sighting of long-beaked common dolphins in Puget Sound was July 2003. In June 2011, two long-beaked common dolphins were sighted in South Puget Sound. Sightings continued in 2012, and in 2016-17. Four to twelve sightings were reported regularly, with confirmed sightings of up to 30 individuals. Four to six dolphins have remained in Puget Sound since June 2016 and four animals with distinct markings have been seen multiple times and in every season of the year as of October 2017 (CRC 2017b). During 51 days of monitoring from September 2017 to February 2018 under the 2017 IHA, zero long-beaked common dolphins were observed (WSDOT, 2018).

    Potential Effects on Marine Mammals—A description of the potential effects of the specified activities on marine mammals and their habitat is found in these previous documents, which remains applicable to this IHA. There is no new information on potential effects and we anticipate the effects evaluated last year are germane to the three additional species (minke whale, bottlenose dolphin, and long-beaked common dolphin) authorized to be taken this year.

    Harassment Zones—We updated three source levels (24-in vibratory pile driving and removal and 24-in impact driving) for use in calculating Level A harassment isopleths. The 2017 IHA reflected a 24-in vibratory pile driving source level of 162 decibels (dB) root mean square (rms) based on measurements at Friday Harbor; however, we believe that measurements of vibratory driving of 24-in piles at Manette Bridge support a higher source level of 166 dB rms (Loughlin, 2010). We propose to carry over that source level to estimate noise levels generated by vibratory removal of the same size pile. New analysis of measurements made at the Coupeville Terminal also supports increasing the sound exposure level (single-strike; SEL) during 24-in impact pile driving from 174 dB SEL to 178 dB SEL (WSDOT, 2017). To estimate distances to the Level B harassment isopleth for vibratory driving 24-36-in piles, we applied new acoustic measurement data (Loughlin, 2017). For this proposed IHA, we also modified the method used to estimate Level A harassment zones. The 2017 IHA analysis used a more sophisticated modeling technique, described in detail in our 2017 Notice of Proposed IHA (citation). It is not warranted to replicate that complicated process for this action. Therefore, we used the NMFS User Spreadsheet tool to estimate Level A harassment distances. This approach is more conservative than the previous modeling effort because it considers a single frequency weighting factor adjustment (WFA) in lieu of considering the full frequency spectrum. Using a single frequency WFA is likely to over-predict Level A harassment distances as described in NMFS (2016), resulting in larger Level A harassment distances. The inputs used in the spreadsheet and resulting Level A harassment distances are presented in Table 3 and 4, respectively. Table 4 also contains the distances estimated to the Level B harassment zones from each type of work. Table 5 provides the corresponding Level B harassment areas, as well as the Level A harassment areas for those species for which we propose to authorize take by Level A harassment.

