Federal Register Vol. 83, No.14,

I. Background

On September 8, 2015, HHS and 15 other federal departments and agencies published a Notice of Proposed Rulemaking (NPRM) proposing revisions to each agency's codification of the Federal Policy for the Protection of Human Subjects, originally promulgated as a Common Rule in 1991. 80 FR 53931. On January 19, 2017, HHS and other federal departments and agencies published a final rule revising the Federal Policy for the Protection of Human Subjects. 82 FR 7149. The revised policy is hereafter referred to as the “2018 Requirements.” The 2018 Requirements are scheduled to become effective on January 19, 2018, with a general compliance date of January 19, 2018 (with the exception of the revisions to the cooperative research provision at § _.114(b), for which the compliance date is January 20, 2020).

After publication of the 2018 Requirements, representatives of the regulated community, including organizations representing recipients of federal human subjects research awards, expressed concern regarding the regulated community's ability to implement all of the 2018 Requirements by the scheduled general compliance date.1 Some of these stakeholders asked for a delay in the general compliance date of the 2018 Requirements with the exception of certain burden-reducing provisions of the 2018 Requirements, including certain carve-outs from the definition of “research,” exemptions, elimination of the continuing review requirement for certain categories of research, and the elimination of the requirement that institutional review boards (IRBs) review grant applications. The HHS Secretary's Advisory Committee on Human Research Protections (SACHRP) also recommended in August 2017 that implementation of the 2018 Requirements should be delayed.2

Through this interim final rule, we are delaying the effective date and the general compliance date of the 2018 Requirements for six months, until July 19, 2018. As described below, we revise § _.101(l)(3)-(4) to specify that the general compliance date for the 2018 Requirements is July 19, 2018.

Prior to July 19, 2018, regulated entities will continue to comply with the pre-2018 Requirements and those requirements will be enforced by the Common Rule departments and agencies. To clarify, regulated entities are not allowed, prior to July 19, 2018, to comply with the 2018 Requirements in lieu of the pre-2018 Requirements. Unless further regulatory action is taken, studies initiated on or after July 19, 2018, will be required to comply with the 2018 Requirements. Studies initiated prior to July 19, 2018 (i.e., studies initially approved by an IRB, studies for which IRB review was waived pursuant to § _.101(i), or studies determined to be exempt, before July 19, 2018) would, as a default, continue to be subject to the pre-2018 Requirements for their duration. This will maintain the ability of institutions to hold such studies to the same set of standards throughout the studies' duration, and will avoid a requirement that such research be subject to two sets of rules. However, on or after July 19, 2018, institutions may elect instead to conduct such studies in compliance with the 2018 Requirements, as set forth in § _.101(l)(3).

This interim final rule does not delay the compliance date for the cooperative research provision of the 2018 Requirements (§ _.114(b)), which remains January 20, 2020.

Under Section 553(b) of the Administrative Procedure Act (APA) (5 U.S.C. 551 et seq.), a notice of proposed rulemaking is not required when an agency, for good cause, finds that notice and public comment thereon are impracticable, unnecessary, or contrary to the public interest. Pursuant to 5 U.S.C. 553(b)(3)(B), we find that good cause exists to waive normal rulemaking requirements for the delay of the effective date and general compliance date to July 19, 2018. We believe that a notice-and-comment procedure, in this limited instance, is impracticable, unnecessary, or contrary to the public interest.

Representatives of the regulated community, and HHS's own advisory committee, have requested a delay in implementation of the 2018 Requirements, citing the final rule's complexity, the absence of needed guidance, and the need to revamp institutional procedures and electronic systems in order to come into compliance with the requirements of the rule. We agree that regulated entities need additional time for implementation and compliance, which would be furthered by the issuance of guidance by the Common Rule agencies. Without a delay, and without guidance, institutions that have expected a delay who hastily attempt to implement the revised rule without adequate preparation are bound to make mistakes, the consequences of which may jeopardize the proper conduct of research and the safety and wellbeing of human subjects. At this point, it is impracticable to gather comments on an implementation delay prior to January 19, 2018, the scheduled effective date of the 2018 Requirements.

In addition, the benefits underlying this interim final rule, i.e., providing certainty to entities in the regulated community that they will be afforded additional time before being subject to compliance with the 2018 Requirements prior to the date such requirements are scheduled to go into effect, would be substantially undermined if a notice and comment process were to occur before the delay set forth in this interim final rule was finalized. For example, we understand that regulated entities may need to devise new policies and procedures and new information technology systems to accommodate the 2018 Requirements in advance of the applicable effective and compliance date. In addition, the effect of this interim final rule is simply to maintain the status quo by continuing to require compliance with the pre-2018 Requirements for several months.

Further, the federal departments and agencies named in this interim final rule are developing a notice of proposed rulemaking in order to fully engage regulated entities and the public regarding further delay of the 2018 Requirements until January 21, 2019. The additional time provided by the six month delay in this interim final rule will allow sufficient time for the notice and comment rulemaking process to be completed. Issuance of this interim final rule avoids the possible result of having the federal departments and agencies propose an implementation delay but be unable to complete the rulemaking process and publish a final rule that would be effective by January 19, 2018. This could have resulted in the absurd circumstance in which regulated entities would be technically required to come into compliance with the 2018 Requirements on January 19, 2018, only until the date a final rule implementing the delay became effective. In this unique circumstance, allowing the regulation to become effective while further rulemaking for delay is ongoing would create confusion for, and impose unnecessary burdens on, the regulated community.

We also find that good cause exists for immediate implementation of this interim final rule and waiver of the 30-day delay in the effective date generally required by the APA. The APA provides that an agency is not required to delay the effective date when the agency, for good cause, finds that the requirement is impracticable, unnecessary, or contrary to the public interest (5 U.S.C. 553(d)(3)). Given the reasons identified above for the good cause to dispense with notice and comment, we believe that this requirement is also met here. Further, the 30-day delay in the effective date is normally intended to give affected parties time to adjust their business practices and make preparations before a final rule takes effect. Because the action being taken delays the effective date to July 19, 2018 and thus maintains the status quo, an additional 30-day delay of this action is unnecessary.

The rule issued by the Department of Homeland Security (DHS) is consistent with section 8306 of Public Law 108-458, the Intelligence Reform and Terrorism Prevention Act of 2004, under which DHS shall comply with 45 CFR part 46 or equivalent regulations issued by DHS; continued adherence to the HHS standard best ensures that DHS does not lose critical research opportunities as a result of inconsistent federal standards. The DHS rule is also consistent with DHS's waiver authority under forthcoming 6 CFR 46.101(i), as well as the exemption at 5 U.S.C. 553(a)(2) for rules related to “loans, grants, benefits, or contracts.”

Continued adherence to the HHS standard protects the Department of Education (ED) from the potential loss of critical research opportunities as a result of inconsistent federal standards. The ED rule is also consistent with ED's waiver authority under 34 CFR 97.101(i).

The legal authorities for the departments and agencies that are signatories to this action are as follows:

Department of Homeland Security, 5 U.S.C. 301; Public Law 107-296, sec. 102, 306(c); Public Law 108-458, sec. 8306. Department of Agriculture, 5 U.S.C. 301; 42 U.S.C. 300v-1(b). Department of Energy, 5 U.S.C. 301; 42 U.S.C. 7254; 42 U.S.C. 300v-1(b). National Aeronautics and Space Administration, 5 U.S.C. 301; 42 U.S.C. 300v-1(b). Department of Commerce, 5 U.S.C. 301; 42 U.S.C. 300v-1(b). Consumer Product Safety Commission, 5 U.S.C. 301; 42 U.S.C. 300v-1(b). Social Security Administration, 5 U.S.C. 301; 42 U.S.C. 289(a). Agency for International Development, 5 U.S.C. 301; 42 U.S.C. 300v-1(b), unless otherwise noted. Department of Labor, 5 U.S.C. 301; 29 U.S.C. 551. Department of Defense, 5 U.S.C. 301. Department of Education, 5 U.S.C. 301; 20 U.S.C. 1221e-3, 3474. Department of Veterans Affairs, 5 U.S.C. 301; 38 U.S.C. 501, 7331, 7334; 42 U.S.C. 300v-1(b). Environmental Protection Agency, 5 U.S.C. 301; 7 U.S.C. 136a(a) and 136w(a)(1); 21 U.S.C. 346a(e)(1)(C); sec. 201, Public Law 109-54, 119 Stat. 531; and 42 U.S.C. 300v-1(b). Department of Health and Human Services, 5 U.S.C. 301; 42 U.S.C. 289(a); 42 U.S.C. 300v-1(b). National Science Foundation, 5 U.S.C. 301; 42 U.S.C. 300v-1(b). Department of Transportation, 5 U.S.C. 301; 42 U.S.C. 300v-1(b).

We have examined the effects of this interim final rule under Executive Order 12866 on Regulatory Planning and Review (September 30, 1993), Executive Order 13563 on Improving Regulation and Regulatory Review (January 18, 2011), Executive Order 13771 on Reducing Regulation and Controlling Regulatory Costs (January 30, 2017), the Paperwork Reduction Act of 1995 (Pub. L. 104-13), the Regulatory Flexibility Act, (Pub. L. 96-354, September 19, 1980), the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), and Executive Order 13132 on Federalism (August 4, 1999).

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). Executive Order 13563 is supplemental to and reaffirms the principles, structures, and definitions governing regulatory review as established in Executive Order 12866, emphasizing the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. In accordance with the provisions of Executive Order 12866, this interim final rule has been determined to be a “significant” regulatory action and was submitted to the Office of Management and Budget (OMB) for review.

Executive Order 13771 directs Agencies to identify at least two existing regulations to be repealed for every new regulation unless prohibited by law. The total incremental cost of all regulations issued in a given fiscal year must have costs within the amount of incremental costs allowed by the Director of the Office of Management and Budget, unless otherwise required by law or approved in writing by the Director of the Office of Management and Budget. This action's designation as regulatory or deregulatory will be informed by comments received in response to this interim final rule. Details on the interim estimates of costs and cost savings of this rule can be found in the economic analysis below.

This interim final rule is intended to provide additional time to regulated entities for the preparations necessary to implement the 2018 Requirements. This interim final rule further allows time for the federal departments and agencies named in this interim final rule to conduct a notice and comment rulemaking process that will allow for public engagement as to whether a further delay in the implementation of the 2018 Requirements would be desirable.

The RIA for the 2018 Requirements described the benefits and costs of 16 broad categories of changes finalized. The RIA for this interim final rule uses the information and calculations described in the preamble to the 2018 Requirements as a base for estimating benefits and costs of delaying implementation of the 2018 Requirements by six months. The time period for the analysis in this RIA is January 2018 to July 2018.

Table 1 summarizes the quantified costs and cost savings of delaying implementation of 2018 Requirements. Over the period of January 2018 to July 2018, annualized cost savings of $7.4 million are estimated using a 3 percent discount rate; and $6.9 million using a 7 percent discount rate. Annualized costs of $49.5 million are estimated using a 3 percent discount rate; and $45.9 million using a 7 percent discount rate. Note that all values are represented in millions of 2016 dollars, and 2016 is used as the frame of reference for discounting.

The estimated benefits and costs of delaying the 2018 Requirements by six months are shown in Table 2 below. Note that the categorization shown below includes the same 16 categories used in the RIA of 2018 Requirements.

Discussion

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2017-0078, dated May 3, 2017 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Airbus Model A330-301, -321, -322 and -342 airplanes. The MCAI states:

You may examine the MCAI on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0023.

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. We are issuing this AD because we evaluated all pertinent information and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design.

Since there are currently no domestic operators of this product, we find good cause that notice and opportunity for prior public comment are unnecessary. In addition, for the reasons stated above, we find that good cause exists for making this amendment effective in less than 30 days.

This AD is a final rule that involves requirements affecting flight safety, and we did not precede it by notice and opportunity for public comment. We invite you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2018-0023; Product Identifier 2017-NM-084-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD 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 AD.

Currently, there are no affected U.S.-registered airplanes. This AD requires contacting the FAA to obtain instructions for addressing the unsafe condition, and doing the actions specified in those instructions. Based on the actions specified in the MCAI AD, we are providing the following cost estimates for an affected airplane that is placed on the U.S. Register in the future:

We have received no definitive data that would enable us to provide cost estimates for the on-condition actions specified in this AD.

A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a current valid OMB control number. The control number for the collection of information required by this AD is 2120-0056. The paperwork cost associated with this AD has been detailed in the Costs of Compliance section of this document and includes time for reviewing instructions, as well as completing and reviewing the collection of information. Therefore, all reporting associated with this AD is mandatory. Comments concerning the accuracy of this burden and suggestions for reducing the burden should be directed to the FAA at 800 Independence Ave. SW, Washington, DC 20591, ATTN: Information Collection Clearance Officer, AES-200.

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 transport category airplanes to the Director of the System Oversight Division.

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

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

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under 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.

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to PW PW4074, PW4074D, PW4077, PW4077D, PW4084D, PW4090, and PW4090-3 turbofan engines. The NPRM published in the Federal Register on August 25, 2017 (82 FR 40514). The NPRM was prompted by the discovery of multiple cracked outer diffuser cases. The NPRM proposed to require initial and repetitive inspections to detect cracks in the outer diffuser case and removal from service of cases that fail inspection. We are issuing this AD to correct the unsafe condition on these products.

We gave the public the opportunity to participate in developing this final rule. The following presents the comments received on the NPRM and the FAA's response to each comment.

PW requested that we change the effective date of the 1,000 cycle drawdown to “within 1,000 flight cycles from March 31, 2017”, to coincide with PW Alert Service Bulletin (ASB) PW4G-112-A72-347, rather than “within 1,000 flight cycles from the effective date of this AD”. PW stated that making the 1,000 cycle drawdown effective March 31, 2017, rather than the effective date of this AD, maintains the same level of risk.

We disagree with changing the effective date of the 1,000 cycle drawdown to “within 1,000 flight cycles from March 31, 2017”, to coincide with PW ASB PW4G-112-A72-347 because we cannot force mandatory action based on dates in the past. Mandatory action must be based on the effective date of this AD. In addition, we determined that basing the initial inspection and the inspection interval on the effective date of this AD maintains an acceptable level of safety. We did not change this AD.

PW and United Airlines (UAL) requested that we add Credit for Previous Actions to allow operators to take credit for inspections performed per PW ASB PW4G-112-A72-347, dated March 31, 2017 prior to the effective date of this AD.

We disagree. Since use of PW ASB PW4G-112-A72-347, dated March 31, 2017, is required in the compliance section of this AD, we do not need to reference this SB in the Credit for Previous Actions paragraph. Inspections performed per PW ASB PW4G-112-A72-347 prior to the effective date of this AD meet the criteria of “unless already done” in the compliance section of this AD.

UAL requested that we define “engine disassembly” as “when the M flange is split”. UAL reasoned that this would clarify the compliance requirements for operators and is consistent with PW ASB PW4G-112-A72-347, dated March 31, 2017.

We agree. Defining “engine disassembly” clarifies compliance requirements for operators. We added a Definition paragraph to this AD.

UAL requested that we add a third option for the initial inspection so that it could be performed prior to accumulating 13,000 cycles since new, or within 1,000 cycles from the effective date of this AD, or within 2,000 cycles since the last outer diffuser case piece-part fluorescent penetration inspection (FPI), whichever occurs later.

We partially agree. We agree with giving operator's credit for inspections done at piece-part exposure because if the outer diffuser case was inspected at piece-part exposure and passed inspection, it meets the initial inspection requirement mandated by this AD. We added a “Credit for Previous Actions” paragraph to this AD. Therefore, we disagree with adding the third option to the initial inspection compliance time specified in paragraph (g)(1) of this AD.

UAL requested that we identify the outer diffuser case piece-part level FPI done in accordance with PW Cleaning, Inspection and Repair (CIR) Manual 72-41-13, Inspection/Check-02, as an acceptable means of compliance for the repetitive inspections. UAL reasoned that when the outer diffuser case is at piece-part level, PW CIR Manual 72-41-13, Inspection/Check-02, is performed. The piece-part level FPI is equivalent to the high sensitivity module level inspection provided in PW ASB PW4G-112-A72-347, dated March 31, 2017.

We agree. Inspections performed at piece-part exposure maintain an acceptable level of safety because the piece-part level FPI specified in PW CIR Manual Part Number 51A750, section 72-41-13, Inspection/Check-02 is equivalent to the inspection mandated by this AD. Since we did not incorporate by reference a particular FPI process specification, a high sensitivity FPI using the methods, techniques, and practices equivalent to the current manufacturer's maintenance manual or Instructions for Continued Airworthiness satisfy both the initial and repetitive requirements of this AD. We did not change this AD.

PW requested that we change the service information reference from PW ASB PW4G-112-A72-347, dated March 31, 2017, to PW ASB PW4G-112-A72-347, Revision No. 1, dated October 26, 2017. PW stated that the SB has been revised to provide inspection clarifications requested by operators.

We disagree. We did not include PW ASB PW4G-112-A72-347, Revision No. 1, dated October 26, 2017, since the risk analysis was based on the original ASB and we did not have the opportunity to give the public a chance to comment on this revision. We did not change this AD.

We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this final rule with the changes described previously. We have determined that these minor changes:

• Are consistent with the intent that was proposed in the NPRM for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM.

