Federal Register Vol. 83, No.141,

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to The Boeing Company Model 787 series airplanes powered by Rolls Royce Trent 1000 engines. The NPRM published in the Federal Register on February 23, 2018 (83 FR 8017). The NPRM was prompted by reports of failures of the IFS forward upper fire seal and damage to thermal insulation blankets in the forward upper area of the TR. The NPRM proposed to require an inspection to determine the part number of the IFS forward upper fire seal, and applicable on-condition actions.

We are issuing this AD to prevent failure of the IFS forward upper fire seal, which causes the loss of seal pressurization and allows fan bypass air to enter the engine core compartment. Fan bypass air entering the engine core compartment could degrade the ability to detect and extinguish an engine fire, resulting in an uncontrolled fire. Furthermore, fan bypass air entering the engine core compartment could cause damage to the TR insulation blanket, resulting in thermal damage to the TR inner wall, the subsequent release of engine exhaust components, and consequent damage to critical areas of the airplane.

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.

Boeing supported the intent of the NPRM.

An anonymous commenter requested that an additional action be included in the proposed AD. The commenter proposed that Boeing develop an inspection of the thermal blankets and fire seals to ensure the integrity and safe operation of these components. The commenter expressed concern that a thermal blanket could fail due to insufficient sealing by the fire seals that have incorporated the modification mandated by this AD. The modification of the fire seals is specified in Boeing Alert Service Bulletin B787-81205-SB780033-00, Issue 001, dated November 1, 2017 (“BASB B787-81205-SB780033-00, Issue 001”).

The commenter stated that the post-modification fire seals are still failing. The commenter is aware of 30 findings of fire seal/thermal blanket damage across a fleet size of 16 airplanes. The commenter noted that there were 18 findings prior to incorporation of the modification of the fire seals specified in BASB B787-81205-SB780033-00, Issue 001, and 12 findings after incorporation of that modification. The commenter is concerned that the unsafe condition addressed by this AD could still exist after accomplishment of the mandatory modification.

We do not agree with the commenter's request. We do not want to delay the publication of this AD by adding a new inspection requirement that will require additional time for public comment. We have determined that the modification of the fire seals required by this AD addresses the design issue of the fire seal end cap that resulted in failure of the IFS forward upper fire seal and damage to the thermal blanket. We are aware of operator reports that damage to the IFS forward upper fire seal and thermal blanket has been discovered on airplanes on which the modification specified in BASB B787-81205-SB780033-00, Issue 001, has been done. The airplane manufacturer is investigating the root cause of this damage and, when the root cause is identified, we may consider further rulemaking at that time. We have not changed this AD in this regard.

We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this final rule as proposed, except for minor editorial changes. We have determined that these minor changes:

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

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

Boeing has issued Boeing Alert Service Bulletin B787-81205-SB780033-00, Issue 001, dated November 1, 2017. This service information describes procedures for an inspection to determine the part number of the IFS forward upper fire seal and applicable on-condition actions. 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 estimate that this AD affects 13 airplanes of U.S. registry. We estimate the following costs to comply with this AD:

We estimate the following costs to do any necessary on-condition actions that will be required. We have no way of determining the number of aircraft that might need these on-condition actions:

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 and associated appliances to the Director of the System Oversight 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:

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA AD 2018-0086, dated April 17, 2018 (referred to hereinafter as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

You may obtain further information by examining the MCAI in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-1237.

We reviewed RR Alert Non-Modification Service Bulletin (NMSB) Trent 1000-72-AJ992, Revision 1, dated January 3, 2018, and Revision 2, dated April 16, 2018; and RR Service Bulletin (SB) Trent 1000 72-H818, dated November 14, 2016. Alert NMSB Trent 1000-72-AJ992 defines operating restrictions for de-pairing certain engines before an IPT blade cyclic life. Revisions 1 and 2 of this NMSB differ by identifying different engine serial numbers that are affected by the respective NMSBs. RR SB Trent 1000 72-H818 introduces a new IPT blade less susceptible to shank corrosion and exempt from this AD. 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 RR NMSB Trent 1000 72-J442, Revision 1, dated February 21, 2018; and initial issue, dated September 21, 2016; and RR NMSB Trent 1000 72-J465, Revision 2, dated February 28, 2018; Revision 1, dated January 10, 2017; and initial issue, dated December 22, 2016. RR NMSBs Trent 1000 72-J442 and Trent 1000 72-J465 describe procedures for refurbishing an engine with either serviceable used or new IPT blades, and also the cleaning and inspection requirements for the reuse of IPT blades.