    Table 3—Inputs Into NMFS User Spreadsheet Input parameter Vibratory pile driving Impact pile driving Weighting Factor Adjustment 1 2.5 kHz 2 kHz. Source Level (SL) See Table 4 See Table 4 (SEL value). Duration 3 hours (24-36″ piles)
  • 2 hours (78″ piles)
  • 1 hour (120″ pile)
  • n/a.
    Strikes per pile n/a 300. Piles per day n/a 3. Transmission loss coefficient 15 15. Distance from SL measurement 10 m 10 m. 1 In instances where full auditory weighting functions associated with the SELcum metric cannot be applied, NMFS has recommended the default, single frequency weighting factor adjustments (WFAs) provided here. As described in Appendix D of NMFS' Technical Guidance (NMFS, 2016), the intent of the WFA is to broadly account for auditory weighting functions below the 95 frequency contour percentile. Use of single frequency WFA is likely to over-predict Level A harassment distances.
    Table 4—Level A Harassment Distances Considering Pile Driving Duration per 24 Hours Method Pile Size Source Level
  • (dB)
  • Level A
  • (meters)
  • LF 1 MF 1 HF 1 PH 1 OT 1 Level B (m)
    Vibratory 24 166 rms 2 30.6 2.7 45.3 18.6 1.3 6 8000 30 174 rms 3 104.5 9.3 154.5 63.5 4.5 6 8000 36 177 rms 3 165.6 14.7 244.9 100.7 7.1 7 8700 78 180 rms 4 200.3 17.8 296.2 121.8 8.5 8 20,000 120 180 rms 4 126.2 11.2 186.6 76.7 5.4 Impact 24 178 SEL (single strike)/193 rms 5 432.1 15.4 514.7 231.2 16.8 1,585 1 The abbreviatation mean: LF = low frequency cetacean, MF = mid-frequency cetacean, HF = high-frequency cetacean, PH = phocid, OT = otariid. 2 We assume vibratory removal and vibratory driving the same size pile would result in equal sound levels. Source level for 24″ piles is based on direct measurements during the Manette Bridge project (Loughlin, 2010a). 3Source levels for 30-in and 36-in piles is based on direct measurements during the Port Townsend Project (Loughlin, 2010b). 4 WSDOT does not have noise data for 78 and 120-in piles; therefore, we used data from Caltrans (2015). 5 Single strike SEL and rms values for impact driving 24-in piles is based on direct measurements during pile driving using a bubble curtain (i.e., source levels are attenuated) at the Coupeville Terminal (WSDOT, 2017). 6 Measurements during 30″ vibratory pile driving at Mukilteo in 2017 indicate pile driving was not detected at range of 7.9 km (Laughlin, 2017a). This equates to 66 km2. 7 At the Coleman Terminal, vibratory installation of two 36″ piles driven simultaneously was not detectable at 8.69 km (5.4 miles) (Laughlin 2017b). This equates to 69 km2. 8 The calculated Level B zone using a practical spreading loss model is 85,770 m; however, land is reached at a maximum of 20,000 m (Lowell Point on Camano Island). This equates to 107 km2.
    Table 5—Corresponding Harassment Threshold Ensonified Areas Method Pile size Level A
  • (km2) 1
  • HF PH OT Level B
  • (km2) 2
  • Vibratory 24 <0.01 <0.01 <0.01 66 30 <0.01 <0.01 66 36 0.06 0.06 69 78 0.01 0.01 107 120 0.01 0.01 Impact 24 0.4 0.4 4 1 Level A harassment areas are provided for species hearing groups for which Level A take is proposed. 2 Level B harassment areas are germane to all species.

    Estimated Take—A description of the methods used to estimate take anticipated to occur from the project is found in the project's aforementioned documents. The methods of estimating take are identical to those used in the previous IHA, including the use of the Navy 2015 marine mammal densities for inland Washington or most recent pinniped counts. We also updated harbor porpoise and Dall's porpoise density based on new information (Smultea et al., 2017 and Navy 2015, respectively). Because bottlenose dolphin and long-beaked common dolphin densities do not exist for this area, we used available data to estimate a sighting rate. Table 6 includes marine mammal count or density information used in the estimated take calculations.

    Table 6—Marine Mammal Counts and Densities Used To Estimate Take Density (ind/km2) Count Harbor seal 30/day 1. CSL 14/day 2. N. elephant seal 1/30 days 3. Killer whale—transient 0.3/day 4. SSL 5 0.0368. Gray whale 5 0.00051. Humpback whale 5 0.00007. Dall's porpoise 5 0.039. Harbor porpoise 6 0.75. Minke whale 5 0.002. Bottlenose dolphin 1 group of 7/30 days 7. Long-beaked common dolphin 1 group of 7/30 days 7. 1 During 51 days of marine mammal monitoring at the Mukilteo Terminal during 2017-2018 construction (conducted under WSDOT's previous IHA), 1,525 harbor seals were observed for a an average of 30 seals per day. 2 During 51 days of marine mammal monitoring at the Mukilteo Terminal during 2017-2018 construction (conducted under WSDOT's previous IHA), 707 California sea lions were observed for a an average of 14 sea lions per day. 3 WSDOT estimates 1 Northern elephant seal may occur in the action area once per month. 4 During 51 days of marine mammal monitoring at the Mukilteo Terminal during 2017-2018 construction (conducted under WSDOT's previous IHA), 16 transient killer whales observed for an average of 0.3 killer whales per day. 5 These densities were derived for the Navy's Northwest Testing and Training Range Inland Waters (Navy, 2015). 6 Density based on East Whidbey stratum, Table 17 in Smultea (2017). 7 Average group size and sihting frequency based on CRC, 2017.