We also determined that these changes will not increase the economic burden on any operator or increase the scope of this final rule.

We reviewed PW ASB PW4G-112-A72-347, dated March 31, 2017. This PW ASB provides guidance on performing outer diffuser case FPIs. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

We reviewed PW4000 Series (112 Inch) Engine CIR Manual, Part Number 51A750, Revision Number 74, section 72-41-13, Inspection/Check-02, dated July 15, 2017. This manual section provides guidance on performing a high sensitivity FPI of the outer diffuser case at piece-part exposure.

We estimate that this AD affects 121 engines installed on airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

We estimate the following costs to do any necessary replacements that would be required based on the results of the proposed inspection. We estimate six cases will need to be replaced in the domestic fleet.

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

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

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

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

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

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

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

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

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

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

We issued AD 2008-06-20 R1, Amendment 39-16089 (74 FR 61018, November 23, 2009) (“AD 2008-06-20 R1”), which applied to all Fokker Services B.V. Model F28 Mark 0070 and 0100 airplanes, and certain Model F28 Mark 1000, 2000, 3000, and 4000 airplanes. AD 2008-06-20 R1 was prompted by revised fuel ALI tasks, and CDCCL items, and associated thresholds, intervals and instructions. AD 2008-06-20 R1 required revising the ALS of the Instructions for Continued Airworthiness for certain airplanes, and the FAA-approved maintenance or inspection program, as applicable, for certain other airplanes, to incorporate new limitations for fuel tank systems. AD 2008-06-20 R1 also clarified the AD's intended effect on spare and on-airplane fuel tank system components, regarding the use of maintenance manuals and instructions for continued airworthiness. We issued AD 2008-06-20 R1 to reduce the potential of ignition sources inside fuel tanks, which, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane.

Since we issued AD 2008-06-20 R1, we have determined that revised Fuel ALI tasks, and CDCCL items, and associated thresholds, intervals and instructions need to be implemented.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2015-0030, dated February 24, 2015 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Fokker Services B.V. Model F28 Mark 1000, 2000, 3000, and 4000 airplanes. The MCAI states:

You may examine the MCAI on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0022.

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. We are issuing this AD because we evaluated all pertinent information and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design.

Since there are currently no domestic operators of this product, we find good cause that notice and opportunity for prior public comment are unnecessary. In addition, for the reason(s) stated above, we find that good cause exists for making this amendment effective in less than 30 days.

This AD is a final rule that involves requirements affecting flight safety, and we did not precede it by notice and opportunity for public comment. We invite you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2018-0022; Product Identifier 2015-NM-044-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD 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 AD.

Currently, there are no affected U.S.-registered airplanes. This AD requires contacting the FAA to obtain instructions for addressing the unsafe condition, and doing the actions specified in those instructions. Based on the actions specified in the MCAI AD, we are providing the following cost estimates for an affected airplane that is placed on the U.S. Register in the future:

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 transport category airplanes to the Director of the System Oversight Division.

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

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

1. Is not a “significant regulatory action” under Executive Order 12866;

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

3. Will not affect intrastate aviation in Alaska; and

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

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

Commission Rule 1.98 sets forth civil penalty amounts for violations of certain laws enforced by the Commission.1 As mandated by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015,2 the Commission adjusted the maximum civil penalty amounts under its jurisdiction through an Interim Final Rulemaking in June 2016 3 and a subsequent annual inflation adjustment in January 2017.4

Following the initial catch-up adjustment, the FCPIAA, as amended, directs agencies to adjust their civil penalties for inflation every January thereafter. Accordingly, the Commission is increasing these maximum civil penalty amounts to address inflation since the January 2017 adjustment. The following adjusted amounts will take effect on January 22, 2018:

• Section 7A(g)(1) of the Clayton Act, 15 U.S.C. 18a(g)(1) (premerger filing notification violations under the Hart-Scott-Rodino Improvements Act)—Increase from $40,654 to $41,484;

• Section 11(l) of the Clayton Act, 15 U.S.C. 21(l) (violations of cease and desist orders issued under Clayton Act section 11(b))—Increase from $21,598 to $22,039;

• Section 5(l) of the FTC Act, 15 U.S.C. 45(l) (unfair or deceptive acts or practices)—Increase from $40,654 to $41,484;

• Section 5(m)(1)(A) of the FTC Act, 15 U.S.C. 45(m)(1)(A) (unfair or deceptive acts or practices)—Increase from $40,654 to $41,484;

• Section 5(m)(1)(B) of the FTC Act, 15 U.S.C. 45(m)(1)(B) (unfair or deceptive acts or practices)—Increase from $40,654 to $41,484;

• Section 10 of the FTC Act, 15 U.S.C. 50 (failure to file required reports)—Increase from $534 to $545;

• Section 5 of the Webb-Pomerene (Export Trade) Act, 15 U.S.C. 65 (failure by associations engaged solely in export trade to file required statements)—Increase from $534 to $545;

• Section 6(b) of the Wool Products Labeling Act, 15 U.S.C. 68d(b) (failure by wool manufacturers to maintain required records)—Increase from $534 to $545;

• Section 3(e) of the Fur Products Labeling Act, 15 U.S.C. 69a(e) (failure to maintain required records regarding fur products)—Increase from $534 to $545;

• Section 8(d)(2) of the Fur Products Labeling Act, 15 U.S.C. 69f(d)(2) (failure to maintain required records regarding fur products)—Increase from $534 to $545;

• Section 333(a) of the Energy Policy and Conservation Act, 42 U.S.C. 6303(a) (knowing violations of EPCA section 332, including labeling violations)—Increase from $440 to $449;

• Section 525(a) of the Energy Policy and Conservation Act, 42 U.S.C. 6395(a) (recycled oil labeling violations)—Increase from $21,598 to $22,039;

• Section 525(b) of the Energy Policy and Conservation Act, 42 U.S.C. 6395(b) (willful violations of recycled oil labeling requirements)—Increase from $40,654 to $41,484;

• Section 621(a)(2) of the Fair Credit Reporting Act, 15 U.S.C. 1681s(a)(2) (knowing violations of the Fair Credit Reporting Act)—Increase from $3,817 to $3,895;

• Section 1115(a) of the Medicare Prescription Drug Improvement and Modernization Act of 2003, Public Law 108-173, 21 U.S.C. 355 note (failure to comply with filing requirements)—Increase from $14,373 to $14,666; and

• Section 814(a) of the Energy Independence and Security Act of 2007, 42 U.S.C. 17304 (violations of prohibitions on market manipulation and provision of false information to federal agencies)—Increase from $1,156,953 to $1,180,566.

The FCPIAA, as amended, directs federal agencies to adjust each civil monetary penalty under their jurisdiction for inflation in January of each year pursuant to a cost-of-living adjustment.5 The cost-of-living adjustment is based on the percent change between the U.S. Department of Labor's Consumer Price Index for all-urban consumers (“CPI-U”) for the month of October preceding the date of the adjustment, and the CPI-U for October of the prior year.6 Based on that formula, the cost-of-living adjustment multiplier for 2018 is 1.02041. The FCPIAA also directs that these penalty level adjustments should be rounded to the nearest dollar. Agencies do not have discretion over whether to adjust a maximum civil penalty, or the method used to determine the adjustment.

The following chart illustrates the application of these adjustments to the civil monetary penalties under the Commission's jurisdiction.

These new penalty levels apply to civil penalties assessed after the effective date of the applicable adjustment, including civil penalties whose associated violation predated the effective date.7 These adjustments do not retrospectively change previously assessed or enforced civil penalties that the FTC is actively collecting or has collected.

The FCPIAA, as amended, directs agencies to adjust civil monetary penalties through rulemaking and to publish the required inflation adjustments in the Federal Register, notwithstanding section 553 of title 5, United States Code. Pursuant to this congressional mandate, prior public notice and comment under the APA and a delayed effective date are not required. For this reason, the requirements of the Regulatory Flexibility Act (“RFA”) also do not apply.8 Further, this rule does not contain any collection of information requirements as defined by the Paperwork Reduction Act of 1995 as amended. 44 U.S.C. 3501 et seq.

For the reasons set forth in the preamble, the Federal Trade Commission amends title 16, chapter I, subchapter A, of the Code of Federal Regulations, as follows:

The Indian Gaming Regulatory Act (IGRA or Act), Public Law 100-497, 25 U.S.C. 2701 et seq., was signed into law on October 17, 1988. The Act establishes the National Indian Gaming Commission (NIGC or Commission) and sets out a comprehensive framework for the regulation of gaming on Indian lands. The IGRA established an agency funding framework whereby gaming operations licensed by tribes pay a fee to the Commission for each gaming operation that conducts Class II or Class III gaming activity that is regulated pursuant to IGRA. 25 U.S.C. 2717(a)(1). These fees are used to fund the Commission in carrying out its regulatory authority. Fees are based on the gaming operation's gross gaming revenues. The rates of fees are established annually by the Commission and payable on a quarterly basis. 25 U.S.C. 2717(a)(3). IGRA limits the total amount of fees imposed during any fiscal year to 0.08 percent of the gross gaming revenues of all gaming operations subject to regulation under IGRA. Failure of a gaming operation to pay the fees imposed by the Commission's fee schedule can be grounds for a civil enforcement action. 25 U.S.C. 2713(a)(1).

The purpose of part 514 is to establish how the NIGC sets and collects those fees, to establish a basic formula for tribes to utilize in calculating the amount of fees to pay, and to advise of the consequences for failure to pay the fees. Part 514 further establishes how the NIGC determines and assesses fingerprint processing fees.

The development of the rule formally began with the Commission's notice to tribal leaders by letter dated November 22, 2016, of the topic's inclusion in the Commission's 2017 tribal consultation series. On March 24, 2017, in Tulsa, OK, April 5, 2017, in Scottsdale, AZ, April 13, 2017, in San Diego, CA, April 20, 2017, in Billings, MT, May 4, 2017, in Biloxi, MS, and on May 25, 2017, in Portland, OR, the NIGC consulted with tribes on proposed changes to the fee regulations. In addition, the Commission issued a discussion draft on January 30, 2017, and solicited written comments through July 1, 2017. Comments received were generally supportive of the proposed changes to the fee regulations.

The Commission subsequently published a proposed rule in the Federal Register on November 13, 2017. 82 FR 52253. The proposed rule included amendments to the discussion draft prompted by internal review and the Commission's careful consideration of the substantive comments received through consultation and written submissions. The proposed rule included discussion of the Commission's amendments to the discussion draft and the Commission's responses to comments received. The proposed rule invited interested parties to continue to participate in the rulemaking process by submitting comments to the proposed rule to the Commission. While the Commission did not receive any substantive comments in response to the proposed rule, the comments received through consultation have proven invaluable to the Commission in developing this rule amending the fee regulations.

The rule is intended to improve the Commission's analysis and budgeting process and simplify the fee calculation and payment process for gaming operations, thereby reducing the frequency of error in fee calculation. Under the current fee regulations, the Commission adopts a preliminary fee rate by March 1 and a final fee rate by June 1 of every year. In addition, the NIGC annually reviews the costs involved in processing fingerprint cards and adopts a preliminary rate by March 1 and a final rate by June 1. The rule simplifies this process by amending the fee regulations to provide that the Commission will adopt a final fee rate and fingerprint processing fee no later than November 1 of each year. The rule also defines the fiscal year used in calculating the required annual fee so that the fee rate is applied consistently to a gaming operation's gross revenues for one fiscal year. Finally, among other clarifying revisions to the fee regulations, the rule describes the fees and statements required of gaming operations that cease operations.

The Commission did not receive any substantive comments in response to the proposed rule.

The National Indian Gaming Commission is committed to fulfilling its tribal consultation obligations—whether directed by statute or administrative action such as Executive Order (E.O.) 13175 (Consultation and Coordination with Indian Tribal Governments)—by adhering to the consultation framework described in its Consultation Policy published July 15, 2013. The NIGC's consultation policy specifies that it will consult with tribes on Commission Action with Tribal Implications, which is defined as: Any Commission regulation, rulemaking, policy, guidance, legislative proposal, or operational activity that may have a substantial direct effect on an Indian tribe on matters including, but not limited to the ability of an Indian tribe to regulate its Indian gaming; an Indian Tribe's formal relationship with the Commission; or the consideration of the Commission's trust responsibilities to Indian tribes. As discussed above, the NIGC engaged in extensive consultation on this topic and received and considered comments in developing this rule.

The rule will not have a significant impact on a substantial number of small entities as defined under the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. Moreover, Indian Tribes are not considered to be small entities for the purposes of the Regulatory Flexibility Act.

The rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. The rule does not have an effect on the economy of $100 million or more. The rule will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, local government agencies or geographic regions. Nor will the rule have a significant adverse effect on competition, employment, investment, productivity, innovation, or the ability of the enterprises, to compete with foreign based enterprises.

The Commission, as an independent regulatory agency, is exempt from compliance with the Unfunded Mandates Reform Act, 2 U.S.C. 1502(1); 2 U.S.C. 658(1).

In accordance with Executive Order 12630, the Commission has determined that the rule does not have significant takings implications. A takings implication assessment is not required.

In accordance with Executive Order 12988, the Commission has determined that the rule does not unduly burden the judicial system and meets the requirements of section 3(a) and 3(b)(2) of the Order.

The Commission has determined that the rule does not constitute a major federal action significantly affecting the quality of the human environment and that no detailed statement is required pursuant to the National Environmental Policy Act of 1969, 42 U.S.C. 4321, et seq.

The information collection requirements contained in this rule were previously approved by the Office of Management and Budget (OMB) as required by 44 U.S.C. 3501 et seq. and assigned OMB Control Number 3141- 0007. The OMB control number expires on November 30, 2018.

Therefore, for reasons stated in the preamble, the National Indian Gaming Commission revises 25 CFR part 514 to read as follows:

The Federal Civil Penalties Inflation Adjustment Act of 1990, as amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (collectively, “the Act”), codified at 28 U.S.C.S. 2461 note (LEXIS through Pub. L. 115-90, approved 12/8/17), requires Federal agencies to adjust their civil monetary penalty (CMP) rates for inflation every year.

In accordance with sections 4 and 5 of the Act, the annual CMP inflation adjustment for 2018 is based on the percent change in the Consumer Price Index for all Urban Consumers (CPI-U) between October 2016 and October 2017. The CPI-U for October 2016 was 241.729, and for October 2017 was 246.663, for an increase of 2.041%. In accordance with section 5(a) of the Act, the new maximum CMP rates must be rounded to the nearest whole dollar. In accordance with section 6 of the Act, the new maximum penalty rates will apply only to CMPs, including those which are associated with violations predating the increase, that are assessed after the date the increase takes effect.

ONRR assesses CMPs under the Federal Oil and Gas Royalty Management Act, 30 U.S.C. 1719, and our regulations at 30 CFR part 1241. We calculate and assess CMPs per violation, at the applicable rate, for each day such violation continues.

This final rule increases the maximum CMP rates for each of the four categories of violations identified in 30 U.S.C. 1719(a)-(d) and 30 CFR part 1241. The following list identifies the existing ONRR regulations containing CMP rates and shows those rates before and after this increase.

I. Background, Purpose and Legal Basis

On April 12, 2017, we published a document in the Federal Register entitled, “Drawbridge Operation Regulation; Delaware River, Pennsauken Township, NJ” announcing a temporary deviation from the regulations, with request for comments (see 82 FR 17562). The purpose of the deviation was to test the newly installed remote operational capabilities of the DELAIR Memorial Railroad Bridge across the Delaware River, mile 104.6, at Pennsauken Township, NJ, owned and operated by Conrail Shared Assets. The installation of the remote operation system capabilities did not change the operational schedule of the bridge.1

On June 30, 2017, we published a notice of proposed rulemaking (NPRM) entitled, “Drawbridge Operation Regulation; Delaware River, Pennsauken Township, NJ” (see 82 FR 29800). The original comment period closed on August 18, 2017.

On October 18, 2017, we published a document in the Federal Register entitled, “Drawbridge Operation Regulation; Delaware River, Pennsauken Township, NJ” announcing a temporary deviation from the regulations, with request for comments (see 82 FR 48419). This test deviation commenced at 8 a.m. on October 21, 2017, and will conclude at 7:59 a.m. on April 19, 2018. This notice included a request for comments and related material to reach the Coast Guard on or before January 15, 2018.2

On December 6, 2017, we published a notice of proposed rulemaking; reopening of comment period (NPRM); entitled “Drawbridge Operation Regulation; Delaware River, Pennsauken Township, NJ” in the Federal Register (see 82 FR 57561). It included a request for comments and related material to reach the Coast Guard on or before January 15, 2018.

This document reopening the comment period ensures notice and opportunity to comment on the temporary deviation before we decide whether to make any changes to it. This document is issued under authority of 33 U.S.C. 1223 and 5 U.S.C. 552.

We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.

We encourage you to submit comments through the Federal eRulemaking Portal at http://www.regulations.gov. If your material cannot be submitted using http://www.regulations.gov, contact the person in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions.

We accept anonymous comments. All comments received will be posted without change to http://www.regulations.gov and will include any personal information you have provided. For more about privacy and the docket, visit http://www.regulations.gov/privacynotice.