This product has been approved by EASA and is approved for operation in the United States. Pursuant to our bilateral agreement with the European Community, EASA has notified us of the unsafe condition described in the MCAI and service information referenced above. We are issuing this AD because we evaluated all relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

This AD requires removal of one engine from an airplane before both engines exceed their respective IPT blade operating restrictions.

No domestic operators are affected by this regulatory action. Therefore, we find good cause that notice and opportunity for prior public comment are unneccessary. In addition, for the reason stated above, we find that good cause exists for making this amendment effective in less than 30 days.

This AD is a final rule that involves requirements affecting flight safety, and was not preceded by notice and an opportunity for public comment. However, we invite you to send any written data, views, or arguments about this final rule. Send your comments to an address listed under the ADDRESSES section. Include the docket number “Docket No. FAA-2017-1237” and Product Identifier “2017-NE-43-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this final rule. We will consider all comments received by the closing date and may amend this final rule because of those comments.

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

We estimate that this AD affects 0 engines installed on airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

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

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

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

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

For the reasons discussed above, I certify 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:

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA AD 2018-0128, dated June 12, 2018 (referred to hereinafter as “the MCAI”), to address an unsafe condition for the specified products. The MCAI states:

You may obtain further information by examining the MCAI in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0590.

We reviewed RR Alert Non-Modification Service Bulletin (NMSB) Trent 1000 72-AK130, Initial Issue, dated June 11, 2018. The NMSB describes procedures for performing a one-time inspection of the IPC stage 1 rotor blades, IPC stage 2 rotor blades, and IPC stage 2 dovetail posts, and lists engine serial numbers. 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 RR NMSB Trent 1000 72-K099, Initial Issue, dated June 11, 2018; RR NMSB Trent 1000 72-K100, Initial Issue, dated June 11, 2018; and RR NMSB Trent 1000 72-K129, Initial Issue, dated June 11, 2018. RR NMSB Trent 1000 72-K099 describes procedures for an ultrasonic inspection of the IPC stage 1 rotor blades. RR NMSB Trent 1000 72-K100 describes procedures for a visual borescope inspection of the IPC stage 2 rotor blades and IPC stage 2 dovetail posts. RR NMSB Trent 1000 72-K129 describes procedures for an ultrasonic inspection of the IPC stage 2 rotor blades.

This product has been approved by EASA and is approved for operation in the United States. Pursuant to our bilateral agreement with the European Community, EASA has notified us of the unsafe condition described in the MCAI and service information referenced above. We are issuing this AD because we evaluated all the relevant information provided by EASA and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

This AD requires inspecting the IPC stage 1 rotor blades, IPC stage 2 rotor blades, and IPC stage 2 dovetail posts, and removing any cracked parts from service.

No domestic operators use this product. Therefore, we find good cause that notice and opportunity for prior public comment are unnecessary. In addition, for the reason stated above, we find that good cause exists for making this amendment effective in less than 30 days.

This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment. However, we invite you to send any written data, views, or arguments about this final rule. Send your comments to an address listed under the ADDRESSES section. Include the docket number FAA-2018-0590 and Product Identifier 2018-NE-24-AD at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this final rule. We will consider all comments received by the closing date and may amend this final rule because of those comments.

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

We estimate that this AD affects 0 engines installed on airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

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

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

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

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

For the reasons discussed above, I certify 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:

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2018-0129, dated June 15, 2018 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Airbus SAS Model A319-115, -132, and -133 airplanes; and Model A320-214, -216, -232, -233, -251N, and -271N 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-2018-0636.

Airbus has issued Alert Operators Transmission A25N012-17, Revision 02, dated May 29, 2018. This service information describes procedures for inspecting each passenger escape slide/slide raft to determine whether the safety pin is installed on the slide inflation reservoir, and removing any installed safety pin and stowing the pin in the stowage pocket of the soft cover of the pack assembly. 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.

This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are 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.

This AD requires accomplishing the actions specified in the service information described previously.