    The rationale for the amount of take requested and proposed is as follows: For all estimates, we consider 76 days over seven months of pile driving. For density based estimates, the equation used is density × area × number of pile driving days summed across all piles types (Table 7) Because 24-in and 30-in piles have the same Level B harassment zone, we grouped these together. We also combined 78-in and 120-piles as they also have the same Level B harassment zone.

    For harbor porpoise, we calculated take using the density identified in Table 6; however, this greatly exceeded expected take based on previous marine mammal monitoring efforts around the terminal (e.g., WSDOT, 2018); therefore, we applied a 10 percent correction factor. For 24-in and 30-in piles: 0.75 × 66 km2 × 61 days (vibratory installation and removal) equals 3020 animals. For 36-in piles: 0.75 × 69 km2 × 2 days equals 104 animals. For 78-in and 120-in piles: 0.75 × 107km2 × 2 days = 161 animals. In total, we calculate 3,285 harbor porpoise could be taken. However, marine mammal monitoring conducted under the 2017 IHA yielded only 85 harbor porpoise sightings of which 28 were taken by harassment. Therefore, we are proposing to authorize 10 percent of the calculate take for a total of 329 harbor porpoise. We also calculated Level A takes of harbor porpoise for the four days vibratory driving 36-in through 120-in piles would occur and the 30 days of impact hammering 24-inch piles because vibratory driving 24-in piles does not produce a Level A harassment zone greater than the shut down zone and is very close to the pile (18.6 m). The resulting Level A harassment take is 12 harbor porpoise. We repeated this approach for Dall's porpoise and the Level B harassment take estimate approach for minke whales, humpback whales, gray whales, and Steller sea lions. We are not proposing Level A harassment take of the latter three species.

    For estimates considering counts, we considered the following. Over 51 days of marine mammal monitoring during the 2017/18 Mukilteo project, 1,525 harbor seals were observed. During active pile driving, 499 Level B takes and 15 Level A takes (or 3 percent of authorized Level B takes of harbor seals) were recorded, approximately 34 percent of the number of animals observed. To be conservative, it is assumed that up to 75 percent of the seals observed may be taken under this IHA, or 21 seals per day × 76 days = 1,596. We are allocating five percent of that amount to Level A take which is slightly greater than the three percent documented under the 2017 IHA. Therefore, we propose to authorize 80 Level A harassment takes and 1516 Level B harassment takes for a total of 1,596 harbor seal takes. California sea lion takes considered 14 animals × 76 days for a total of 1,064 Level B harassment takes. We are not proposing to authorize Level A harassment because the Level A harassment zones are very small based on one to three hours of pile driving and no California sea lions were taken by Level A harassment under the 2017 IHA. Northern elephant seals are rare but we are proposing to authorize take, by Level B harassment only, of 7 individuals (one per month). Up to 23 positively identified transient killer whales may be taken (0.3 animals × 76 days; see mitigation on killer whale identification) while only 5 gray whales and 6 humpback whales (see Endangered Species Act section) are proposed to be taken. See Table 7 for all proposed take numbers, by species, and the respective amount of the population that take represents.

    Table 7—Requested Take Amount, per Species, Relative to Population Size Level A Level B Total take % Population Harbor seal 80 1,516 1,596 14.5 CSL 0 1,064 1,064 0.4 N. elephant seal 0 7 7 >0.01 Killer whale—transient 0 23 23 9.5 SSL 0 161 161 0.2 Gray whale 0 5 5 0.02 Humpback whale 0 6 6 0.3 Dall's porpoise 4 7 12 0.05 Harbor porpoise 12 329 341 3.04 Minke whale 0 7 8 1.3 Bottlenose dolphin 0 49 49 10.8 Long-beaked common dolphin 0 49 49 0.04

    Description of Proposed Mitigation, Monitoring and Reporting Measures—A description of proposed mitigation, monitoring, and reporting measures is found in the previous documents, which are nearly identical in this proposed IHA. In summary, mitigation includes use of an unconfined bubble curtain (with operational standards set by the U.S. Fish and Wildlife Service) and soft start techniques during impact pile driving in greater than 2 ft of water, minimum 10 m shut down zone, and species-dependent shut down zones as described in Table 8. Some of these shut down zones fully encompass the Level A harassment zone; however, for species where we propose Level A take, this might not always be the case.