All previously published documents mentioned in this document along with all public comments will be in our online docket at http://www.regulations.gov and can be viewed by following that website's instructions. Additionally, if you go to the online docket and sign up for email alerts, you will be notified when comments are posted or a final rule is published.

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 COTP Captain of the Port II. Background Information and Regulatory History

On October 10, 2017, the North Carolina Department of Transportation notified the Coast Guard that they will be installing the navigation span of the new Herbert C. Bonner Bridge in Oregon Inlet in Dare County, North Carolina on January 29 through March 24, 2018, with alternate dates of March 25 through May 6, 2018. The construction will take place over an estimated 33 days during this period. In response, on December 5, 2017, the Coast Guard published a notice of proposed rulemaking (NPRM) titled Safety Zone; Oregon Inlet, Dare County, NC (82 FR 57413). There we stated why we issued the NPRM, and invited comments on our proposed regulatory action related to this fireworks display. During the comment period that ended December 20, 2017, we received 5 comments.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register. Delaying the effective date of this rule would be impracticable because immediate action is needed protect persons, vessels, and the marine environment on the navigable waters in Oregon Inlet during this construction phase. A Notice of Proposed Rulemaking was published in order to inform the public and solicit comments.

The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The COTP North Carolina has determined that potential safety hazards associated with the construction would be a concern for anyone transiting the Oregon Inlet navigation channel. The purpose of this rule is to protect persons, vessels, and the marine environment on the navigable waters in Oregon Inlet during this construction phase.

As noted above, we received 5 comments on our NPRM published December 5, 2017. Most of the submissions were not relevant to this rulemaking.

The first comment inquired about the benefits of the new bridge construction and its impact on the human environment. This rule pertains only to the creation of a safety zone for the navigation span construction phase and not the entire bridge construction project. The environmental impact analysis and other regulatory analyses for this rule are based only on the creation of this safety zone. This safety zone is necessary to protect persons, vessels, and the marine environment on the navigable waters in Oregon Inlet during this construction phase. The impact on the human environment is considered not significant because the closure is only for a two hour period on each construction day and the safety zone will not be active until after the normal morning traffic typically transits and will end before the evening traffic typically transits.

The second comment mentioned bridge safety and its obstruction to the waterway. This comment is outside the scope of this rulemaking dealing with the establishment of a safety zone. However, the Coast Guard would like to take this opportunity to state that this bridge will have the same horizontal clearance of the original Bonner Bridge. The new bridge is also designed with multiple spans that can be used if the waterway conditions change due to shoaling.

The third comment thanks the Coast Guard for a clear summary of the safety zone and includes commentary not related to the safety zone.

The fourth comment refers to the Unfunded Mandates Act analysis. The comment does not appear to refer specifically to this safety zone. The Unfunded Mandates Act was reviewed during the rulemaking process and is discussed in Section V of this rule.

The dates in the regulatory text of this rule have changed from the proposed rule in the NPRM.

The Coast Guard is establishing a safety zone to be enforced from January 29 through March 24, 2018, with alternate dates of March 25 through May 6, 2018. Construction is expected to take place on 33 separate days during this period. The safety zone will be active for 2 hours each of those days, with the exact times announced via Broadcast Notices to Mariners at least 48 hours prior to enforcement. The safety zone will include all navigable waters of Oregon Inlet from approximate position 35°46′23″ N, 75°32′18″ W, thence southeast to 35°46′18″ N, 75°32′12″ W, thence southwest to 35°46′16″ N, 75°32′16″ W, thence northwest to 35°46′20″ N, 75°32′23″ W, thence northeast back to the point of origin, (NAD 1983). This zone is intended to protect persons, vessels, and the marine environment on the navigable waters in Oregon Inlet during this construction phase. No vessel or person will be permitted to enter the safety zone during the designated times.

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

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

This regulatory action determination is based on the size, location, and duration of the proposed safety zone. Vessel traffic will not be allowed to enter or transit a portion of Oregon Inlet during specific two hour periods on 33 separate days from January 29 through March 24, 2018, with alternate dates of March 25 through May 6, 2018. The specific 2 hour period for each work day will be broadcast at least 48 hours in advance and vessels will be able to transit Oregon Inlet at all other times. The Coast Guard will issue a Local Notice to Mariners and transmit a Broadcast Notice to Mariners via VHF-FM marine channel 16 regarding the safety zone. This portion of Oregon Inlet has been determined to be a medium to low traffic area at this time of the year. This rule does not allow vessels to request permission to enter the safety zone covering the Oregon Inlet navigation channel during the designated times.

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.

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting for 2 hours on 33 separate days that would prohibit entry into a portion of Oregon Inlet for bridge construction. 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.

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

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

Legal Authority

Section 508 of the Rehabilitation Act of 1973 (hereafter, “Section 508”), as amended, mandates that Federal agencies “develop, procure, maintain, or use” information and communication technology (ICT) in a manner that ensures Federal employees with disabilities have comparable access to, and use of, such information and data relative to other Federal employees, unless doing so would impose an undue burden. 29 U.S.C. 794d. Section 508 also requires Federal agencies to ensure that members of the public with disabilities have comparable access to publicly-available information and data unless doing so would impose an undue burden on the agency. Id. The Access Board is charged with developing and maintaining standards that establish technical and functional performance criteria for ICT accessibility. 29 U.S.C. 794d(a)(2)(A), (B).

Section 255 of the Communications Act of 1934 (hereafter, “Section 255”), as amended, requires telecommunications equipment and services to be accessible to, and usable by, individuals with disabilities, where readily achievable. 47 U.S.C. 255. “Readily achievable” is defined in the statute as “easily accomplishable and able to be carried out without much difficulty or expense.” Id. Section 255 tasks the Access Board, in conjunction with the Federal Communications Commission (FCC), with the development of guidelines for the accessibility of telecommunications equipment and customer premises equipment, as well as their periodic review and update. The FCC, however, has exclusive authority under Section 255 to issue implementing regulations and carry out their enforcement. Id. Section 255(f).

On January 18, 2017, the Access Board published a final rule in the Federal Register (82 FR 5790) (hereafter, “ICT Final Rule”), which revised and updated—in a single rulemaking—the standards for Section 508-covered ICT developed, procured, maintained, or used by Federal agencies (hereafter, “508 Standards”), as well as the guidelines for telecommunications equipment and customer premises equipment covered by Section 255 (hereafter, “255 Guidelines”). Because nearly two decades had passed since the original issuance of our then-existing 508 Standards and 255 Guidelines, the ICT Final Rule was aimed at “refreshing” these regulations by, among other things, addressing changing technology and harmonizing with ICT accessibility standards that had been developed worldwide in recent years.

Subsequently, we discovered several small drafting errors in the ICT Final Rule. These errors included a few typographical errors and the inadvertent deletion of then-existing provisions that require telecommunications products and systems with two-way voice communication capabilities to also provide TTY compatibility and functionality. By this rule, the Access Board corrects these typographical errors and restores mistakenly deleted TTY requirements for ICT with two-way voice communication, albeit with slightly updated organization and wording (with no change in substance) for consistency with the ICT Final Rule.

The Access Board is publishing this direct final rule without prior notice and comment. The Administrative Procedure Act permits agencies to publish final rules without prior notice and comment when, for good cause, they determine such procedures are unnecessary. See 5 U.S.C. 553(b)(B). We view the minor, technical corrections in this rule as noncontroversial and do not anticipate adverse comment. Moreover, the public interest is best served by having these corrections without delay to prevent confusion concerning these errors in the ICT Final Rule and ensure that there are no gaps in accessibility requirements for ICT covered by Sections 508 or 255. Accordingly, there is good cause for waiver of prior notice and comment.

This direct final rule will take effect on the specified effective date, without further action, unless the Access Board receives adverse comment within the comment period. We consider an adverse comment to be a comment that challenges the propriety of the rule or asserts that it would be ineffective or unacceptable without material change. If the Access Board receives timely adverse comment, we will publish a notification in the Federal Register announcing full or partial withdrawal of this rule. If an adverse comment applies only to one part of this direct final rule, and it is possible to withdraw that part without defeating the purpose of the remaining parts of the rule, we may adopt, as final, those parts of this rule that received no adverse comment. Should the Access Board withdraw this rule due to adverse comment (in whole in part), we may subsequently incorporate such comment(s) into another direct final rule or publish a notice of proposed rulemaking.

This direct final rule remedies two typographical errors on the ICT Final Rule. First, the table of contents for appendix A to part 1194 (Section 508 of the Rehabilitation Act: Application and Scoping Requirements) incorrectly lists the title of E205 as “Content.” The correct title for this section is “Electronic Content.” In this rule, we correct this error by inserting the word “Electronic” before “Content” in the table of contents entry for E205 in appendix A. Second, also in appendix A to part 1194, there is a mistaken cross-reference in E202.6, Undue Burden or Fundamental Alteration. E202.6 currently reads, in pertinent part: “Where an agency determines in accordance with E202.5 that conformance to requirements in the Revised 508 Standards would impose an undue burden of would result in a fundamental alternation in the nature of the ICT . . .” (emphasis added). This text should instead refer to E202.6. This direct final rule revises the cross-reference in the first sentence of E202.6 from “E202.5” to “E202.6.”

The second set of corrections in this direct final rule restores the TTY-related accessibility requirements for ICT with two-way voice communication to the Access Board's 508 Standards and 255 Guidelines. As noted, when the Access Board published the ICT Final Rule in January 2017, ICT with two-way voice communication had long been required to ensure TTY compatibility and functionality. However, as discussed below, a drafting error resulted in these TTY-related accessibility requirements being mistakenly removed from the ICT Final Rule. This direct final rule restores these original TTY-related requirements to the Board's 508 Standards and 255 Guidelines, albeit with minor, non-substantive changes to better align them with the revised organization and language in the ICT Final Rule.

Both the original 508 Standards (issued in 2000) and 255 Guidelines (issued in 1998) required telecommunications products and services with two-way voice communication to provide certain TTY-related features, including a connection point for TTY (e.g., RJ-11 connector), a microphone capable of being turned on and off to allow a user to intermix speech and TTY use, and support for cross-manufacturer, non-proprietary standard TTY signal protocols (e.g., Baudot). See, e.g., Electronic and Information Technology Accessibility Standards—Final Rule, 65 FR 80500 (Dec. 21, 2000); Telecommunications Act Accessibility Guidelines—Final Rule, 63 FR 5608 (Feb. 3, 1998); see also 36 CFR part 1194 (2017), appendix D, section D1194.23(a)-(e) (reprinting original 508 Standards published in 2000 as appendix to revised regulations). TTYs (e.g., teletypewriters)—which were developed in the 1970s—allow persons with hearing- or speech-related disabilities to send and receive text communications over telephone networks.

In recent years, however, other text-based means of communication have emerged, including simple message service (SMS or text messages) and real-time text (RTT) technology. RTT technology permits the transmission of text in near real-time as each character is typed. SMS messages are not transmitted until the user issues a send function (usually by hitting the “enter” key). Like SMS, TTY technology has a significant disadvantage as compared to RTT—namely, to avoid scrambling messages, users must send completed messages on a turn-by-turn basis. This ability to send text transmissions instantly and simultaneously permits more conversational, interactive text-based communications that are akin to telephone conversations, as well as facilitating better communication during emergency situations. As a newer (digital) technology, RTT is directly compatible with wireless and internet protocol-based networks, whereas TTY, as an analog technology, is not. TTY signals have acoustic characteristics that cause them to be corrupted and become unusable with the typical digitization algorithms used for transmitting voice over wireless and IP-based networks.

By early 2015, when the Access Board published the notice of proposed rulemaking to “refresh” the 508 Standards and 255 Guidelines, RTT technology had matured sufficiently for the Board to propose that RTT supplant TTY as the form of text-based functionality required for ICT with two-way voice communication. See Notice of Proposed Rulemaking—Information and Communication Technology Standards and Guidelines, 80 FR 10880, 10900-10901, 10909 & 10910 (Feb. 27, 2015) (hereafter, “ICT NPRM”). Most comments received in response to the ICT NPRM were supportive of the Access Board's RTT proposal, though some expressed differing views on the appropriate technical standard for RTT interoperability with certain systems (such as Voice over internet Protocol or “VoIP” systems).

In May 2016, about one year after the ICT NPRM comment period had closed, the FCC initiated a proceeding (at the behest of several telecommunications companies) to update its accessibility rules to allow telecommunications providers and manufacturers to support RTT in lieu of TTY technology in IP-based telecommunication environments. See Transition from TTY to Real-Time Text Technology—Notice of Proposed Rulemaking, 81 FR 33170 (May 25, 2016).

In deference to the FCC's ongoing rulemaking efforts on a regulatory transition from TTY to RTT technology, the Access Board elected to postpone adoption of RTT-related accessibility requirements in the ICT Final Rule. See 82 FR at 5800. Consequently, we removed the proposed requirements for RTT functionality from Chapter 4 of the final rule, and simply reserved section 412.5 in the final rule for future use should the Board subsequently promulgate RTT-related requirements. See 36 CFR part 1194, appendix C, section 412.5.

By reserving adoption of RTT-related requirements, the Access Board did not thereby intend to leave a “gap” in accessibility requirements to ensure that persons with communication disabilities can use telephone networks. In other words, with the removal and reservation of RTT-related requirements, the TTY-related requirements in the original 508 Standards and 255 Guidelines should have been incorporated into the ICT Final Rule. However, due to a drafting oversight, these existing TTY requirements did not get incorporated into the final rule. As a result, the ICT Final Rule is presently—and unintentionally—silent with respect to TTY functionality requirements for ICT with two-way voice communication.

In this direct final rule, the Access Board restores the TTY-related requirements from the original 508 Standards and 255 Guidelines to ensure that, during the pendency of further rulemaking on RTT-related accessibility requirements, persons with communications disabilities will still be able to send and receive text-based communications over telephone networks.

Under the ICT Final Rule, Federal agencies were afforded one year from rule publication (i.e., Jan. 18, 2018) to comply with the revised 508 Standards. 82 FR at 5790, 5792 & 5821. The Access Board seeks to restore TTY-related requirements to the 508 Standards prior to this compliance date. The Board is not aware of any Federal agency having relied on the mistaken omission of TTY-related requirements from the ICT Final Rule as authorization to reduce or eliminate TTY functionality on their ICT with two-way voice communication.

As discussed in the preamble to the ICT Final Rule, the revised 508 Standards and 255 Guidelines feature significantly revamped organizational format and wording relative to their predecessor standards and guidelines. See 82 FR at 5790-91. The TTY-related accessibility requirements from the original 508 Standards and 255 Guidelines thus could not simply be reinserted into the revised standards and guidelines using their original wording and section numbering. Consequently, in this direct final rule, the TTY-related requirements from the original 508 Standards and 255 Guidelines have been modestly revised—in minor, non-substantive ways—so that they conform to the updated formatting and terminology used in the ICT Final Rule

In summary, this direct final rule incorporates the original TTY-related requirements into the revised 508 Standards and 255 Guidelines as follows. The technical specifications for TTY functionality appear as a new subsection (412.8) to the section that collectively sets forth the technical requirements applicable to ICT with two-way voice communication. We retained the original wording of these reinstated TTY-related requirements to the greatest extent possible; some minor, non-substantive wording changes were needed for consistency with updated terminology used in the ICT Final Rule. Additionally, in the scoping provision for hardware covered by the 255 Guidelines (C204.1), a companion exception has been added that exempts 255-covered hardware from the accessibility requirements in new 412.8.3. This exception mirrors the existing scope of coverage under the original 255 Guidelines. Unlike the original 508 Standards, the original 255 Guidelines do not require the features addressed in 412.8.3—namely, voice mail, auto-attendant, and interactive voice response telecommunications systems—to provide TTY functionality. Compare, e.g., 36 CFR 1193.51(d) (2016) (TTY-related compatibility requirements in original 255 Guidelines) with 36 CFR 1194.23(c), (e) (2016) (specifying, in original 508 Standards, that telecommunications systems for voice mail, auto-attendant, interactive voice response, and caller identification must be compatible with TTYs). Lastly, in consideration of technological advances, we have clarified that the requirements for TTY compatibility (412.8) cover software that provides TTY functionality, as well as stand-alone TTY devices and other hardware.

In Table 1 below, we provide a “cross-walk” that lists the TTY-related provisions added by the direct final rule and identifies their corresponding provisions in the original 508 Standards and 255 Guidelines.

The Access Board has examined the impact of this direct final rule under Executive Orders 12866 and 13563. These executive orders 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 (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). This rule does not impose any incremental costs or benefits because it makes minor administrative corrections and, on the one substantive matter, merely retains (restores) existing TTY-related requirements for ICT with two-way voice communication that have been in place for nearly two decades. As such, this direct final rule is not a significant regulatory action for purposes of section 3(f) of Executive Order 12866.

Additionally, because this direct final rule is a non-significant regulatory action that imposes no costs, it is also exempt from the requirements outlined in Executive Order 13771. See Exec. Order. 13771, 82 FR 9339 (Feb. 3, 2017); OMB, M-17-21, Guidance Implementing Executive Order 13771, Titled “Reducing Regulation and Controlling Regulatory Costs” (April 5, 2017).

This direct final rule is not a major rule within the meaning of the Congressional Review Act (5 U.S.C. 801 et seq.).