An unsafe condition exists that requires the immediate adoption of this AD. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because safety pins installed in the inflation reservoirs of passenger escape slides/slide rafts would prevent the deployment of the escape slides/slide rafts when required in case of emergency, possibly resulting in injury to the occupants. Therefore, we determined that notice and opportunity for public comment before issuing this AD are impracticable and that, for the same reason, 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-2018-0636; Product Identifier 2018-NM-097-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.

We estimate that this AD affects 10 airplanes of U.S. registry. We estimate the following costs to comply with this AD:

We estimate the following costs to do any necessary on-condition actions that would be required based on the results of any required actions. We have no way of determining the number of aircraft that might need these on-condition actions:

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:

The FAA published a final rule in the Federal Register for Docket No. FAA-2017-0144 (83 FR 32061, July 11, 2018), establishing restricted areas R-5602A and R-5602B over a portion of the Fort Sill, OK, restricted area complex. Subsequent to publication, the FAA identified an editorial error in the using agency information listed in the restricted area legal descriptions. To accurately reflect the using agency responsible for the scheduling, using, and coordinating with the controlling agency, this correction changes the using agency from “U.S. Army, Commanding General, U.S. Army Fires Center of Excellence (USAFCOE) and Fort Sill, Fort Sill, OK” to read “U.S. Army, U.S. Army Fires Center of Excellence (USAFCOE), Fort Sill, OK.”

Accordingly, pursuant to the authority delegated to me, in the Federal Register of July 11, 2018 (83 FR 32061) FR Doc. 2018-14783, Establishment of Restricted Areas R-5602A and R-5602B; Fort Sill, OK, is corrected as follows:

The Commission is correcting typographical and technical errors in the final rule, Prohibition of Children's Toys and Child Care Articles Containing Specified Phthalates, 16 CFR part 1307, which appeared in the Federal Register on October 27, 2017. 82 FR 49938. This document corrects typographical and technical errors in the listing of phthalates in paragraphs (a) and (b) of § 1307.3. We are making these corrections to avoid possible confusion. This document corrects technical errors; it does not make any substantive changes to the final rule.

Accordingly, 16 CFR part 1307 is corrected by making the following correcting amendments:

The Commission is correcting typographical errors in the direct final rule Prohibition of Children's Toys and Child Care Articles Containing Specified Phthalates: Revision of Determinations Regarding Certain Plastics, 16 CFR part 1308 that appeared in the Federal Register on January 26, 2018. 83 FR 3583. This document corrects typographical errors in the list of phthalates in § 1308.1 of the direct final rule. We are making these corrections to avoid possible confusion. This document corrects technical errors; it does not make any substantive changes to the final rule.

On April 20, 2018, the Greater Atlantic City Chamber of Commerce notified the Coast Guard of a date change through submission of a marine event application. A change of the dates to the previously published dates in the Code of Federal Regulations (CFR) for the annual Thunder Over the Boardwalk Air Show, as listed in the Table to 33 CFR 100.501 at (a)8. is necessary due to a schedule change from the sponsor. This year the Coast Guard will enforce the special local regulation for the Thunder Over the Boardwalk Air Show regulated area from 10:30 a.m. to 4:30 p.m. August 20-22, 2018. This action is being taken to provide for the safety of life on navigable waterways during this 3-day event. Our regulation for marine events within the Fifth Coast Guard District, § 100.501, specifies the location of the regulated area for the Atlantic City Air Show which encompasses all waters of the North Atlantic Ocean, adjacent to Atlantic City, New Jersey, bounded by a line drawn between the following points: From a point along the shoreline at latitude 39°21′31″ N, longitude 074°25′04″ W, thence southeasterly to latitude 39°21′08″ N, longitude 074°24′48″ W, thence southwesterly to latitude 39°20′16″ N, longitude 074°27′17″ W, thence northwesterly to a point along the shoreline at latitude 39°20′44″ N, longitude 074°27′31″ W, thence northeasterly along the shoreline to latitude 39°21′31″ N, longitude 074°25′04″ W.

During enforcement, vessels or persons must not enter, transit through, anchor in, or remain within the regulated area unless first authorized to do so by the Captain of the Port Delaware Bay or a designated representative. If permission is granted, the person or vessel must comply with the instructions of the COTP, designated representative, or Patrol Commander.