    Table 8—Shut-Down Zones Method Pile size Level A (meters) LF MF HF PH OT Level B
  • (m)
  • Vibratory 24 35 10 50 20 10 8,000 30 105 10 150 60 8,000 36 170 20 200 8,690 78 205 20,000 120 130 Impact 24 435 20 1,585

    Monitoring requirements would be similar to the 2017 IHA requirements (see an updated Marine Mammal Monitoring Plan available at https://www.fisheries.noaa.gov/node/23111). The number and location of Protected Species Observers (PSOs) is dependent upon activity and weather conditions and are as follows:

    (i) Three land-based PSOs during impact driving of 24-in piles;

    (ii) four land-based and one ferry-based PSOs during 24-, 30-, 36-in steel vibratory driving/removal;

    (iii) five land-based and one ferry-based PSOs during 78- and 120-in steel vibratory driving/removal; and

    (iv) two ferry-based PSOs in addition to land-based PSOs when weather conditions are poor.

    In April, 2018, WSDOT submitted a monitoring report for construction that had been completed under the 2017 IHA. WSDOT complied with all mitigation, monitoring, and reporting protocols. Recorded takes were below the number authorized for the corresponding amount of work. The monitoring report can be viewed on NMFS's website at https://www.fisheries.noaa.gov/node/23111.

    WSDOT will conduct acoustic monitoring during impact pile driving of 24-in piles per the acoustic monitoring plan submitted for the previous IHA. WSDOT will also conduct acoustic monitoring during vibratory driving 78-in and 120-in piles. Both the impact and vibratory acoustic monitoring plans are available at https://www.fisheries.noaa.gov/node/23111.

    Preliminary Determinations

    WSDOT proposes to conduct a subset of activities identical to those covered in the previous 2017 IHA. We have included take for three new species noting these are precautionary as these species are not common in the action area and these species were not observed during the project during previous construction. We also believe the potential behavioral reactions and effects on the cetacean species previously analyzed is applicable to these species, if not to some lesser extent due to lower probability of occurrence.

    When issuing the 2017 IHA, NMFS found Phase 2 of the Mukilteo Multimodal Project, in its entirety, would have a negligible impact to species or stocks' rates of recruitment and survival and the amount of taking would be small relative to the population size of such species or stock (less than 15 percent). As described above, the number of estimated takes of the same stocks are less than takes authorized in the 2017 IHA and the anticipated impacts from the project are similar to those previously analyzed. The amount of take for the additional three species is also small (less than 11 percent of each stock). The proposed IHA includes identical required mitigation, monitoring, and reporting measures (albeit some minor modification to harassment and shutdown distances) as the 2017 IHA. In conclusion, there is no new information suggesting that our analysis or findings should change.

    Based on the information contained here and in the referenced documents, NMFS has preliminarily determined the following: (1) The required mitigation measures will effect the least practicable impact on marine mammal species or stocks and their habitat; (2) the authorized takes will have a negligible impact on the affected marine mammal species or stocks; (3) the authorized takes represent small numbers of marine mammals relative to the affected stock abundances; and (4) WSDOT's activities will not have an unmitigable adverse impact on taking for subsistence purposes as no relevant subsistence uses of marine mammals are implicated by this action.

    Endangered Species Act

    Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 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 Region Protected Resources Division Office, whenever we propose to authorize take for endangered or threatened species. NMFS is proposing to authorize take of humpback whales from the Central American and Mexico DPSs, which are listed under the ESA.

    The effects of this proposed Federal action were adequately analyzed in NMFS' Biological Opinion for the Mukilteo Multimodal Project, Snohomish, Washington, dated August 1, 2017, which concluded that issuance of an IHA would not jeopardize the continued existence of any endangered or threatened species or destroy or adversely modify any designated critical habitat. NMFS West Coast Region has confirmed the Incidental Take Statement issued in 2017 is applicable for the proposed IHA. That ITS authorizes the take of six humpback whales.

    Proposed Authorization

    As a result of these preliminary determinations, we are proposing to issue an IHA to WSDOT to conduct the specified activities at the Mukilteo Ferry Terminal from September 1, 2018, through August 31, 2019, provided the previously described mitigation, monitoring, and reporting requirements are incorporated.

    This section contains a draft of the IHA itself. The wording contained in this section is proposed for inclusion in the IHA (if issued).