The Regulatory Flexibility Act (RFA) requires Federal agencies to analyze regulatory options that may assist in minimizing any significant impact of a rule on small businesses and small governmental jurisdictions. See 5 U.S.C. 604, 605(b). Because this direct final rule merely remedies several inadvertent drafting errors in the ICT Final Rule, including the unintentional deletion of longstanding TTY-related accessibility requirements, the Access Board certifies that the rule will not have a significant economic impact on a substantial number of small entities.

The Access Board has analyzed this direct final rule in accordance with the principles and criteria set forth in Executive Order 13132. The Board has determined that this action will not have a substantial direct effect on the States, or the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government, and, therefore, does not have Federalism implications.

This direct final rule does not contain any new collections of information or recordkeeping requirements that require OMB approval under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).

The Unfunded Mandates Reform Act of 1995 (codified at 2 U.S.C. 1531 et seq.) (“UMRA”) generally requires that Federal agencies assess the effects of their discretionary regulatory actions that may result in the expenditure of $100 million (adjusted for inflation) or more in any one year by the private sector, or by state, local, and tribal governments in the aggregate. Because this direct final rule is being issued under the good cause exception in the Administrative Procedure Act section 553(b)(B), UMRA's analytical requirements are inapplicable. See 2 U.S.C. 1532(a).

For the reasons stated in the preamble, and under the authority of 47 U.S.C. 255(e), the Board amends 36 CFR part 1194 as follows:

Background

On November 10, 2015, we received a petition from Defenders of Wildlife to list the giant manta ray (M. birostris), reef manta ray (M. alfredi) and Caribbean manta ray (M. c.f. birostris) as threatened or endangered under the ESA throughout their respective ranges, or, as an alternative, to list any identified distinct population segments (DPSs) as threatened or endangered. The petitioners also requested that critical habitat be designated concurrently with listing under the ESA. We found that the petitioned action may be warranted for the giant manta ray and reef manta ray and announced the initiation of status reviews for these species, but found that the Caribbean manta ray is not a taxonomically valid species or subspecies for listing, and explained the basis for that finding (81 FR 8874, February 23, 2016). On January 12, 2017, we published a proposed rule to list the giant manta ray as a threatened species under the ESA and made a 12-month determination that the reef manta ray did not warrant listing under the ESA (82 FR 3694). We solicited information on the proposed listing determination, the development of proposed protective regulations, and designation of critical habitat for the giant manta ray, and the comment period was open through March 13, 2017. This final rule provides a discussion of the information we received during and after the public comment period and our final determination on the petition to list the giant manta ray under the ESA.

We are responsible for determining whether species are threatened or endangered under the ESA (16 U.S.C. 1531 et seq.). To make this determination, we first consider whether a group of organisms constitutes a “species” under section 3 of the ESA, then whether the status of the species qualifies it for listing as either threatened or endangered. Section 3 of the ESA defines species to include “any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.” On February 7, 1996, NMFS and the U.S. Fish and Wildlife Service (USFWS; together, the Services) adopted a policy describing what constitutes a DPS of a taxonomic species (61 FR 4722). The joint DPS policy identified two elements that must be considered when identifying a DPS: (1) The discreteness of the population segment in relation to the remainder of the species (or subspecies) to which it belongs; and (2) the significance of the population segment to the species (or subspecies) to which it belongs.

Section 3 of the ESA defines an endangered species as “any species which is in danger of extinction throughout all or a significant portion of its range” and a threatened species as one “which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” Thus, in the context of the ESA, the Services interpret an “endangered species” to be one that is presently in danger of extinction. A “threatened species” is not presently in danger of extinction, but is likely to become so in the foreseeable future (that is, at a later time). In other words, the primary statutory difference between a threatened and endangered species is the timing of when a species is or is likely to become in danger of extinction, either presently (endangered) or in the foreseeable future (threatened).

When we consider whether a species might qualify as threatened under the ESA, we must consider the meaning of the term “foreseeable future.” It is appropriate to interpret “foreseeable future” as the horizon over which predictions about the conservation status of the species can be reasonably relied upon. The foreseeable future considers the life history of the species, habitat characteristics, availability of data, particular threats, ability to predict threats, and the ability to reliably forecast the effects of these threats and future events on the status of the species under consideration. Because a species may be susceptible to a variety of threats for which different data are available, or which operate across different time scales, the foreseeable future is not necessarily reducible to a particular number of years.

Additionally, as the definition of “endangered species” and “threatened species” makes clear, the determination of status can be based on either assessment of the rangewide status of the species, or the status of the species in a “significant portion of its range.” A species may be endangered or threatened throughout all of its range or a species may be endangered or threatened throughout only a significant portion of its range. The Services published a final policy to clarify the interpretation of the phrase “significant portion of its range” (SPR) in the ESA definitions of “threatened species” and “endangered species” (referred to as the “SPR Policy,” 79 FR 37577; July 1, 2014). The policy expressly recognizes that the SPR phrase provides an independent basis for listing and sets out the following principles:

(1) If a species is found to be endangered or threatened throughout only an SPR, the entire species is listed as endangered or threatened, respectively, and the ESA's protections apply to all individuals of the species wherever found.

(2) A portion of the range of a species is “significant” if the species is not currently endangered or threatened throughout its range, but the portion's contribution to the viability of the species is so important that without the members in that portion (i.e., if the members were hypothetically lost), the species would be in danger of extinction, or likely to become so in the foreseeable future, throughout all of its range.

(3) The range of a species is considered to be the general geographical area within which that species can be found at the time USFWS or NMFS makes any particular status determination. This range includes those areas used throughout all or part of the species' life cycle, even if they are not used regularly (e.g., seasonal habitats). Lost historical range is relevant to the analysis of the status of the species, but it cannot constitute an SPR.

(4) If a species is endangered or threatened throughout an SPR, and the population in that significant portion is a valid DPS, we will list the DPS rather than the entire taxonomic species or subspecies.

The statute also requires us to determine whether any species is endangered or threatened throughout all or a significant portion of its range as a result of any one or a combination of the following five factors: The present or threatened destruction, modification, or curtailment of its habitat or range; overutilization for commercial, recreational, scientific, or educational purposes; disease or predation; the inadequacy of existing regulatory mechanisms to address identified threats; or other natural or manmade factors affecting its continued existence (ESA section 4(a)(1)(A)-(E)).

To make a listing determination, we first determine whether a petitioned species meets the ESA definition of a “species.” Next, using the best available information gathered during the status review for the species, we assess the extinction risk of the species. In assessing the extinction risk of the giant manta ray, in conjunction with the section 4(a)(1) factors, we considered demographic risk factors, such as those developed by McElhany et al. (2000), to organize and evaluate the forms of risks. The demographic risk analysis is an assessment of the manifestation of past threats that have contributed to the species' current status and also informs the consideration of the biological response of the species to present and future threats. The approach of considering demographic risk factors to help frame the consideration of extinction risk has been used in many of our previous status reviews (see http://www.nmfs.noaa.gov/pr/species for links to these reviews). In this approach, the collective condition of individual populations is considered at the species level according to four demographic viability factors: abundance and trends, population growth rate or productivity, spatial structure and connectivity, and genetic diversity. These viability factors reflect concepts that are well-founded in conservation biology and that individually and collectively provide strong indicators of extinction risk.

Scientific conclusions about the overall risk of extinction faced by the giant manta ray under present conditions and in the foreseeable future are based on our evaluation of the species' demographic risks and ESA section 4(a)(1) threat factors. Our assessment of overall extinction risk considered the likelihood and contribution of each particular factor, synergies among contributing factors, and the cumulative impact of all demographic risks and threats on the giant manta ray.

Section 4(b)(1)(A) of the ESA requires us to make listing determinations based solely on the best scientific and commercial data available after conducting a review of the status of the species and after taking into account efforts being made by any State or foreign nation or political subdivision thereof to protect the species. Therefore, prior to making a listing determination, we also assess such protective efforts to determine if they are adequate to mitigate the existing threats. In evaluating the efficacy of existing domestic protective efforts, we rely on the Services' joint Policy on Evaluation of Conservation Efforts When Making Listing Decisions (“PECE”; 68 FR 15100; March 28, 2003) for any conservation efforts that have not been implemented, or have been implemented but not yet demonstrated effectiveness.

In response to our request for public comments on the proposed rule, we received information and/or comments from 25 parties. The large majority of commenters supported the proposed listing determination but provided no new or substantive data or information relevant to the listing of the giant manta ray. We also directly solicited comments from the foreign ambassadors of countries where the giant manta ray occurs and received a response from the Aquatic Resources Authority and the Ministry of the Environment of Panama and the Fisheries and Aquaculture Regulatory Department of Guatemala, both in support of the proposed listing determination. Summaries of the substantive public comments received and our responses are provided below and organized by topic.

Comment 1: One commenter stated that the giant manta ray is widely distributed over vast tropical oceans and, therefore, is not a vulnerable species tied to specific restricted habitats. The commenter further noted that according to their own literature search, manta rays do not appear to have any predators, and the commenter did not know of any reports of manta rays being eaten by sharks. The commenter concluded that because the manta ray has only one pup per birth, this indicates very low predation on the young. Finally, the commenter stated that there are no existing or historical commercial or sport fisheries for manta rays in U.S. waters and, thus, the stock has not been affected by any fisheries.

Response: We note that the commenter did not provide any references that were not already considered and included in the status review report and proposed rule. While we agree that the giant manta ray is a wide-ranging species, we pointed out in the proposed rule that habitat preference for the species varies by region. And while the species may show low habitat specificity, we noted that manta rays frequently rely on offshore reefs for important life history functions (e.g., feeding, cleaning).

We disagree that manta rays do not have any predators. As noted in the proposed rule, manta rays are frequently observed with shark-inflicted bites, and killer whales have been recorded preying on manta rays. We also note that the number of young does not provide an indication of predation rates on young. While the predation rate on young manta rays is unknown, the status review reports that after birth, young mantas need a period of minutes before they can swim properly, meaning they would be at risk of predation during this time. Additionally, because mantas do not provide any parental care to their offspring, the survival rate of the young may depend on the mother's choice of birth site. However, at this time, manta ray pupping and nursery grounds are unknown. Therefore, we are aware of no information to support the commenter's conclusion that there is very low predation on manta ray young.

Finally, while we do not dispute that there are no known existing or historical commercial or sport fisheries for manta rays in U.S. waters, this does not mean that U.S. fisheries are not contributing to the mortality rates of giant manta rays. As stated in the status review and proposed rule, giant manta rays are sometimes caught as bycatch in the U.S. bottom longline and gillnet fisheries operating in the western Atlantic. Additionally, manta rays have been identified in U.S. bycatch data from fisheries operating primarily in the Central and Western Pacific Ocean, including the U.S. tuna purse seine fisheries, the Hawaii-based deep-set and shallow-set longline fisheries for tuna, and the American Samoa pelagic longline fisheries. However, given the low estimates of M. birostris bycatch in U.S. fisheries, we concluded that impacts from this mortality on the species are likely to be minimal.

Comment 2: One commenter stated the available information on abundance declines was insufficient to imply a rangewide decline. The commenter noted that many of the declines described in the status review were in highly populous areas or where targeted fishing for mobulids occurs, and that both the status review and proposed rule state that giant manta rays may be stable where they are not subject to fishing. Additionally, the commenter states that the documented declines are not based on systematic abundance surveys and rely heavily on anecdotal information.

Response: We proposed to list the giant manta ray based on its status in a significant portion of its range (SPR). Our proposal is not based on our assessment of the status throughout the range. We agree that the available information on abundance trends is lacking throughout the species range, but within the relevant SPR, the best available data indicate that the species has suffered population declines of significant magnitude (up to 95 percent in some places). We note that these declines are largely based on trends in landings and market data, diver sightings, and anecdotal observations. While we would also like to have systematic abundance survey data, this type of data is not currently available, nor did the commenter provide any such data. Under the ESA, we are required to use the best available data to make our listing determinations, and we have determined that the best available data, along with the evidence of threats to the species (i.e., overutilization and inadequacy of existing regulatory mechanisms), indicate that the species is likely to become in danger of extinction within the foreseeable future throughout a significant portion of its range.

Comment 3: One commenter suggested that the longline catch-per-unit-effort (CPUE) data from the Western and Central Pacific Ocean (WCPO) should be viewed circumspectly, and that further analysis is warranted to discern the cause of the reduction in M. birostris catch as presented in Tremblay-Boyer and Brouwer (2016). Additionally, the commenter argues that the WCPO purse seine catch data (Tremblay-Boyer and Brouwer 2016) does not indicate a decline, and that the bycatch data for the Eastern Pacific Ocean (Hall and Roman 2013) are variable or do not exhibit a strong trend. As such, the commenter asserts that the available evidence suggests only localized depletion and does not support a threatened status for M. birostris throughout the Indo-Pacific and Eastern Pacific (i.e., the relevant significant portion of its range).

Response: In the status review and proposed rule, we noted that the available WCPO CPUE longline data presented in Tremblay-Boyer and Brouwer (2016), while short, indicates that the giant manta ray is observed less frequently in recent years compared to 2000-2005. Based on the distribution of longline effort from 2000-2015 in the Western and Central Pacific Fisheries Commission longline fisheries, effort has been concentrated around Indonesia and the Philippines (Williams and Terawasi 2016), where significant declines in the species have been observed. Additionally, Williams and Terawasi (2016) note that there has been a growth in the domestic fleets operating in the South Pacific over the past decade, with effort clearly increasing between 2004 and 2015. Therefore, we think it is reasonable to assume that the noted declines in observations of the giant manta ray in the WCPO may be a result of fishery-related mortality and an associated decrease in the abundance of the species in the region. While the commenter suggested that the decline may be due to some aspect of the fishery that has made M. birostris less catchable, they did not provide, nor are we aware of any information that supports that assumption.

In terms of the WCPO purse seine data (presented in Tremblay-Boyer and Brouwer (2016)), we noted in the status review that these data show strong reporting bias trends (as observer reporting in the purse seine fisheries to species-level became more prevalent after 2008), and, therefore, should not be used to assess abundance trends. The bycatch data for the Eastern Pacific Ocean (Hall and Roman 2013), mentioned by the commenter, is also discussed in the status review. While the current data do not exhibit a strong trend, overall, they do show a substantial increase in the catch and bycatch (defined as individuals retained for utilization and individuals discarded dead, respectively) of manta rays in purse seines in the Eastern Pacific Ocean since 2005. For example, prior to 2005, catch and bycatch remained below 20 t per year (data from 1998-2004), but by 2005, it was around 30 t and jumped to around 150 t in 2006 (Hall and Roman 2013). In 2008, catch and bycatch had dropped to 40 t and, in 2009, decreased further to less than 10 t (Hall and Roman 2013). In 2015, catches of manta and mobula rays by Inter-American Tropical Tuna Commission (IATTC) large purse seine vessels with observers on board in the Eastern Pacific Ocean (EPO) was 71 t (IATTC 2016). As mentioned in the status review, the estimated average annual capture for giant manta rays by IATTC purse seine vessels operating in the EPO was 135 individuals (based on data from 1993-2015). We have also become aware of a recent preliminary productivity and susceptibly analysis (PSA) that was not included in the draft status review (Miller and Klimovich 2016). This preliminary PSA suggests that giant manta rays are one of the most vulnerable species to overfishing in the EPO purse-seine fisheries (Duffy and Griffiths 2017). Specifically, the PSA compared 32 species and calculated vulnerability scores as a combination of the species' productivity and susceptibility to the fishery (Duffy and Griffiths 2017). In all three of the models run, giant manta rays were always one of the top five most vulnerable species to the EPO purse seine fisheries (Duffy and Griffiths 2017). Because effort in this fishery coincides with high productivity areas where giant manta rays are likely to aggregate, and have been observed caught in sets, we find that this continued fishing pressure in the EPO purse-seine fisheries is likely to lead to substantial declines in M. birostris throughout this portion of its range and potential extirpations within the foreseeable future, with evidence of significant declines already observed off Cocos Island, Costa Rica (a protected area for manta rays).

Given the migratory nature of the species, as well as the significant fishing pressure and threats of overutilization and inadequacy of existing regulatory mechanisms to address those threats, further supported by available data indicating the vulnerability of the species to overfishing and declines in giant manta ray populations throughout this portion of its range, we disagree with the commenter and find that the available evidence indicates that M. birostris is likely to be in danger of extinction in the foreseeable future throughout the Indo-Pacific and Eastern Pacific portion of its range.

Comment 4: One commenter provided manta/mobula ray CPUE data from the Hawaii deep-set and shallow-set longline fisheries and the American Samoa longline fishery based on unpublished NMFS observer data.

Response: We have updated the final status review report with this information. The CPUE data further support our findings that catch of manta rays is low in these fisheries. Specifically, the observer data indicate that the CPUE (individuals per 1,000 hooks) has ranged between <0.001 and 0.003 in the Hawaii deep-set longline fishery since 2002, with approximately 20 percent observer coverage. In the Hawaii shallow-set longline fishery, CPUE has ranged between 0 and 0.005 since 2004, with 100 percent observer coverage. In the American Samoa longline fishery, CPUE has ranged between <0.001 and 0.003 since 2007, with approximately 20 percent observer coverage. While we find that this new data supports our conclusion that impacts from these U.S. fisheries on the status of giant manta rays are likely minimal, we do not find that it changes our analysis or conclusions regarding the extinction risk of the giant manta ray throughout a significant portion of its range due to overutilization in non-U.S. fisheries.