The Coast Guard will enforce a special local regulation for the EQT Three Rivers Regatta in 33 CFR 100.801, Table 1, Line 17 from noon through 10:30 p.m. daily from August 3, 2018 through August 5, 2018. This action is being taken to provide for the safety of persons, vessels, and the marine environment on the navigable waters of the Allegheny, Ohio, and Monongahela Rivers during this event. Our regulation for marine events within the Eighth Coast Guard District, § 100.801, specifies the location of the regulated area for the EQT Three Rivers Regatta. Entry into the regulated area is prohibited unless authorized by the Captain of the Port Marine Safety Unit Pittsburgh (COTP) or a designated representative. Persons or vessels desiring to enter into or pass through the regulated area must request permission from the COTP or a designated representative. They can be reached on VHF FM channel 16. If permission is granted, all persons and vessel shall comply with the instructions of the COTP or designated representative.

In addition to this notice of enforcement in the Federal Register, the COTP or a designated representative will inform the public through Broadcast Notices to Mariners (BNMs), Local Notices to Mariners (LNMs), Marine Safety Information Bulletins (MSIBs), and/or through other means of public notice as appropriate at least 24 hours in advance of each enforcement.

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because doing so would be impracticable. The Coast Guard did not receive the final details of this fireworks display in time to publish an NPRM. As such, it is impracticable to publish an NPRM because we lack sufficient time to provide a reasonable comment period and then consider those comments before issuing the rule.

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 inhibit the Coast Guard's ability to protect participants, mariners and vessels from the hazards associated with this event.

The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The Captain of the Port Detroit (COTP) has determined that potential hazard associated with fireworks from 10 p.m. on August 3, 2018 through 11 p.m. on August 4, 2018 will be a safety concern to anyone within a 420-foot radius of the launch site. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone while the fireworks are being displayed.

This rule establishes a safety zone from 10 p.m. on August 3, 2018 through 11 p.m. on August 4, 2018. The safety zone will be enforced from 10 p.m. through 11 p.m. on August 3, 2018. In the case of inclement weather on August 3, 2018, this safety zone will be enforced from 10 p.m. to 11 p.m. on August 4, 2018. The safety zone will encompass all U.S. navigable waters of the St. Clair River, Marine City, MI, within a 420-foot radius of position 42°43.15′ N, 082°29.2′ W (NAD 83). No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.

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

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

This regulatory action determination is based on the size, location, duration, and time-of-year of the safety zone. Vessel traffic will be able to safely transit around this safety zone which will impact a small designated area of the St. Clair River from 10 p.m. on August 3, 2018 through 11 p.m. on August 4, 2018. Moreover, the Coast Guard will issue Broadcast Notice to Mariners (BNM) via VHF-FM marine channel 16 about the zone and the rule allows vessels to seek permission to enter the zone.

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01 and Commandant Instruction M16475.1D, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting one hour that will prohibit entry into a designated area. 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 amends 33 CFR part 165 as follows:

During the afternoon of August 19, 2018, a non-sanctioned public event is scheduled to take place. The event is advertised over various social-media sites, in which a large number of persons float down a segment of the St. Clair River, using inner tubes and other similar floatation devices. The 2018 float down event will occur between approximately 12 p.m. and 8 p.m. on August 19, 2018. This non-sanctioned event has taken place in the month of August annually since 2009.

No private or municipal entity requested a marine event permit from the Coast Guard for this event, and it has not received state or federal permits since its inception. The event has drawn over 5,000 participants of various ages annually. Despite plans put together by federal, state and local officials, emergency responders and law enforcement officials have been overburdened pursuing safety during this event. Medical emergencies, people drifting across the international border, and people trespassing on residential property when trying to get out of the water before the designated finish line are some of the numerous difficulties encountered during the float down event.

During the 2014 float-down event, a 19-year-old participant died. During the 2016 float down, a wind shift caused thousands of U.S. citizen rafters with no passports to drift into Canadian waters. The current and wind made it impossible for the rafters to paddle back into U.S. waters, necessitating significant coordination with the Canadian authorities. Despite these events, promotional information for the event continues to be published. More than 5,000 people are again anticipated to float down the river this year. No public or private organization holds themselves responsible as the event sponsor.