    1. This Authorization is valid from September 1, 2018, through August 31, 2019.

    2. This Authorization is valid only for activities associated with Phase 2 of the Mukilteo Multimodal Project, Puget Sound, Washington.

    3. General Conditions.

    (a) A copy of this IHA must be in the possession of WSDOT, its designees, and work crew personnel operating under the authority of this IHA.

    (b) The species authorized for taking are found in Table 7.

    (c) The taking, by Level A and B harassment only, is limited to the species listed in condition 3(b). See Table 7 for numbers of take authorized.

    (d) The taking by serious injury or death of any of the species listed in condition 3(b) of the Authorization or any taking of any other species of marine mammal is prohibited and may result in the modification, suspension, or revocation of this IHA.

    (e) WSDOT shall conduct briefings between construction supervisors and crews, marine mammal monitoring team, acoustical monitoring team, and WSDOT staff prior to the start of all pile driving, and when new personnel join the work, in order to explain responsibilities, communication procedures, marine mammal monitoring protocol, and operational procedures.

    4. Mitigation.

    (a) In-water construction work shall occur only during daylight hours during the established in-water work window (July 15 through February 15).

    (b) For in-water heavy machinery activities other than pile driving, if a marine mammal comes within 10 m, operations shall cease and vessels shall reduce speed to the minimum level required to maintain steerage and safe working conditions.

    (c) Pre-activity monitoring shall take place from 30 minutes prior to initiation of pile driving activity and post-activity monitoring shall continue through 30 minutes post-completion of pile driving activity. Pile driving may commence at the end of the 30-minute pre-activity monitoring period, provided observers have determined that the shutdown zone is clear of marine mammals, which includes delaying start of pile driving activities if a marine mammal is sighted in the zones identified in Table 8.

    (d) If a marine mammal approaches or enters the shutdown zone during activities or pre-activity monitoring, all pile driving activities at that location shall be halted or delayed, respectively. If pile driving is halted or delayed due to the presence of a marine mammal, the activity may not resume or commence until either the animal has voluntarily left and been visually confirmed beyond the shutdown zone and 15 minutes have passed without re-detection of the animal. Pile driving activities include the time to install or remove a single pile or series of piles, as long as the time elapsed between uses of the pile driving equipment is no more than thirty minutes.

    (e) WSDOT shall use soft start techniques when impact pile driving. Soft start requires contractors to provide an initial set of strikes at reduced energy, followed by a thirty-second waiting period, then two subsequent reduced energy strike sets. Soft start shall be implemented at the start of each day's impact pile driving and at any time following cessation of impact pile driving for a period of thirty minutes or longer.

    (f) WSDOT shall use a bubble curtain during impact driving of 24-in piles in greater than 2 feet of water. Should acoustic measurements identify that average source levels exceed those estimated for this activity (173 dB SEL, 193 dB rms), WSDOT shall contact NMFS Office of Protected Resources within 48 hours to determine if adjustments to harassment zones are warranted.

    (g) For all pile activities, the number and location of Protected Species Observers (PSOs) is dependent upon activity and weather conditions and are as follows:

    (i) three land-based PSOs during impact driving of 24-in piles;

    (ii) four land-based and one ferry-based PSOs during 24-, 30-, 36-inch steel vibratory driving/removal;

    (iii) five land-based and one ferry-based PSOs during 78- and 120-inch steel vibratory driving/removal; and

    (iv) two ferry-based PSOs in addition to land-based PSOs when weather conditions are poor.

    (h) Southern Resident Killer Whales (SRKW)

    (i) If a killer whale approaches the monitoring zone during pile driving or removal, and it is unknown whether it is a SRKW or a transient killer whale, it shall be assumed to be a SRKW and WSDOT shall implement the shutdown measure identified in 4(k).

    (ii) If a SRKW enters the monitoring zone undetected, WSDOT shall contact the Offices of Protected Resources within 24 hours to determine if additional monitoring is necessary to avoid future incidences.

    (iii) Coordination with Local Marine Mammal Research Network—Prior to the start of pile driving, WSDOT will contact the Orca Network and/or Center for Whale Research to get real-time information on the presence or absence of whales before starting any pile driving. WSDOT will also monitor the Orca Network site for visual and acoustic detections.