Comment 5: One commenter requested that the final rule expressly state that the Hawaii-based longline fisheries have only very rare interactions with manta rays, and negligible, discountable, and insignificant indirect effects on M. birostris. The commenter provides Hawaii-based and American Samoa longline bycatch data from 2011 to 2013 to support this argument.

Response: We have updated the final status review report with the provided bycatch data from 2011 and 2012. The status review already presented the bycatch information from 2013. It is not necessary to present detailed information in this rule about specific fisheries that do not appear to be significantly affecting the status of M. birostris, because this rule is focused on explaining the basis for our conclusion regarding the listing status of the species. Available details on particular fisheries and their associated impacts can be found in the final status review of the species (Miller and Klimovich 2017). As mentioned in our response to Comment 4, based on available U.S. bycatch data from fisheries operating primarily in the Central and Western Pacific Ocean, including the Hawaii-based deep-set longline fisheries, the status review concludes that impacts on the giant manta ray are likely to be minimal. The additional data further support this finding.

Comment 6: One commenter provided personal observations from aerial surveys of manta rays off of St. Augustine, Florida. The commenter noted that the surveys were done from 2009-2012, and that they personally observed vast schools of mantas, with it not unusual to observe over 500 manta rays per 6-8 hour day of aerial survey. The commenter noted that unpublished results from aerial surveys also document significant numbers of manta rays from 2011-2013, and that additional aerial surveys are underway at this time.

Response: We thank the commenter for this general information and have included it in the final status review (Miller and Klimovich 2017) as a personal communication from the commenter. However, without more specific information regarding these aerial surveys and the associated data (including survey methods and manta ray identification protocols, specific counts of individuals, composition of schools (i.e., males, females, juveniles, adults), seasonal and geographical information), we find that information is still severely lacking on population sizes, distribution, and trends in abundance of M. birostris within this portion of its range. As such, this general information does not change our conclusion from the proposed rule regarding the demographic risks to the species or the overall extinction risk of the species throughout its range and within the Indo-Pacific and eastern Pacific SPR.

Comment 7: The Aquatic Resources Authority of Panama and the Ministry of the Environment of Panama submitted a comment supporting our proposal to list the giant manta ray as threatened. In terms of Panamanian data, they noted that landings are reported by general category and not by species, and, therefore, no information is available on the landing or occurrence of Manta species in the Panamanian fisheries. However, in general, rays appear to be a sporadic resource and possibly associated with net fishing, but this cannot be verified based on the available data.

While the data on the species is lacking in Panamanian waters, the Panama Environment Ministry and the Aquatic Resources Authority of Panama noted that the available information indicates that the species should be protected and pointed to the IATTC resolution (C-15-04) that prohibits the retention, transshipment, storage, landing, and sale of all devil and manta rays taken in its large-scale fisheries.

Response: We thank the Aquatic Resources Authority of Panama and the Ministry of the Environment of Panama for their comment in support of our conclusion that the species warrants listing as a threatened species under the ESA.

Comment 8: One commenter provided new information regarding the trophic level position of the giant manta ray and potential geographical differences in body sizes of the species. The commenter noted that the new information, which indicates that the diet of giant manta rays off Ecuador is predominantly of mesopelagic origin (as opposed to surface zooplankton) and that body size may vary by region due to prey availability or fishing pressure, should be taken into consideration during the development of critical habitat, recovery plans, and potential fishery regulations for giant manta rays.

Response: We reviewed the new information regarding the trophic level position (Burgess et al. 2016) and potential body-size differences (McClain et al. 2015); however, we do not find that this new information changes any of our conclusions regarding the threats to the giant manta ray or the extinction risk analysis of the species. In the development of critical habitat, recovery plans, or any other regulations for the conservation of the giant manta ray, we will consider this along with all other available information.

Comment 9: One commenter stated that NMFS neglected to define the “foreseeable future” and that without a temporal unit of measure to evaluate the species' future status, NMFS cannot rationally make conclusions about the future status.

Response: We disagree with the commenter that we did not define the “foreseeable future” as a temporal unit of measure. In fact, in the status review and proposed rule, we defined the “foreseeable future” as extending out several decades (>50 years). We note that because the giant manta ray is susceptible to a variety of threats for which different data are available, and which operate across different time scales, the foreseeable future is not reducible to a particular number of years, nor does the ESA require that we identify a specific year or period of time as the foreseeable future. We also noted in the status review that the appropriate time horizon for “foreseeable future” is not limited to the period that status can be quantitatively modeled or predicted within predetermined limits of statistical confidence. Because neither the ESA nor implementing regulations define “foreseeable future,” the term is ambiguous, and Congress has left broad discretion to the Secretary to determine what period of time is reasonable for each species. See “Memorandum Opinion: The Meaning of `Foreseeable Future' in Section 3(20) of the Endangered Species Act” (M-37021, Department of the Interior Office of the Solicitor, January 16, 2009). The appropriate timescales for analyzing various threats will vary with the data available about each threat. The foreseeable future considers factors such as the life history of the species (including generational length), habitat characteristics, availability of data, particular threats, ability to predict threats, and the ability to reliably forecast the effects of these threats and future events on the status of the species under consideration. In making our final listing determinations we must synthesize all available information and forecast the species' status into the future only as far as we reliably are able based on the best available scientific and commercial information and best professional judgment.

As discussed in the status review and proposed rule, we considered the giant manta ray's life history traits, noting that it would likely take more than a few decades for management actions to be realized and reflected in population abundance indices, and the impact of present threats to the species. We found that the time frame extending out several decades (>50 years) would allow for reasonable predictions regarding the impact of current levels of fishery-related mortality on the biological status of the giant manta ray as well as impacts on giant manta ray habitat from climate change and the potential effects on the status of the species.

Comment 10: One commenter stated that we inconsistently evaluated the threat of fisheries to the Atlantic portion of the giant manta ray population. The commenter notes that we concluded in the proposed rule that overutilization is unlikely to be a threat to M. birostris in the Atlantic Ocean; however, in the SPR analysis, we found that the impact of targeted catch and bycatch in the Atlantic Ocean would be a significant contributing factor to the extinction risk of the species without the members in the SPR. The commenter asserts that if we do not consider targeted catch and bycatch to be a threat to the species in the Atlantic Ocean, and if extirpation of giant manta rays in the Indo-Pacific and eastern Pacific would not result in a shift in effort to the Atlantic Ocean, then it is unlikely that extirpation of the SPR would result in increased impacts from fisheries in the remaining portions of the species' range.

Response: We disagree with the commenter that we inconsistently evaluated the threat of fisheries in the Atlantic portion of the giant manta ray's range and that, by extension, our conclusion regarding the identified SPR is not supported. Our determination that the Indo-Pacific and eastern Pacific portion is biologically “significant” rests on the contributions the members in that portion make to the overall viability of the species. It does not depend on any assumptions or projections as to shifts in threats that would occur if the members in the portion were hypothetically lost, but rather to the reduction in the species' ability to withstand continuing threats (e.g., fishing) without those members.

When we conducted the SPR analysis, we noted the absence of known areas exhibiting source-sink dynamics, which could affect the survival of the species, but that the largest subpopulations and records of individuals of the species come from the Indo-Pacific and eastern Pacific portion. In the Atlantic, the only available data on populations were records of over 70 individuals from the Flower Garden Banks Marine Sanctuary (Gulf of Mexico) and 60 manta rays from waters off Brazil. As mentioned previously, these observations, coupled with the low presence of the species in Atlantic fisheries data, led us to conclude that Atlantic M. birostris populations are likely small and sparsely distributed. New information submitted during the public comment period also provided numbers from off the east coast of Florida (>90 individuals); however, these data do not change our previous conclusion. If the species was hypothetically extirpated within the Indo-Pacific and eastern Pacific portion of the range, only the potentially small and fragmented Atlantic populations would remain. The demographic risks associated with small and fragmented populations discussed in the proposed rule, such as demographic stochasticity, depensation, and inability to adapt to environmental changes, would become significantly greater threats to the species as a whole, and coupled with the species' inherent vulnerability to depletion, indicate that even low levels of mortality would portend drastic declines in the population. Because of these risks, we concluded that without the animals in the Indo-Pacific and eastern Pacific, even minimal targeted fishing of the species by artisanal fishermen and bycatch mortality from the purse seine, trawl, and longline fisheries currently operating in the Atlantic would become significant contributing factors to the extinction risk of the species, placing the species in danger of extinction within the foreseeable future throughout its range. We found that the Indo-Pacific and eastern Pacific portion of the giant manta ray's range qualifies as “significant” under the SPR Policy because this portion's contribution to the viability of M. birostris is so important that, without the members in this portion, the giant manta ray would be likely to become in danger of extinction within the foreseeable future, throughout all of its range.

Comment 11: One commenter suggested that we should analyze whether there are more geographically-defined or regional populations of giant manta rays that could compose an SPR and analyze the status of those populations. The commenter asserts that there is no support to conclude that the entire Indo-Pacific and eastern Pacific portion of the giant manta range is an SPR and theorizes perhaps smaller portions could be SPRs that may be endangered instead of threatened.

Response: The commenter is correct that there are theoretically infinite ways to divide a species' range into potential SPRs. However, the SPR Policy does not require exhaustively analyzing all potential configurations, but rather sets out a rule of reason—that the Services will evaluate an area as a potential SPR only where there is substantial information indicating both that a particular portion may be biologically “significant” and that the species may be either endangered or threatened in that portion. We must base our decision to focus on a particular portion on the best available scientific and commercial information. The commenter does not provide information to support analyzing any particular portions that are likely to meet the two tests of the SPR Policy. Nor do we have additional information to support the identification of alternate, smaller SPRs. The commenter cited a study (McClain et al. 2015) that found some geographic variability in disc width sizes among giant manta ray individuals that may be associated with fishing pressure or differences in food availability; however, the study cautions that these differences may be a result of “uneven sampling across different regions or differences in methodologies.” Additionally, the authors stated that the size distribution was not “significantly different from normal” when the data were combined for all the regions. Other than this paper, the commenter makes only general suppositions regarding the potential presence of smaller portions that they believe may be significant under the SPR Policy, and cites to the status review and proposed rule statements regarding declining subpopulations in the Indo-Pacific and eastern Pacific as support.

During our analysis of the best available information, we found that threats were concentrated in the Indo-Pacific and eastern Pacific portion of the species' range, based on data from the smaller regional populations, and concluded that this portion meets the definition of an SPR under the SPR Policy. We note that the SPR Policy does not specify how portions are to be geographically identified or require exhaustive analyses to determine all possible geographic combinations of members or areas that may comprise an SPR. However, in our demographic and SPR analysis, we found no information to demonstrate that M. birostris is composed of source‐sink populations in any specific portion of its range, which could affect the survival of the species and may meet the specific standard of the SPR Policy to qualify it as biologically significant. Additionally, although we found data to suggest specific populations throughout the Indo-Pacific and eastern Pacific are in decline, there was no information to suggest that the loss of any one of these populations would place the species in danger of extinction, or render it likely to become so in the foreseeable future, throughout all of its range. The commenter did not provide any new information that suggests this would be the case. However, we did find that loss of all of the populations in the Indo-Pacific and eastern Pacific portion of the species' range would place the species in danger of extinction within the foreseeable future throughout all of its range. We state that the largest subpopulations and records of individuals of the species come from this portion and, without it, the species would have to rely only on its members in the potentially small and fragmented Atlantic populations for survival (see response to Comment 10 for further details). We therefore disagree with the commenter and find no rationale for conducting additional SPR analysis.

Comment 12: One commenter contended that the proposed rule failed to provide the required analysis and information to satisfy the legal requirements of the ESA in the context of the SPR analysis. The commenter asserted that there are two underlying errors: (1) NMFS failed to conduct a “detailed analysis” to support its conclusion that the Indo-Pacific and eastern Pacific portion of the giant manta ray's range is significant under the SPR Policy; and (2) NMFS failed to engage in a “separately” and similarly “detailed analysis” to determine whether the giant manta ray is endangered or threatened in the portion of its range found to be significant.

Response: In regards to the first claim, we disagree with the commenter that we failed to conduct a “detailed analysis” with respect to our determination that the Indo-Pacific and eastern Pacific portion of the giant manta ray's range is “significant” under the SPR Policy. As required by the SPR Policy, we examined whether the members of the species within the identified portion of the giant manta ray's range are so important to the viability of the species that, without them, the species would be in danger of extinction or likely to become so within the foreseeable future throughout all of its range. In conducting this analysis, we considered what the composition of the species would be if, hypothetically, members of the Indo-Pacific and eastern Pacific portion were extirpated (lost). We noted that the species would have to rely on only its members in the Atlantic for survival. As previously discussed in the proposed rule within the Demographic Risk Analysis section (82 FR 3708; January 12, 2017) and summarized in our response to Comment 10, the best available data suggest that the populations within the Atlantic are small and sparsely distributed, so the demographic risks of the species would increase to the point that the species would likely become endangered within the foreseeable future throughout its range. The demographic risk analysis, which examined abundance, spatial distribution, productivity, and diversity of giant manta rays, specifically discussed the risks associated with small and fragmented populations. We did not find it necessary to repeat this same information within the SPR analysis section but rather referred back to the previous, detailed discussion of demographic risks for small and sparsely distributed populations. While the commenter argues that this discussion falls short of the analytical standards set forth in the SPR Policy, specifically citing that the analysis must consider the contribution of the portion to the viability of the species using concepts of redundancy, resiliency and representation, we note that the SPR Policy also states that these concepts can be considered in terms of abundance, spatial distribution, productivity, and diversity of the species, as was done in this analysis. See 79 FR at 37581. Additionally, while the commenter suggests our discussion is conclusory and speculative, the commenter provides no additional data for us to consider. As such, we reiterate that we used the best available information, as required by the ESA, to conduct our SPR analysis, we fully analyzed all of that information, and we provided a detailed explanation of our analysis to support our conclusions.

With respect to the second claim, we disagree with the commenter that we failed to conduct a separate, detailed analysis of whether the giant manta ray is endangered or threatened in the portion of its range that we found to be “significant.” In conducting our extinction risk analysis, which considered all of the information from the detailed demographic risk analysis and threats assessment, we concluded that giant manta ray populations within the Indo-Pacific and eastern Pacific portion of its range (i.e., the SPR) are at a “moderate risk of extinction,” and we explained the basis for that conclusion in the proposed rule. We defined “moderate risk of extinction” within the status review (and cited to this definition within the proposed rule) as a species that “. . . is on a trajectory that puts it at a high level of extinction risk in the foreseeable future.” A “high level of extinction risk” was defined to mean that a species “is at or near a level of abundance, productivity, spatial structure, and/or diversity that places its continued persistence in question . . . [or] faces clear and present threats (e.g., confinement to a small geographic area; imminent destruction, modification, or curtailment of its habitat; or disease epidemic) that are likely to create imminent and substantial demographic risks.” In our overall determination, we found that a “moderate risk of extinction” equates to a threatened status, as the species is on a trajectory toward a status where its continued persistence is in question (where it is in danger of extinction) in the foreseeable future. To the extent there was any ambiguity in the analysis set forth in the proposed rule, we clarify here that the species is likely to become in danger of extinction within the foreseeable future within the Indo-Pacific and eastern Pacific portion, which correlates to “threatened” status. However, we cannot end our analysis there. The ESA also directs us to take into account conservation efforts after conducting a review of the status of the species and before making our determination. Therefore, we conducted the SPR analysis to evaluate the risk of extinction of the giant manta ray, but then proceeded to look at conservation efforts to determine whether the identified risk level is reduced as a result of such efforts before coming to our final determination. As we did not find that conservation efforts significantly altered the extinction risk for the giant manta ray to the point where it would not be in danger of extinction in the foreseeable future, we made our final determination that the giant manta ray is likely to become in danger of extinction within the foreseeable future throughout a significant portion of its range and therefore proposed to list it throughout its range as a threatened species.

Comment 13: Two commenters argued that the giant manta ray is in danger of extinction in the identified SPR and, therefore, should be listed as an endangered species. One commenter states that NMFS did not fully take into account the migratory nature of the giant manta ray and its large range when it proposed to list the species as threatened. The commenter cites to the declines of over 80 percent in certain commercial fishing hotspots in the SPR where giant manta rays feed and aggregate during migrations through the region, and argues that the impairment of these portions increases the vulnerability of the species to threats, placing the entire species in danger of extinction. The other commenter argues that the observed declines of 80-95 percent in the SPR should be interpreted as the SPR being at a high risk of extinction. One commenter also states that our own conclusions in the proposed rule satisfied the SPR Policy threshold for “likely to go extinct throughout a significant portion of its range.” Finally, the same commenter states that if NMFS lists the species as threatened, it has circumvented the analysis of determining whether the species is in danger of extinction in any portion of its range, instead basing its conclusion on the worldwide decline of the species.