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because doing so would be impracticable. The Coast Guard did not receive the final details of this float down event in time to publish an NPRM. As such, it is impracticable to publish an NPRM because we lack sufficient time to provide a reasonable comment period and then consider those comments before issuing the rule.

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 inhibit the Coast Guard's ability to protect participants, mariners and vessels from the hazards associated with this event.

The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The Captain of the Port Detroit (COTP) has determined the float down poses significant risk to public safety and property from 12 p.m. to 8 p.m. on August 19, 2018. The likely combination of large numbers of participants, strong river currents, limited rescue resources, and difficult emergency response scenarios could easily result in serious injuries or fatalities to float down participants and spectators. Therefore, the COTP is establishing a safety zone around the event location to help minimize risks to safety of life and property during this event.

This rule establishes a safety zone from 12 p.m. to 8 p.m. on August 19, 2018. The safety zone will begin at Lighthouse Beach and encompass all U.S. waters of the St. Clair River bound by a line starting at a point on land north of Coast Guard Station Port Huron at position 43°00.416′ N; 082°25.333′ W, extending east to the international boundary to a point at position 43°00.416′ N; 082°25.033′ W, following south along the international boundary to a point at position 42°54.500′ N; 082°27.683′ W, extending west to a point on land just north of Stag Island at position 42°54.500′ N; 082°27.966′ W, and following north along the U.S. shoreline to the point of origin (NAD 83). No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. Vessel operators must contact the COTP or his on-scene representative to obtain permission to transit through this safety zone. Additionally, no one under the age of 18 will be permitted to enter the safety zone if they are not wearing a Coast Guard approved personal floatation device. The COTP or his on-scene representative may be contacted via VHF Channel 16.

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, duration, and time-of-year of the safety zone. Vessel traffic will not be able to safely transit around this safety zone which will impact a small designated area of the St. Clair River from 12 p.m. until 8 p.m. on August 19, 2018. Moreover, the Coast Guard will issue Broadcast Notice to Mariners (BNM) via VHF-FM marine channel 16 about the zone and the rule allows vessels to seek permission to enter the zone.

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01 and Commandant Instruction M16475.1D, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting eight hours that will prohibit entry into a designated area. 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 amends 33 CFR part 165 as follows:

On May 1, 2018, Amtrak sent the U.S. Coast Guard a letter describing work it would be conducting to remove and replace the moveable portion of the Spuyten Duyvil Railroad Bridge over the Harlem River at mile 7.9. On May 7, 2018, the U.S. Coast Guard District One Bridge Administration notified Amtrak, the bridge owner, that it had no objections to the proposed project.

From May 27 to September 29, 2018, Amtrak will be repairing the Spuyten Duyvil Railroad Bridge. This repair project consists of two phases, removal and reinstallation, of the swing span of the bridge. On June 22, 2018, the Coast Guard issued a temporary final rule establishing a regulated navigation area and safety zone that covered both of these phases, 83 FR 29007. On June 26, 2018 the Coast Guard received notification from the repair project contractor that the reinstallation of the swing span of the bridge is potentially delayed and will be conducted over a three-day period between July 15, 2018 and August 4, 2018. As a result the Coast Guard is revising this rule so that the regulated navigation area and safety zone covers the entire three week reinstallation phase that remains to be completed.

During the installation of the swing span a barge and support vessels will be staged near the bridge. The swing span will be lifted from a support barge by a heavy lift crane barge and installed. The preparation for and reinstallation of the swing span will take approximately 72 hours. Amtrak anticipates this work will be conducted over a three-day period between July 15, 2018 and August 4, 2018.

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)(B). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because the schedule for the reinstallation of the swing span was only recently finalized and provided to the Coast Guard, and timely action is needed to respond to the potential safety hazards associated with this bridge project. The schedule for the repairs and notification to the Coast Guard was delayed by the late finalization of project details, including coordinating the heavy lift operations with the schedules of known waterway users, and writing a Maintenance of Waterway Traffic Plan. It is impracticable and contrary to the public interest to publish an NPRM because we must establish this RNA and safety zone by July 15, 2018, to allow for timely repairs to the bridge's swing span and promote the safety of the public.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register. Delaying the effective date of this rule would be impracticable and contrary to the public interest because timely action is needed to respond to the potential safety hazards associated with repairs to the swing span of the bridge.