    (k) If a species for which authorization has not been granted, or a species for which authorization has been granted but the authorized takes are met, is observed approaching or within the Level B harassment zone for the pile size and method used (Table 8), pile driving and removal activities must shut down immediately using delay and shut-down procedures. Activities must not resume until the animal has been confirmed to have left the area or the observation time period, as indicated in 4(d) above, has elapsed.

    5. Monitoring.

    (a) Monitoring of pile driving shall be conducted by qualified PSOs (see below), who shall have no other assigned tasks during monitoring periods. WSDOT shall adhere to the following conditions when selecting observers:

    (iv) Independent PSOs shall be used (i.e., not construction personnel).

    (ii) At least one PSO must have prior experience working as a marine mammal observer during construction activities.

    (iii) Other PSOs may substitute education (degree in biological science or related field) or training for experience.

    (iv) Where a team of three or more PSOs are required, a lead observer or monitoring coordinator shall be designated. The lead observer must have prior experience working as a marine mammal observer during construction.

    (v) WSDOT shall submit PSO CVs for approval by NMFS prior to the onset of pile driving.

    (vi) WSDOT shall ensure that observers have the following additional qualifications:

    (vii) Ability to conduct field observations and collect data according to assigned protocols.

    (viii) Experience or training in the field identification of marine mammals, including the identification of behaviors.

    (ix) Sufficient training, orientation, or experience with the construction operation to provide for personal safety during observations.

    (x) Writing skills sufficient to prepare a report of observations including but not limited to the number and species of marine mammals observed; dates and times when in-water construction activities were conducted; dates, times, and reason for implementation of mitigation (or why mitigation was not implemented when required); and marine mammal behavior.

    (xi) 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.

    (b) WSDOT shall conduct acoustic monitoring per their impact and vibratory monitoring plans. Acoustic monitoring shall be conducted early at the onset of pile work.

    6. Reporting.

    (a) WSDOT shall provide NMFS with a draft monitoring report within 90 days of the conclusion of the construction work or within 90 days of the expiration of the IHA, whichever comes first. This report shall detail the monitoring protocol, summarize the data recorded during monitoring, and estimate the number of marine mammals that may have been harassed.

    (b) If comments are received from NMFS Office of Protected Resources on the draft report, a final report shall be submitted to NMFS within 30 days thereafter. If no comments are received from NMFS, the draft report will be considered to be the final report.

    (c) In the unanticipated event that the construction activities clearly cause the take of a marine mammal in a manner prohibited by this Authorization (if issued), such as an injury, serious injury, or mortality, WSDOT shall immediately cease all operations and immediately report the incident to the Office of Protected Resources, NMFS, and the West Coast Regional Stranding Coordinators. The report must include the following information:

    (i) Time, date, and location (latitude/longitude) of the incident;

    (ii) Description of the incident;

    (iii) Status of all sound source use in the 24 hours preceding the incident;

    (iv) Environmental conditions (e.g., wind speed and direction, sea state, cloud cover, visibility, and water depth);

    (v) Description of marine mammal observations in the 24 hours preceding the incident;

    (vi) Species identification or description of the animal(s) involved;

    (vii) Fate of the animal(s); and

    (viii) Photographs or video footage of the animal (if equipment is available).

    Activities shall not resume until NMFS is able to review the circumstances of the prohibited take. NMFS shall work with WSDOT to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. WSDOT may not resume their activities until notified by NMFS via letter, email, or telephone.

    (d) In the event that WSDOT 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), WSDOT will immediately report the incident to the Office of Protected Resources, NMFS, and the West Coast Regional Stranding Coordinators. The report must include the same information identified above. Activities may continue while NMFS reviews the circumstances of the incident. NMFS will work with WSDOT to determine whether modifications in the activities are appropriate.

    (e) In the event that WSDOT 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), WSDOT shall report the incident to the Office of Protected Resources, NMFS, and the West Coast Regional Stranding Coordinators, within 24 hours of the discovery. WSDOT shall provide photographs or video footage (if available) or other documentation of the stranded animal sighting to NMFS and the Marine Mammal Stranding Network. WSDOT can continue its operations under such a case.

    7. This Authorization may be modified, suspended or withdrawn if the holder fails to abide by the conditions prescribed herein or if NMFS determines the authorized taking is having more than a negl