Response: We disagree with both commenters. We also note that neither commenter provided any new information that was not already considered in the status review and proposed rule. As such, the commenters' claims are based on their own interpretation of the data and the SPR Policy. Below, we discuss our rationale for listing the giant manta ray as threatened within an SPR and explain key aspects of the SPR Policy.

First, we disagree with the statement that we did not consider the migratory nature of the giant manta ray or its large range when evaluating the species' extinction risk. In fact, its global range and the lack of available information on the abundance, life history, and ecology of the species in the Atlantic portion of this range was the reason why the declines observed in the Indo-Pacific and eastern Pacific portion were found not to translate to overall declines in the species throughout its entire range. We also considered the migratory nature of the species when we examined threats to the species. For example, in our discussion of the adequacy of existing regulatory mechanisms, we noted that current national protections for the species may not be adequate to protect it from overutilization, primarily because the species is pelagic and migratory and not confined to these protected areas. Additionally, when evaluating the overall risk of extinction of the species, we noted that although larger, and seemingly stable populations of the species still exist (including within areas of the Indo-Pacific and eastern Pacific), its migratory behavior means the species will continue to face fishing pressure throughout this portion through the foreseeable future. However, we disagree that declines of 80-95 percent in local populations within the SPR establish that the species is at a high risk of extinction. As stated in the proposed rule, despite these declines, larger subpopulations of the species still exist within the SPR. In fact, the only two available subpopulation estimates of M. birostris (from Mozambique and Ecuador) suggest that these populations are not so critically small in size that they are likely to experience extreme fluctuations that could lead to depensation or otherwise put the populations in danger of extinction at this time. In addition, we note that elsewhere in the SPR, current and accurate abundance estimates are unavailable for the giant manta ray, as the species tends to be only sporadically observed. In terms of other demographic risks, we note that the available information does not indicate any changes in the reproductive traits of the species or the natural rates of dispersal among populations (particularly within the SPR), or any evidence that the species is presently strongly influenced by stochastic or depensatory processes within the SPR. As such, the best available information does not indicate that the species is presently in danger of extinction within the SPR. However, due to continued fishing pressure within the SPR and the inadequacy of existing regulatory measures to control this fishing pressure, we concluded that overutilization is a threat to the remaining M. birostris populations that places the species within the SPR on a trajectory to be in danger of extinction in the foreseeable future.

Second, one of the commenters equates a statement in the proposed rule that extirpations of those populations that have experienced substantial declines and are still subject to fishing, particularly in the Indo-Pacific and eastern Pacific portions of the species' range, would inherently increase the overall risk of extinction for the entire species (see 82 FR 3694; January 12, 2017) to indicating that the species is “likely to go extinct” throughout an SPR. The commenter further goes on to incorrectly interpret our statement to mean that the Indo-Pacific and eastern Pacific portions are increasing the vulnerability of the species to threats to the point where the entire species is in danger of extinction. The statement in the proposed rule referenced by the commenter was made in our analysis of the demographic risk that current abundance and trends in abundance pose to the species. To clarify, the statement in the proposed rule that the hypothetical loss of the animals in the SPR would cause an “inherent increase” in the overall risk of extinction for the species does not mean that the species is actually now at the level where it is considered to be in danger of extinction. Rather, it means that the species would be at a higher risk of extinction if, hypothetically, the members in the portion were no longer in existence and providing contributions to the species than the species is currently. In fact, as already discussed, we concluded the species would likely become endangered within the foreseeable future without that portion.

Third, one of the commenters presents an argument that the entire species is in danger of extinction due to the impairment of the species within the SPR, and that we should therefore conclude that the giant manta ray is in danger of extinction throughout the SPR. Specifically, the commenter states that the species has experienced declines in certain fishing hotspots or aggregation areas and that “[t]he impairment of these portions of the species' range increases the vulnerability of the species to the threats it faces to the point that the entire species is in danger of extinction.” The commenter thus asserts that we should have concluded that the giant manta ray is endangered in an SPR, and that we inappropriately reached a threatened status conclusion simply because the species is not endangered in every part of its range. The commenter further states that if we list the species as threatened, it indicates that we only looked at the worldwide decline and did not consider whether the species is endangered in some portions of its range. Contrary to this assertion, we did consider whether the species was endangered or threatened in any significant portion of its range. As outlined previously, after evaluating the species' extinction risk throughout its range (worldwide), we reached a conclusion that the species was not threatened or endangered range wide. Thus, we next conducted an SPR analysis. As stated in the proposed rule, and in the SPR Policy (79 FR 37577; July 1, 2014), in order to identify only those portions that warrant further consideration under the SPR Policy, we must determine whether there is substantial information indicating both that (1) a particular portion of the range may be “significant” and (2) the species may be in danger of extinction in that portion or likely to become so within the foreseeable future. The policy further explains that, depending on the particular facts of the situation, it may be more efficient to address the question of whether any identified portions are “significant” first, but in other cases it will make more sense to examine the status of the species in the identified portions first. In the case of the giant manta ray, we first examined whether there were any portions of the range where the species is in danger of extinction (endangered) or likely to become so in the foreseeable future (threatened) and, finding that there were, we then evaluated whether those portions were “significant” under the SPR Policy. We concluded that the species is threatened in the Indo-Pacific and eastern Pacific portion of its range, and that this portion is “significant” under the SPR Policy. As previously explained, the best available information does not indicate that the species is presently in danger of extinction within the SPR; and therefore, we disagree with the commenter that the species should be listed as endangered.

Lastly, the commenter makes assertions about the status of the species that are not supported in the record. Specifically, the commenter states: “Under any reasonable reading of the ESA, the rapid decline of individuals in these areas and their likelihood of extinction in the foreseeable future would indicate that the species should be listed as endangered.” (Emphasis added.) The commenter's assertions that the species is likely to become extinct within the foreseeable future is not supported in the record. We found that the best available scientific and commercial information indicates that the species is likely to become “endangered” (in danger of extinction) “within the foreseeable future” within the SPR. 16 U.S.C. 1532(20). Thus, the species meets the definition of “threatened” within the SPR. We have not stated, and could not on the present record conclude, that the species is “likely to become extinct within the foreseeable future”—a much more grave prediction—either within the SPR or throughout its range. (Note that a finding that the portion is “significant,” while based on an assumed hypothetical loss of the members in the portion for the sake of analysis, is not actually a prediction of such loss.) Because we have found that the species is threatened in the SPR, per the SPR Policy, we are listing the species as threatened throughout its range.

To summarize from the proposed rule, after examining and considering all of the available information on the species, including life history and abundance data as well as current and future threats to the species, we concluded that the species was not in danger of extinction or likely to become so within the foreseeable future throughout its range. However, applying the SPR Policy, we determined that the Indo-Pacific and eastern Pacific portion of the species' range qualified as an SPR. In evaluating the extinction risk of the species within this portion, we took into consideration the demographic risks of the species, the information on observed declines of the species in certain fishing areas, and the factors under section 4(a)(1). However, we also noted that there is considerable uncertainty regarding the current abundance of M. birostris throughout this portion, with evidence that large subpopulations of the species still exist, such as off Mozambique and Ecuador. The proposed rule also mentioned that numbers of giant manta rays identified through citizen science in Thailand's waters have been increasing over the past few years, and actually surpass the estimate of identified giant mantas in Mozambique, possibly indicating that Thailand may be home to the largest aggregation of giant manta rays within the Indian Ocean. Because neither commenter provided any new information to consider regarding abundance, population declines, or threats in this SPR, our conclusion that the species is likely to become in danger of extinction within the foreseeable future, and thus is threatened, within the SPR remains the same, and, per the SPR Policy, we are listing it is as threatened throughout its range under the ESA.

Comment 14: One commenter states that the intention to list the giant manta ray as threatened is unwarranted due to an almost complete lack of scientific evidence. The commenter notes that there is no conclusive threat in North American waters, and that the threatened conclusion is based on one article in the literature. The commenter further goes on to state that there are no fisheries for manta rays in North American waters or evidence of the species being overfished in U.S. waters, and notes that manta rays are protected from direct fishing pressure in Mexico, Brazil, and Florida and are listed on Appendix II of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).

Response: We disagree with the commenter that the listing of the giant manta ray as threatened is unwarranted. We also disagree that our conclusion was based on one article in the literature. As noted in the proposed rule, we considered the best available scientific and commercial information including the petition, public comments submitted on the 90-day finding (81 FR 8874; February 23, 2016), the draft status review report (Miller and Klimovich 2016), and other published and unpublished information, and have consulted with species experts and individuals familiar with manta rays to come to our determination. Based on the available data, we concluded that the giant manta ray is not in danger of extinction or likely to become so throughout its entire range, but is threatened within an SPR. As thoroughly discussed in the proposed rule and status review, the giant manta ray faces concentrated threats within the SPR, with estimated take of the species frequently greater than the observed individuals in the area and evidence of declines in sightings and landings of the species of up to 95 percent in some places. Efforts to address overutilization of the species through regulatory measures are inadequate within the SPR, with targeted fishing of the species despite prohibitions and bycatch measures. Based on the demographic risks and threats to the species within the SPR, we determined that the species is likely to become in danger of extinction within the foreseeable future throughout the SPR.

We do not posit that that there are fisheries for manta rays in North American waters, or that the species is being overfished in U.S. waters. As the final status review (Miller and Klimovich 2017) and proposed rule state, manta rays are observed as bycatch in the purse seine, trawl, and longline fisheries operating in the Atlantic Ocean. In our analysis of the species' status throughout its entire range, we conclude that it is unlikely that overutilization as a result of bycatch mortality is a significant threat to the species in the Atlantic Ocean; however, we caveat this statement with the fact that information is severely lacking on population sizes and distribution of M. birostris in the Atlantic as well as current catch and fishing effort on the species throughout this portion of its range. However, as noted in our response to Comment 10, in conducting the SPR analysis, we found that even minimal targeted fishing of the species by artisanal fishermen and bycatch mortality from the purse seine, trawl, and longline fisheries operating in the Atlantic would become significant contributing factors to the extinction risk of the species if the species was extirpated within the SPR, which would place the species in danger of extinction within the foreseeable future throughout its range.

Comment 15: Two commenters stated that when NMFS finalizes its decision on the giant manta ray, it should also “list” the reef manta ray under the similarity of appearance provision in the ESA. One of the commenters notes that both species are morphologically similar and that products from the giant and reef manta rays are practically impossible to distinguish in the international trade market (citing Wu 2016).

The other commenter notes the exponential demand for manta ray gill plates in the trade and argues that the gill plates in all nine species of manta rays look “almost identical.” The commenter further states that once a manta ray gill plate has been removed and dried, it is “almost impossible” to identify it to species. The commenter asserts that release of the “Field Identification Guide of the Prebranchial Appendages (Gill Plates) of Mobulid Rays for Law Enforcement and Trade Monitoring Applications” by the Manta Trust non-profit (Manta Trust 2011) was evidence of “how difficult it is for law enforcement to distinguish between each species gill plates” and that this is an “extremely difficult task.” The commenter further goes on to state that law enforcement will also be unable to use capture locations or depths to help determine the species of manta ray because they inhabit an overlapping range of habitat. The commenter contends that the difficulty in distinguishing between the reef and giant manta ray gill plates is an additional threat to the giant manta ray because fishermen will be able to continue to target the giant manta ray and pass off the gill plates as reef manta rays. Additionally, the commenter contends that listing the reef manta ray will “substantially facilitate the enforcement and further the policy” of the ESA because it will allow the giant manta ray population to increase and deter fishermen from catching them due to the higher likelihood that they will be caught by law enforcement. The commenter concludes that the reef manta ray must also be protected under the ESA to avoid misidentification of the manta ray gill plates and to discourage fishermen from disregarding the species of manta ray that they catch.

Response: Section 4 of the ESA (16 U.S.C. 1533(e)) provides that the Secretary may, by regulation of commerce or taking, and to the extent he deems advisable, treat any species as an endangered or threatened species even though it is not listed pursuant to Section 4 of the ESA when the following three conditions are satisfied: (1) Such species so closely resembles in appearance, at the point in question, a species which has been listed pursuant to Section 4 of the ESA that enforcement personnel would have substantial difficulty differentiating between the listed and unlisted species; (2) the effect of this substantial difficulty is an additional threat to an endangered or threatened species; and (3) such treatment of an unlisted species will substantially facilitate the enforcement and further the policy of the ESA (16 U.S.C. 1533(e)(A)-(C)).

In terms of the similarity of appearance of the gill plates assertion by the commenter, we first note that there are not nine species of manta rays, as stated by one of the commenters, but nine species of mobula rays. Manta rays are currently split into two species. We assume that the commenter was also referring to mobula rays in their statement that “all nine species of manta rays look almost identical.” Furthermore, the Manta Trust field identification guide cited by the commenter (Manta Trust 2011) explicitly states that “[g]ill plates from the two species of manta rays can be visually identified from the other species.” The guide explains that if the gill plate size is larger than 30 cm, is uniform brown or black in color, and has smooth filament edgings, then it belongs to a manta species (Manta Trust 2011). The guide concludes that “Manta ray gill plates can easily be distinguished from the traded mobula ray species' gill plates using this simple visual ID Guide. The size, colour patterning, and filament edging of the gill plates can be used as an effective and easy indicator to determine the species of orgin [sic]” (Manta Trust 2011). Based on this new information, we do not find that enforcement officials will have difficulty identifying manta ray gill plates from other mobula ray gill plates.

In terms of identifying manta ray gill plates to species level, the information provided by the commenters did not discuss this issue, nor do we have information available in our files that would allow us to conclude that enforcement personnel would have substantial difficulty in attempting to differentiate between the two manta ray species. Additionally, even if these products from the two species closely resemble each other in appearance, we do not find that this resemblance poses an additional threat to the giant manta ray, nor do we find that treating the reef manta ray as an endangered or threatened species will substantially facilitate the enforcement of current ESA prohibitions or further the policy of the ESA, for the reasons explained below.

As described in the proposed rule, the significant operative threats to the giant manta ray are overutilization by foreign commercial and artisanal fisheries in an SPR (i.e., the Indo-Pacific and Eastern Pacific) and inadequate regulatory mechanisms in foreign nations to protect these manta rays from the heavy fishing pressure and related mortality in these waters outside of U.S. jurisdiction. In fact, the take and trade of the species by persons under U.S. jurisdiction were not identified as significant threats to the giant manta ray. As such, we do not find that treating the reef manta ray as a threatened species would substantially further the conservation of the giant manta ray under the ESA.

Regarding the potential take of giant manta rays by U.S. fishermen, which is primarily in the form of bycatch in U.S. fisheries, we do not find that the reef manta ray so closely resembles the giant manta ray in appearance such that enforcement personnel would not be able to differentiate between these two species when caught or landed. In fact, as noted in the status review, many physical characteristics, including coloration, dentition, denticles, spine morphology, and size, can be used to distinguish between the giant manta ray and the reef manta ray. For example, the chevron color variant of M. birostris can be distinguished from the chevron M. alfredi color type by its dark (black to charcoal grey) mouth coloration, medium to large black spots that occur below its fifth gill slits, and a grey V-shaped colored margin along the posterior edges of its pectoral fins (Marshall et al. 2009). In contrast, the chevron M. alfredi has a white to light grey mouth, dark spots that are typically located in the middle of the abdomen, in between the five gill slits, and dark colored bands on the posterior edges of the pectoral fins that only stretch mid-way down to the fin tip (Marshall et al. 2009). Additionally, only M. birostris has a caudal thorn and prominent dermal denticles that gives their skin a much rougher appearance than that of M. alfredi (Marshall et al. 2009). Based on these distinguishing characteristics, we do not find that enforcement personnel would have substantial difficulty in attempting to differentiate between the giant and reef manta ray species in the bycatch of U.S. fisheries. Furthermore, we note that the reef manta ray does not occur in the Atlantic Ocean, so any manta rays caught by U.S. fisheries in this portion of the giant manta ray range would easily be identified as M. birostris.

Regarding trade, the main threat to the giant manta ray is the international mobulid gill plate trade. As stated in the status review and proposed rule, since the 1990s, the gill plate market has significantly expanded, which has increased the demand for manta ray products, particularly in China. These gill plates are used in Asian medicine and are thought to have healing properties. However, as noted in the final status review (Miller and Klimovich 2017) and proposed rule, Indonesia, Sri Lanka, and India presently represent the largest manta ray exporting range state countries, with Chinese gill plate vendors also reporting mobulid gill plates from other regions as well, including Malaysia, China, Taiwan, Vietnam, South Africa, Thailand, Australia, Philippines, Mexico, South America (e.g., Brazil), the Middle East, and the South China Sea (CMS 2014; Hau et al. 2016; O'Malley et al. 2017). We found no information to indicate that the United States has a significant, or even any, presence in the international mobulid gill plate trade.

Additionally, and as explained in the Protective Regulations Under Section 4(d) of the ESA section below, because we find that the United States is not a significant contributor to the threats facing the giant manta ray, we have determined that protective regulations pursuant to section 4(d) are not currently necessary and advisable for the conservation of the species. Therefore, even if there may be some degree of difficulty in differentiating reef manta rays and giant manta rays, or their gill plates, we do not find that U.S. enforcement personnel will be faced with this task to the extent that necessitates treating the reef manta ray as a listed species to further the conservation of the giant manta ray under the ESA. Ultimately, given the threats to the species as discussed in the final status review (Miller and Klimovich 2017) and proposed rule, any conservation actions for giant manta ray that would bring it to the point that the measures of the ESA are no longer necessary will need to be implemented by foreign nations.