The First District Commander has determined that potential hazards associated with the bridge swing span reinstallation will be a safety concern for anyone within approximately 300 yards of the center of the Spuyten Duyvil Railroad Bridge. The RNA and safety zone are needed to ensure the safety of personnel, vessels, and the marine environment from hazards associated with the replacement of Spuyten Duyvil Railroad Bridge. The Coast Guard anticipates that crane lifting operations may create the potential for falling debris into the waterway. The RNA is needed to limit vessel speed and wake of all vessels operating in the Hudson River in the vicinity to minimize the unexpected or uncontrolled movement of water. Construction operations utilizing a crane barge are sensitive to water movement, and wake from passing vessels could pose significant risk of injury or death to construction workers.

This rule revises the RNA and safety zone previously established on June 22, 2018 at 83 FR 29007. On June 26, 2018 the Coast Guard received notification from the repair project contractor that the reinstallation of the swing span of the bridge is potentially delayed and will be conducted over a three-day period between July 15, 2018 and August 4, 2018. As a result the Coast Guard is revising this rule so that the regulated navigation area and safety zone covers the entire three week reinstallation phase that remains to be completed. The revised RNA and safety zone will be enforceable from 6 a.m. on Sunday, July 15, 2018, to 11:59 p.m. on Sunday, September 30, 2018.

The RNA covers all waters of the Hudson River, approximately 500 yards upstream, and downstream, of the Spuyten Duyvil Railroad Bridge from surface to bottom bound by the following approximate positions starting south of a line drawn from 40°53′15.67″ N, 073°56′29.22″ W, thence to 40°52′56.48″ N, 073°55′21.57″ W, and all waters north of a line drawn from 40°52′47.97″ N, 073°56′42.85″ W, thence to 40°52′31.58″ N, 073°55′45.06″ W (NAD 83), excluding the portion of the safety zone surrounding the Spuyten Duyvil Railroad Bridge as discussed in the following paragraph.

The safety zone covers all waters of the Hudson River and Harlem River within approximately 300 yards of the center of the Spuyten Duyvil Railroad Bridge, from surface to bottom, bound by the following approximate positions starting on the Manhattan side of Spuyten Duyvil Railroad Bridge with position 40°52′38.20″ N, 073°55′36.70″ W, thence to 40°52′39.96″ N, 073°55′43.75″ W, thence to 40°52′46.34″ N, 073°55′36.90″ W, thence to 40°52′43.98″ N, 073°55′29.83″ W, thence along the Bronx shoreline to the Henry Hudson Bridge at mile 7.2 of the Harlem River, thence south across the Harlem River following along the Henry Hudson Bridge to the Manhattan side, thence along the Manhattan shoreline to the point of origin (NAD 83).

During operations involving the reinstallation of the swing span a safety zone will prohibit the transit of vessels in the Hudson River and Harlem River within approximately 300 yards of the center of the Spuyten Duyvil Railroad Bridge. This safety zone will protect personnel, vessels, and the marine environment from potential hazards created by the Spuyten Duyvil Railroad Bridge swing span reinstallation project.

Additionally, during the reinstallation of the swing span all vessels transiting the Hudson River within the RNA will be required to follow a “Slow-No Wake” speed limit. When this RNA is enforced, no vessel may produce a wake nor attain speeds greater than five (5) knots unless a higher minimum speed is necessary to maintain bare steerageway. The heavy lift operations involving the reinstallation of the bridge swing span are currently scheduled to take place between July 15, 2018 and August 4, 2018. The Coast Guard is publishing this rule to be effective, and enforceable, through September 30, 2018, in case the project is delayed due to unforeseen circumstances.

We anticipate enforcing the RNA and safety zone during the heavy lift operation, occurring between approximately July 15, 2018 and August 4, 2018. The RNA and safety zone is expected to be enforced for approximately one 72-hour period when vessels are preparing for, and conducting, the swing span reinstallation operations. The duration of enforcement for the RNA and safety zone is intended to protect personnel, vessels, and the marine environment in these waters while the bridge span is being installed. During the enforcement period, all vessels and persons must obtain permission from the First District Commander or a designated representative before entering the safety zone.

The Coast Guard will notify the public and local mariners of this RNA and safety zone through the Local Notice to Mariners (LNM) and Broadcast Notice to Mariners via VHF-FM marine channel 16 in advance of any enforcement period. The regulatory text we are enforcing appears at the end of this document.

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 following reasons: (1) The RNA and safety zone only impact a small designated area of the Harlem and Hudson Rivers; (2) the RNA and safety zone will only be enforced during heavy lift operations tentatively scheduled to occur between July 15, 2018 and August 4, 2018, for the swing span reinstallation; (3) persons or vessels may transit the RNA at any time, subject to a speed restriction during any periods of enforcement; (4) persons or vessels desiring to enter the safety zone may do so when the heavy lift operations are not in progress; (5) the Coast Guard previously published the approximate project dates in the LNM #18-2018 dated May 2, 2018, LNM #19-2018 dated May 9, 2018, LNM #20-2018 dated May 17, 2018, LNM #21-2018 dated May 23, 2018, LNM #22 dated May 30, 2018, and also requested impacted mariners to contact the contractor to discuss their schedules and receive email schedule updates; (6) the contractor contacted known waterway users to discuss the project and waterway impacts. Although the heavy lift operations will result in enforcement of a safety zone, closing the Harlem River in the vicinity of the Spuyten Duyvil Railroad Bridge, this operation is scheduled to accommodate sight-seeing vessels and marine events to the greatest extent possible.

The Coast Guard will also notify the public of the enforcement of this rule via appropriate means, such as the LNM and Broadcast Notice to Mariners.

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01 and Commandant Instruction M16475.1D, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves the creation of an RNA and a safety zone, both of which are expected to be enforced for two periods each lasting approximately 72 hours. The RNA is will restrict the speed of vessels transiting the Hudson River within approximately 500 yards upstream and downstream of the Spuyten Duyvil Railroad Bridge while heavy lift operations are conducted. The safety zone will prohibit vessels on the Hudson and Harlem Rivers from coming within approximately 300 yards of the center of the Spuyten Duyvil Railroad Bridge during heavy lift operations. 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 amends 33 CFR part 165 as follows:

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the e-CFR site at http://www.ecfr.gov/cgi-bin/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl.

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2017-0224 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before September 21, 2018. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2017-0224, by one of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be CBI or other information whose disclosure is restricted by statute.

• Mail: OPP Docket, Environmental Protection Agency Docket Center (EPA/DC), (28221T), 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001.

• Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at http://www.epa.gov/dockets/contacts.html.

Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at http://www.epa.gov/dockets.

In the Federal Register of January 26, 2018 (83 FR 3658) (FRL-9971-46), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 7E8556) by IR-4 Project Headquarters, 500 College Road East, Suite 201W, Princeton, New Jersey, 08540. The petition requested that 40 CFR 180.613 be amended by establishing tolerances for residues of the insecticide flonicamid, N-(cyanomethyl)-4-(trifluoromethyl)-3-pyridinecarboxamide, and its metabolites, TFNA (4-trifluoromethylnicotinic acid), TFNA-AM (4-trifluoromethylnicotinamide), and TFNG (N-(4-trifluoromethylnicotinoyl)glycine), calculated as the stoichiometric equivalent of flonicamid as follows:

In addition, upon establishing the above tolerances, the petitioner requests to remove existing tolerances in 40 CFR 180.613(a) including Vegetable, leafy, except brassica, group 4, except spinach at 4.0 ppm; Brassica, head and stem, subgroup 5A at 1.5 ppm; Brassica, leafy greens, subgroup 5B at 16 ppm; Radish, tops, at 16 ppm; Turnip, greens at 16 ppm; and Cotton, undelinted seed at 0.50 ppm.

That document referenced a summary of the petition prepared by ISK Bioscience Corporation, the registrant, which is available in the docket, http://www.regulations.gov. One comment was received on the petition notice of filing as outlined and responded to in Unit IV.C.

Consistent with the authority in FFDCA 408(d)(4)(A)(i), EPA is issuing tolerances that vary from what the petitioner sought. The reason for these changes is explained in Unit IV.D.

Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .”

Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for flonicamid including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with flonicamid follows.

EPA has evaluated the available toxicity data and considered their validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.