For the reasons above, we do not find it advisable to further regulate the commerce or taking of the reef manta ray by treating it as a threatened species based on similarity of appearance to the giant manta ray.

Comment 16: Two commenters requested that we consider not issuing protective regulations pursuant to section 4(d) of the ESA as U.S. fisheries are not contributing significantly to the primary threat of overutilization of the giant manta ray. One of the commenters noted that there are no directed fisheries for giant manta rays in the U.S. Western Pacific Region, and incidental catches are rare. Additionally, the commenter pointed out that we considered the impact on the giant manta ray from the Hawaii-based longline and American Samoa longline fisheries to be minimal. Similarly, the other commenter asserted that the Hawaii-based commercial longline fisheries pose no risk to the giant manta ray and, therefore, application of the take prohibition to these fisheries is not necessary or advisable for the conservation of the species. Another commenter urged NMFS to consider exempting a very small number of giant manta rays for collection for public aquarium display.

In contrast, one commenter urged NMFS to promulgate a section 4(d) rule to make it unlawful to take a giant manta ray, especially for its gill plate. Additionally, the commenter stated that the rule should prohibit the trade or sale of manta ray gill plates in the United States and also include habitat protection to ensure ecosystems that giant manta rays depend on remain intact. Similarly, another commenter formally petitioned NMFS under the Administrative Procedure Act (APA), 5 U.S.C. 553(e), to extend the ESA section 9(a) prohibitions to giant manta rays.

Response: Under the ESA, if a species is listed as endangered, the ESA section 9 prohibitions automatically apply and any “take” of, or trade in, the species is illegal, subject to certain exceptions. In the case of a species listed as threatened, section 4(d) of the ESA gives the Secretary discretion to implement protective measures the Secretary deems necessary and advisable for the conservation of species. Therefore, for any species listed as threatened, we can impose any or all of the section 9 prohibitions if we determine such measures are necessary and advisable for the conservation of the species.

However, after a review of the threats and needs of the giant manta ray, we have determined that protective regulations pursuant to section 4(d) are not currently necessary and advisable for the conservation of the species. The basis for this determination is provided in detail in the Protective Regulations Under Section 4(d) of the ESA section below; please see that section for more information.

Comment 17: Two commenters stated that NMFS should designate critical habitat in U.S. waters concurrently with the final listing. One commenter states that these areas should include aggregation sites along the west coast of the United States and the Pacific Trust Territories (the Marianas, the Carolines, and the Marshalls Island groups), the east coast of the United States, the coasts of Hawaii, and anywhere else the species lives in U.S. waters. The commenter notes that there are at least two known aggregation sites that should be designated with the final listing: The area within and surrounding the Flower Garden Banks National Marine Sanctuary, and a site off the coast of St. Augustine, Florida. Similarly, the other commenter also mentions that giant manta rays often use the Flower Gardens Banks National Marine Sanctuary and may also aggregate off the east coast of South Florida.

Response: Section 4(a)(3)(a) of the ESA (16 U.S.C. 1533(a)(3)(A)) requires that, to the extent prudent and determinable, critical habitat be designated concurrently with the listing of a species. However, if critical habitat of such species is not then determinable, the Secretary may extend the time period for designation by one additional year (16 U.S.C. 1533(b)(6)(C)(ii); 50 CFR 424.17(b)).

Critical habitat is defined in section 3 of the ESA (16 U.S.C. 1532(3)) as: (1) The specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the ESA, on which are found those physical or biological features (a) essential to the conservation of the species and (b) that may require special management considerations or protection; and (2) specific areas outside the geographical area occupied by a species at the time it is listed upon a determination that such areas are essential for the conservation of the species.

In the proposed rule to list the giant manta ray (82 FR 3694; January 12, 2017), we requested information describing the quality and extent of habitats for the giant manta ray, as well as information on areas that may qualify as critical habitat for the species in U.S. waters. We stated that specific areas that include the physical and biological features essential to the conservation of the species, where such features may require special management considerations or protection, should be identified. While the commenters provided the general locations of known giant manta ray aggregation areas within the U.S. Gulf of Mexico, and a potential aggregation area off the U.S. east coast, the commenters did not provide, nor do we have, any information on the physical or biological features of these sites that might make these aggregation areas essential to the conservation of the species. Additionally, the commenters provided no information on specific areas that may meet the definition of critical habitat within the other locations that they listed. We also note that critical habitat shall not be designated in foreign countries or other areas outside U.S. jurisdiction (50 CFR 424.12(g)); and, therefore, we cannot designate critical habitat in the waters of the commenter's requested Pacific Trust Territories, specifically the Republic of the Marshall Islands, Federated States of Micronesia, or the Republic of Palau.

We received no other information regarding critical habitat from public comments. After reviewing the comments provided and the best available scientific information, we conclude that critical habitat is not determinable at this time because data sufficient to perform the required analyses are lacking. Specifically, we find that sufficient information is not currently available to: (1) Identify the physical and biological features essential to conservation of the species at an appropriate level of specificity, particularly given the uncertainty surrounding the species' life history characteristics (e.g., pupping and nursery grounds remain unknown) and migratory movements, (2) determine the specific geographical areas that contain the physical and biological features essential to conservation of the species, particularly given the global range of the species, and (3) assess the impacts of the designation. (See also the Critical Habitat section for additional information.) However, public input on features and areas in U.S. waters that may meet the definition of critical habitat for the giant manta ray is invited. Additional details about specific types of information sought are provided in the Information Solicited section later in this document. Input may be sent to the Office of Protected Resources in Silver Spring, Maryland (see ADDRESSES). Information received will be considered in evaluating potential critical habitat for this species.

Comment 18: One commenter noted that NMFS should develop a comprehensive recovery plan following the ESA listing of the giant manta ray.

Response: Once a species is listed as threatened or endangered, section 4(f) of the ESA generally requires that we develop and implement recovery plans that must, to the maximum extent practicable, identify objective, measurable criteria which, when met, would result in a determination that the species may be removed from the list. Development of a recovery plan will be considered through a separate effort subsequent to this rulemaking.

The Federal Register document announcing the 12-month finding on the petition to list giant and reef manta rays under the ESA (82 FR 3694; January 12, 2017) solicited public comments only on the proposal to list the giant manta ray as a threatened species. However, we also received a few comments from one commenter concerning the final 12-month “not warranted” determination for the reef manta ray. Although that determination is a final agency action and thus not subject to public comment or an obligation to respond to such comment, we nevertheless reviewed the comments on the 12-month “not warranted” determination and take this opportunity to provide responses for additional clarity below.

Comment 19: The commenter stated that the SPR analysis was inadequate, and that NMFS did not identify any portion of the range as biologically significant to determine whether the reef manta ray may be in danger of extinction in that portion now or in the foreseeable future. Thus, the commenter asserts that NMFS relied on an inadequate SPR analysis to conclude that the risk of extinction is low throughout the species' entire range.

Response: We disagree with the commenter regarding the adequacy of the SPR analysis. As discussed above, the SPR Policy explains that, after identifying any portions that warrant further consideration, depending on the particular facts of the situation, NMFS may find it is more efficient to address the question of whether any identified portions are “significant” first, but in other cases it will make more sense to examine the status of the species in the identified portions first. In the case of the reef manta ray, we chose to look at the second issue first; that is, we first considered whether the species is in danger of extinction, or likely to become so in the foreseeable future, in any particular portion of its range. We found that in waters off Mozambique and the Philippines, M. alfredi has suffered declines from targeted fishing, with this overutilization likely causing the members in this portion to experience a higher risk of extinction relative to the species overall. Additionally, we identified waters off Indonesia, Papua New Guinea, and Kiribati as portions of the species range where the species is likely at higher risk of extinction relative to the species overall, due to concentrated threats. Having concluded the species is likely at higher risk than the overall species in these portions (but without reaching the point of definitively concluding that the species is threatened or endangered there for the time being), we moved on to the second part of the SPR analysis, which requires us to determine whether any of these portions meet the SPR Policy's test of “significant.” Again, as stated in the proposed rule, we found that the hypothetical loss of the members of the species within any or all of these portions would not put the entire species in danger of extinction throughout all of its range now or in the foreseeable future. This is because the remaining populations, which include some of the largest identified M. alfredi populations, benefit from national protections that prevent overutilization of the species and are not showing evidence of decline. Because we did not have any evidence to establish that the loss of animals in any or all of the at-risk portions would place the entire species in danger of extinction now or in the foreseeable future, there was no basis to conclude any of the potentially at-risk portions were “significant.” Because the “significance” prong of the analysis was not met, it was unnecessary to continue to evaluate whether the species may be threatened or endangered in those portions. We also note that the commenter did not provide any new information regarding these portions or their significance under the SPR Policy. As such, we find that our SPR analysis was adequate.

Comment 20: The commenter stated that we did not analyze any potential DPSs for reef manta rays and suggests that the reef manta ray population in the Indo-Pacific may comprise a potential SPR and DPS.

Response: The commenter did not provide any species-specific information to indicate that potential DPSs of reef manta rays exist, nor do we have any such information. We are not required to consider listing DPSs of a species unless we are petitioned to evaluate a specific population or populations for listing as a DPS(s), and the petitioner has provided substantial information that the population(s) may be warranted for listing as DPS(s). Furthermore, as stated in the DPS Policy, Congress instructed the Services that listing of DPSs is to be done sparingly and only when the biological evidence supports such a listing (61 FR 4722; February 7, 1996). In the status review, we state that additional studies (including genetic sampling) are needed to better understand the population structure of the species throughout its range (particularly given the uncertainties in the species' range, habitat use, and life history characteristics), indicating a lack of available data that may provide insight into the “discreteness” or “significance” of populations under the DPS Policy.

We also note that the commenter did not provide any species-specific information to support the suggestion that the reef manta ray population in the Indo-Pacific may comprise a potential SPR and DPS. Under the SPR Policy, if a species is found to be endangered or threatened throughout a significant portion of its range, and the population(s) in that significant portion is a valid DPS, we will list the DPS rather than the entire taxonomic species or subspecies. However, because we did not identify any SPRs for reef manta rays, there was no basis for evaluating whether any SPRs were DPSs.

Comment 21: The commenter asserted that if we list the giant manta ray under the ESA, then we must also propose to “list” the reef manta ray pursuant to the ESA's similarity of appearance provision. The commenter stated that they are petitioning NMFS to reconsider listing the reef manta ray under the ESA under the APA, 5 U.S.C. 553(e).

Response: The similarity of appearance provision of the ESA allows the Secretary to treat non-listed species as if they were listed species, if certain conditions are met and to the extent the Secretary determines it is advisable to do so. We disagree with the commenter's request to apply this provision to the reef manta ray and address this issue more fully in our response to Comment 15. With regard to reconsidering the listing of the reef manta ray under the APA, we do not find the requested action to be warranted at this time. In making our 12-month finding that the reef manta ray does not warrant listing, we considered the best available information on the species' biology, ecology, life history, threats, and demographic risks to determine the species' overall risk of extinction. The commenter did not provide any new information to consider in support of their request, and, as such, our conclusion remains the same. We would also like to note that petitions for listing species under the ESA (including reconsiderations) must follow the implementing regulations issued jointly by the Services at 50 CFR 424.14.

We did not receive, nor did we find, data or references that presented substantial new information that would cause us to change our proposed listing determination. We did, however, make several revisions to the final status review report (Miller and Klimovich 2017) to incorporate, as appropriate, relevant information received in response to our request for public comments and information we collected after publication of the proposed rule.

Specifically, we updated the status review to include new information regarding: The seasonal occurrence of manta rays off the northern Yucatan peninsula (Hacohen-Domené et al. 2017), the diet and trophic levels of the two manta ray species (Couturier et al. 2013; Burgess et al. 2016; Rohner et al. 2017a; Stewart et al. 2017), life history parameters for M. birostris (Nair et al. 2015; Rohner et al. 2017a), personal observations (F. Young, pers. comm. 2017) and estimates of manta rays off the east coast of Florida (Kendall 2010), time-series analysis of manta ray sightings off Mozambique (Rohner et al. 2017b), gill plate market prices and trends (Hau et al. 2016; O'Malley et al. 2017), landings of mobula rays in India (Nair et al. 2015; Zacharia et al. 2017), landings of manta rays off New Zealand (Jones and Francis 2017), landings of manta rays off Peru (Alfaro-Cordova et al. 2017), bycatch (NMFS 2016) and CPUE (Western Pacific Regional Fisheries Management Council pers. comm. 2017, citing NMFS Pacific Islands Observer Program unpublished data) of manta rays in U.S. fisheries, longline effort in the Pacific (Williams and Terawasi 2016), manta ray catch and bycatch data in the eastern Pacific (Hall and Roman 2013; IATTC 2016), and PSA results for giant manta rays in the eastern Pacific Ocean (Duffy and Griffiths 2017). As noted above, with more detailed discussion in many of the previous comment responses, consideration of this new information did not alter any conclusions (and in some cases further supported our conclusions) regarding the threat assessment or extinction risk analysis for either manta ray species. Thus, the conclusions contained in the status review and determinations based on those conclusions in the proposed rule are reaffirmed in this final action.

We are aware that a recent taxonomic study has suggested that Manta birostris and Manta alfredi may actually be closely related to the Chilean devil ray (Mobula tarapacana), with genetic analyses that demonstrate support for nesting these species under the genus Mobula rather than Manta (White et al. 2017). However, we note that the study still recognized both manta rays as distinct species (but referred to them as Mobula birostris and Mobula alfredi). Until the genus name change is formally accepted by the scientific community, we continue to recognize Manta birostris as a species under the genus Manta. As such, we consider Manta birostris to be a taxonomically-distinct species that meets the definition of “species” pursuant to section 3 of the ESA and is eligible for listing under the ESA.

As stated previously and as discussed in the proposed rule (82 FR 3694; January 12, 2017), we considered whether any one or a combination of the five threat factors specified in section 4(a)(1) of the ESA are contributing to the extinction risk of the giant manta ray and result in the species meeting the definition of “endangered species” or “threatened species.” The comments that we received on the proposed rule, as well as new information we collected since publication of the proposed rule, provided information that was either already considered in our analysis, was not substantial or relevant, or was consistent with or reinforced information in the status review and proposed rule, and thus, did not change our conclusions regarding any of the section 4(a)(1) factors or their interactions. Therefore, all of the information, discussion, and conclusions regarding the factors affecting the giant manta ray contained in the final status review report (Miller and Klimovich 2017) and the proposed rule is reaffirmed in this final action.

As discussed previously, the status review evaluated the demographic risks to the giant manta ray according to four categories—abundance and trends, population growth/productivity, spatial structure/connectivity, and genetic diversity. As a concluding step, after considering all of the available information regarding demographic and other threats to the species, we rated the species' extinction risk according to a qualitative scale (high, moderate, and low risk). The information received from public comments on the proposed rule, as well as new information we collected since publication of the proposed rule, was either already considered in our analysis, was not substantial or relevant, or was consistent with or reinforced information in the status review report and proposed rule, and thus, did not affect our extinction risk evaluation for the giant manta ray. Our conclusion regarding the extinction risk for the giant manta ray remains the same. Therefore, all of the information, discussion, and conclusions on the extinction risk of the giant manta ray contained in the final status review report and the proposed rule is reaffirmed in this final action.

In addition to regulatory mechanisms (considered under ESA section 4(a)(1)(D)), we considered other efforts being made to protect giant manta rays (pursuant to ESA section 4(b)(1)(A)). We considered whether such protective efforts sufficiently ameliorated the identified threats to the point that they would alter the conclusions of the extinction risk analysis for the species. None of the information we received on the proposed rule affected our conclusions regarding conservation efforts to protect the giant manta ray. Thus, all of the information, discussion, and conclusions on the protective efforts for the giant manta ray contained in the final status review report and proposed rule are reaffirmed in this final action.

We have reviewed the best available scientific and commercial information, including the petition, the information in the final status review report (Miller and Klimovich 2017), the comments of peer reviewers, public comments, and information that has become available since the publication of the proposed rule (82 FR 3694; January 12, 2017). None of the information received since publication of the proposed rule altered our analyses or conclusions that led to our determination for the giant manta ray. Therefore, the determination in the proposed rule is reaffirmed in this final rule and stated below.

Based on the best available scientific and commercial information, and after considering efforts being made to protect M. birostris, we find that the giant manta ray is not currently endangered or threatened throughout its range. However, the giant manta ray is likely to become an endangered species within the foreseeable future throughout a significant portion of its range (the Indo-Pacific and eastern Pacific portion). This portion satisfies the test for “significance” from the SPR Policy because, without the members in that portion, the species would be likely to become in danger of extinction in the foreseeable future throughout all of its range. For the reasons discussed in the proposed rule, we do not find that this significant portion meets the criteria of a DPS. Therefore, we have determined that the giant manta ray meets the definition of a threatened species and, per the SPR Policy, list it is as such throughout its range under the ESA.

Conservation measures provided for species listed as endangered or threatened under the ESA include recovery actions (16 U.S.C. 1533(f)); Federal agency requirements to consult with NMFS under section 7 of the ESA to ensure their actions are not likely to jeopardize the species or result in adverse modification or destruction of critical habitat should it be designated (16 U.S.C. 1536); designation of critical habitat, if prudent and determinable (16 U.S.C. 1533(a)(3)(A)); and prohibitions on taking and certain other activities (16 U.S.C. 1538, 1533(d)). In addition, recognition of the species' imperiled status through listing promotes conservation actions by Federal and State agencies, foreign entities, private groups, and individuals.

Section 7(a)(2) (16 U.S.C. 1536(a)(2)) of the ESA and NMFS/USFWS regulations (50 CFR part 402) require Federal agencies to consult with us to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of listed species or destroy or adversely modify critical habitat. Our section 7 regulations require the responsible Federal agency to initiate formal consultation if a Federal action may affect a listed species or its critical habitat (50 CFR 402.14(a)). Examples of Federal actions that may affect the giant manta ray include: Fishery harvest and management practices, military activities, alternative energy projects, dredging in known giant manta ray aggregation sites (e.g., observed feeding and cleaning sites), point and non-point source discharge of persistent contaminants in known giant manta ray aggregation sites, toxic waste and other pollutant disposal in known giant manta ray aggregation sites, and shoreline development in known giant manta ray aggregation sites.

Critical habitat is defined in section 3 of the ESA (16 U.S.C. 1532(5)) as: (1) The specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the ESA, on which are found those physical or biological features (a) essential to the conservation of the species and (b) that may require special management considerations or protection; and (2) specific areas outside the geographical area occupied by a species at the time it is listed upon a determination that such areas are essential for the conservation of the species. “Conservation” means the use of all methods and procedures needed to bring the species to the point at which listing under the ESA is no longer necessary. 16 U.S.C. 1532(3). Section 4(a)(3)(A) of the ESA (16 U.S.C. 1533(a)(3)(A)) requires that, to the maximum extent prudent and determinable, critical habitat be designated concurrently with the listing of a species. Designations of critical habitat must be based on the best scientific data available and must take into consideration the economic, national security, and other relevant impacts of specifying any particular area as critical habitat.

At this time, we find that critical habitat for the giant manta ray is not determinable because data sufficient to perform the required analyses are lacking. Specifically, we find that sufficient information is not currently available to: (1) Identify the physical and biological features essential to conservation of the species at an appropriate level of specificity, particularly given the uncertainty regarding habitats required to support its life history (e.g., pupping and nursery grounds remain unknown) and migratory movements, (2) determine the specific geographical areas that contain the physical and biological features essential to conservation of the species, particularly given the global range of the species, and (3) assess the impacts of the designation. Therefore, public input on features and areas in U.S. waters that may meet the definition of critical habitat for the giant manta ray is invited. Additional details about specific types of information sought are provided in the Information Solicited section later in this document. Input may be sent to the Office of Protected Resources in Silver Spring, Maryland (see ADDRESSES). Please note that we are not required to respond to any input provided on this matter.

We are listing the giant manta ray (Manta birostris) as a threatened species. In the case of threatened species, ESA section 4(d) gives the Secretary discretion to determine whether, and to what extent, to extend the prohibitions of section 9(a)(1) of the ESA (16 U.S.C. 1538(a)(1)) to the species, and authorizes us to issue regulations necessary and advisable for the conservation of the species. We have evaluated the needs of and threats to the giant manta ray and have determined that protective regulations pursuant to section 4(d) are not currently necessary and advisable for the conservation of the species.

As described in the proposed rule, the significant operative threats to the giant manta ray are overutilization by foreign commercial and artisanal fisheries in a significant portion of its range (i.e., the Indo-Pacific and eastern Pacific) and inadequate regulatory mechanisms in foreign nations to protect these manta rays from the heavy fishing pressure and related mortality in these waters outside of U.S. jurisdiction. The take and trade of the species by persons under U.S. jurisdiction were not identified as significant threats to the giant manta ray.

Regarding potential take, as stated in the proposed rule, giant manta rays may be caught as bycatch in U.S. fisheries; however, given the rarity of the species in the U.S. bycatch data, current levels were found to be negligible and determined to only have a minimal impact on the status of the giant manta ray. Furthermore, in many portions of the species' range, and particularly in the SPR, current U.S. fishery regulations as well as U.S. state and territory regulations prohibit the retention of manta rays by persons under U.S. jurisdiction. For example, in the eastern Pacific Ocean, U.S. commercial fishing vessels are prohibited from retaining on board, transshipping, landing, storing, selling, or offering for sale any part or whole carcass of a mobulid ray caught by vessel owners or operators in the IATTC Convention Area (81 FR 50401, August 1, 2016). The state of Hawaii prohibits any person from knowingly capturing or killing a manta ray within state marine waters (HI Rev Stat 188-39.5 (2016)), and in Florida, it is illegal to harvest, possess, land, purchase, sell, or exchange any or any part of species of the genus Manta and Mobula in state waters (FL Admin Code 68B-44.008). In Guam, it is unlawful for any person to possess, sell, offer for sale, take, purchase, barter, transport, export, import, trade or distribute ray parts (including manta rays), unless for subsistence, traditional, or cultural sharing purposes (Article 1, Chapter 63 of Title 5, Guam Code Annotated, Sec. 63114.2), and in the Commonwealth of the Northern Mariana Islands, it is illegal to feed, take, possess, sell, purchase, barter, offer to sell, purchase or barter, transport, export or import, any ray (including manta rays), alive or dead, or any part thereof (Pub. L. 15-124). Additionally, as noted in the final status review report (Miller and Klimovich 2017), established Marine Protected Areas (MPAs) that limit or prohibit fishing also exist that cover areas with observed giant manta ray presence, including off Guam (Tumon Bay Marine Preserve), within the Gulf of Mexico (Flower Garden Banks National Marine Sanctuary), and in the Central Pacific Ocean (Pacific Remote Islands Marine National Monument).

Overall, current management measures that are in place for fishermen under U.S. jurisdiction appear to directly and indirectly contribute to the infrequency of interactions between U.S. fishing activities and the threatened giant manta ray. As such, we do not believe these activities are contributing significantly to the identified threats of overutilization and inadequate regulatory measures. We, therefore, do not find that developing regulations under section 4(d) to prohibit some or all of these activities is necessary and advisable (considering the U.S. interaction with the species is negligible and its moderate risk of extinction is primarily a result of threats from foreign fishing activities).

Additionally, as mentioned in the status review and proposed rule, manta rays were included on Appendix II of CITES at the 16 Conference of the CITES Parties in March 2013, with the listing going into effect on September 14, 2014. Export of manta rays and manta ray products, such as gill plates, require CITES permits that ensure the products were legally acquired and that the Scientific Authority of the State of export has advised that such export will not be detrimental to the survival of that species (after taking into account factors such as its population status and trends, distribution, harvest, and other biological and ecological elements). Although this CITES protection was not considered to be an action that decreased the current listing status of the threatened giant manta ray (due to its uncertain effects at reducing the threats of foreign domestic overutilization and inadequate regulations, and unknown post-release mortality rates from bycatch in industrial fisheries), it may help address the threat of foreign overutilization for the gill plate trade by ensuring that international trade of this threatened species is sustainable. Regardless, because the United States does not have a significant (or potentially any) presence in the international gill plate trade, we have concluded that any restrictions on U.S. trade of the giant manta ray that are in addition to the CITES requirements are not necessary and advisable for the conservation of the species.

Therefore, because we find that the United States is not a significant contributor to the threats facing the giant manta ray, we have determined that protective regulations pursuant to section 4(d) under the ESA are not currently necessary and advisable for the conservation of the species. Any conservation actions for the giant manta ray that would bring it to the point that the measures of the ESA are no longer necessary will ultimately need to be implemented by foreign nations.

We request interested persons to submit relevant information related to the identification of critical habitat of the giant manta ray, including specific areas within the geographical area occupied by the species that include the physical and biological features essential to the conservation of the species and where such features may require special management considerations or protection. Areas outside the occupied geographical area should also be identified if such areas themselves are essential to the conservation of the species. ESA implementing regulations at 50 CFR 424.12(g) specify that critical habitat shall not be designated within foreign countries or in other areas outside of U.S. jurisdiction. Therefore, we request information only on potential areas of critical habitat within waters under U.S. jurisdiction.

Section 4(b)(2) of the ESA requires the Secretary to consider the “economic impact, impact on national security, and any other relevant impact” of designating a particular area as critical habitat. Section 4(b)(2) also gives the Secretary discretion to consider excluding from a critical habitat designation any particular area where the Secretary finds that the benefits of exclusion outweigh the benefits of including the area in the designation, unless excluding that area will result in extinction of the species. For features and areas potentially qualifying as critical habitat, we also request information describing: (1) Activities or other threats to the essential features or activities that could be affected by designating them as critical habitat; and (2) the positive and negative economic, national security and other relevant impacts, including benefits to the recovery of the species, likely to result if these areas are designated as critical habitat. We seek information regarding the conservation benefits of designating areas within waters under U.S. jurisdiction as critical habitat. In keeping with the guidance provided by the Office of Management and Budget (2000; 2003), we seek information that would allow the monetization of these effects to the extent possible, as well as information on qualitative impacts to economic values.

Information reviewed may include, but is not limited to: (1) Scientific or commercial publications; (2) administrative reports, maps or other graphic materials; (3) information received from experts; and (4) comments from interested parties. Comments and data are particularly sought concerning: (1) Maps and specific information describing the amount, distribution, and use type (e.g., foraging or migration) of giant manta ray habitats, as well as any additional information on occupied and unoccupied habitat areas; (2) the reasons why any habitat should or should not be determined to be critical habitat as provided by sections 3(5)(A) and 4(b)(2) of the ESA; (3) information regarding the benefits of designating particular areas as critical habitat; (4) current or planned activities in the areas that might be proposed for designation and their possible impacts; (5) any foreseeable economic or other potential impacts resulting from designation, and in particular, any impacts on small entities; (6) whether specific unoccupied areas may be essential to provide additional habitat areas for the conservation of the species; and (7) potential peer reviewers for a proposed critical habitat designation, including persons with biological and economic expertise relevant to the species, region, and designation of critical habitat. We solicit information from the public, other concerned governmental agencies, the scientific community, industry, or any other interested party (see ADDRESSES).

A complete list of references used in this final rule is available upon request (see ADDRESSES).

The 1982 amendments to the ESA, in section 4(b)(1)(A), restrict the information that may be considered when assessing species for listing. Based on this limitation of criteria for a listing decision and the opinion in Pacific Legal Foundation v. Andrus, 657 F. 2d 829 (6th Cir. 1981), NMFS has concluded that ESA listing actions are not subject to the environmental assessment requirements of the National Environmental Policy Act (NEPA).

As noted in the Conference Report on the 1982 amendments to the ESA, economic impacts cannot be considered when assessing the status of a species. Therefore, the economic analysis requirements of the Regulatory Flexibility Act are not applicable to the listing process. In addition, this final rule is exempt from review under Executive Order 12866. This final rule does not contain a collection-of-information requirement for the purposes of the Paperwork Reduction Act.

This rule is not an E.O. 13771 regulatory action because this rule is exempt from review under E.O. 12866.

In accordance with E.O. 13132, we determined that this final rule does not have significant Federalism effects and that a Federalism assessment is not required.

For the reasons set out in the preamble, 50 CFR part 223 is to be amended as follows:

The penaeid shrimp fishery of the South Atlantic is managed under the Fishery Management Plan for the Shrimp Fishery of the South Atlantic Region (FMP). The FMP was prepared by the South Atlantic Fishery Management Council (Council) and is implemented under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.

Amendment 9 to the FMP revised the criteria and procedures by which a South Atlantic state may request a concurrent closure of the EEZ to the harvest of penaeid shrimp when state waters close as a result of severe winter weather (78 FR 35571, June 13, 2013). Under 50 CFR 622.206(a), NMFS may close the EEZ adjacent to South Atlantic states that have closed their waters to the harvest of brown, pink, and white shrimp to protect the white shrimp spawning stock that has been severely depleted by cold weather or when applicable state water temperatures are 9 °C (48 °F), or less, for at least 7 consecutive days. Consistent with those procedures and criteria, the state of South Carolina has determined that unusually cold temperatures have occurred and that state water temperatures have been 9 °C (48 °F), or less, for at least 7 consecutive days and that these cold weather conditions pose a risk to the condition and vulnerability of overwintering white shrimp populations in its state waters. South Carolina closed its waters on January 10, 2018, to the harvest of brown, pink, and white shrimp, and has requested that NMFS implement a concurrent closure of the EEZ off South Carolina. In accordance with the procedures described in the FMP, the state of South Carolina submitted a letter to the NMFS Regional Administrator (RA) on January 10, 2018, requesting that NMFS close the EEZ adjacent to South Carolina to penaeid shrimp harvest as a result of severe cold weather conditions.

NMFS has determined that the recommended Federal closure conforms with the procedures and criteria specified in the FMP and the Magnuson-Stevens Act, and, therefore, implements the Federal closure effective 12:01 a.m., local time, January 17, 2018. The closure will be effective until the ending date of the closure in South Carolina state waters, but may be ended earlier based on a request from the state. NMFS will terminate the closure of the EEZ by filing a notification to that effect with the Office of the Federal Register.

During the closure, as specified in 50 CFR 622.206(a)(2), no person may: (1) Trawl for brown, pink, or white shrimp in the EEZ off South Carolina; (2) possess on board a fishing vessel brown, pink, or white shrimp in or from the EEZ off South Carolina unless the vessel is in transit through the area and all nets with a mesh size of less than 4 inches (10.2 cm), as measured between the centers of opposite knots when pulled taut, are stowed below deck; or (3) for a vessel trawling within 25 nautical miles of the baseline from which the territorial sea is measured, use or have on board a trawl net with a mesh size less than 4 inches (10.2 cm), as measured between the centers of opposite knots when pulled taut.

The Regional Administrator for the NMFS Southeast Region has determined this temporary rule is necessary for the conservation and management of the spawning stock of white shrimp off South Carolina and is consistent with the FMP, the Magnuson-Stevens Act and other applicable laws.

This action is taken under 50 CFR 622.206(a) and is exempt from review under Executive Order 12866.

These measures are exempt from the procedures of the Regulatory Flexibility Act because the temporary rule is issued without opportunity for prior notice and comment.

This action responds to the best scientific information available recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, (AA), finds that the need to immediately implement this action to close the EEZ off South Carolina to trawling for penaeid shrimp constitutes good cause to waive the requirements to provide prior notice and opportunity for public comment pursuant to the authority set forth in 5 U.S.C. 553(b)(B), as such procedures would be unnecessary because the rule itself has been subject to notice and comment, and all that remains is to notify the public of the closure.

Providing prior notice and opportunity for public comment also is contrary to the public interest because of the need to immediately implement this action to protect the spawning stock of white shrimp off South Carolina. Prior notice and opportunity for public comment would require time and would potentially further harm the spawning stock that has been impacted due to cold weather.

For the aforementioned reasons, the AA also finds good cause to waive the 30-day delay in effectiveness of this action under 5 U.S.C. 553(d)(3).

NMFS manages the groundfish fishery in the Bering Sea and Aleutian Islands (BSAI) 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 A season apportionment of the 2018 Pacific cod total allowable catch (TAC) specified for vessels using jig gear in the BSAI is 1,529 metric tons (mt) as established by the final 2017 and 2018 harvest specifications for groundfish in the BSAI (82 FR 11826, February 27, 2017) and inseason adjustment (82 FR 60329, December 20, 2017).

The 2018 Pacific cod TAC allocated to catcher vessels less than 60 feet (18.3 meters(m)) length overall (LOA) using hook-and-line or pot gear in the BSAI is 3,627 mt as established by final 2017 and 2018 harvest specifications for groundfish in the BSAI (82 FR 11826, February 27, 2017) and inseason adjustment (82 FR 60329, December 20, 2017.

The Administrator, Alaska Region, NMFS, (Regional Administrator) has determined that jig vessels will not be able to harvest 1,400 mt of the A season apportionment of the 2018 Pacific cod TAC allocated to those vessels under § 679.20(a)(7)(ii)(A)(1). Therefore, in accordance with § 679.20(a)(7)(iv)(C), NMFS apportions 1,400 mt of Pacific cod from the A season jig gear apportionment to the annual amount specified for catcher vessels less than 60 feet (18.3 m) LOA using hook-and-line or pot gear.

The harvest specifications for Pacific cod included in final 2017 and 2018 harvest specifications for groundfish in the BSAI (82 FR 11826, February 27, 2017) and inseason adjustment (82 FR 60329, December 20, 2017) are revised as follows: 129 mt to the A season apportionment and 1,149 mt to the annual amount for vessels using jig gear, and 5,027 mt to catcher vessels less than 60 feet (18.3 m) LOA using hook-and-line or pot gear.

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 reallocation of Pacific cod specified from jig vessels to catcher vessels less than 60 feet (18.3 m) LOA using hook-and-line or pot gear. Since the fishery is currently open, it is important to immediately inform the industry as to the revised allocations. Immediate notification is necessary to allow for the orderly conduct and efficient operation of this fishery, to allow the industry to plan for the fishing season, and to avoid potential disruption to the fishing fleet as well as processors. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of January 11, 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.