Flonicamid and its metabolites of concern, TFNA, TFNA-AM, TFNG, TFNG-AM (N-(4-trifluoromethylnicotinoyl)glycinamide), and TFNA-OH (6-hydro-4-trifluoromethylnicotinic acid), demonstrated low toxicity in acute oral toxicity studies. Flonicamid showed no systemic toxicity in a 28-day dermal study at the limit dose.

Feeding studies in rats and dogs show the kidney and liver are the target organs for flonicamid toxicity. In repeat-dose subchronic and chronic oral toxicity studies, the consistently observed adverse effect in rats and mice were kidney toxicity (i.e., hyaline deposition and nephritis); in dogs, vomiting and increased percentage of reticulocytes (an indicator for potential anemia).

There is no evidence that flonicamid results in increased susceptibility (qualitative or quantitative) in utero in rats or rabbits in the prenatal developmental studies or in young rats in the 2-generation reproduction study. In the rat prenatal developmental toxicity study, maternal toxicity consisted of kidney toxicity (i.e., nephritis) in the absence of developmental toxicity at the highest-dose tested (HDT); in the rabbit, maternal toxicity consisted of decreased food consumption in the absence of developmental toxicity at the HDT. In the rat reproduction and fertility effects study, parental toxicity (i.e., kidney hyaline deposition and luteinizing hormone level increases) occurred at doses much lower than doses causing offspring effects (i.e., decreased body weight and delayed sexual maturation).

There are no concerns for flonicamid neurotoxicity. In the acute neurotoxicity study in rats, signs of toxicity such as decreased motor activity, tremors, impaired gait, and impaired respiration were observed at lethal dose levels (1,000 mg/kg). In the subchronic neurotoxicity study, decreased body weight, food consumption, foot splay, and motor activity were observed in males at doses greater than 67 mg/kg/day, and in females at 722 mg/kg/day. In the immunotoxicity study in mice, there were no indications of increased immunotoxic potential in the T-cell dependent antibody response (TDAR) assay at the limit dose.

Mutagenicity studies were negative for flonicamid and its metabolites of concern. Treatment-related lung tumors were observed in CD-1 mice. This tumor type, however, is associated with species and strain sensitivity and is not directly correlated with cancer risks in humans. Nasal cavity tumors in male Wistar rats were linked to incisor inflammation. Nasolacrimal duct tumor findings for females were confounded by the lack of a dose-response, and the biological significance of these tumors is questionable. The determination of carcinogenicity potential for flonicamid was based on the weight of the evidence approach and resulted in the classification of “suggestive evidence of carcinogenicity, but not sufficient to assess human carcinogenic potential.” The Agency determined that quantification of risk using a non-linear approach (i.e., using a chronic reference dose (cRfD)) adequately accounts for all chronic toxicity, including carcinogenicity that could result from exposure to flonicamid.

Specific information on the studies received and the nature of the adverse effects caused by flonicamid as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at http://www.regulations.gov in document “SUBJECT: Flonicamid. Human Health Risk Assessment for the Petition for the Establishment of Permanent Tolerances for Clover, Crop Group Conversions to Brassica, Head and Stem Vegetable, Group 5-16; Brassica, Leafy Greens, Subgroup 4-16B; Leaf Petiole Vegetable, Subgroup 22B; Leafy Greens, Subgroup 4-16A, Except Spinach; Celtuce; Florence Fennel; and Kohlrabi (DP439902); Expansion of Cottonseed Tolerances to Cottonseed Subgroup 20C, and Revised Use Directions for Citrus (DP441385),” at pages 20-21 in docket ID number EPA-HQ-OPP-2017-0224.

Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/assessing-human-health-risk-pesticides.

A summary of the toxicological endpoints for flonicamid used for human risk assessment is presented in the following Table.

1. Dietary exposure from food and feed uses. In evaluating dietary exposure to flonicamid, EPA considered exposure under the petitioned-for tolerances as well as all existing flonicamid tolerances in 40 CFR 180.613. EPA assessed dietary exposures from flonicamid in food as follows:

i. Acute exposure. Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure. No such effects were identified in the toxicological studies for flonicamid; therefore, a quantitative acute dietary exposure assessment is unnecessary.

ii. Chronic exposure. In conducting the chronic dietary exposure assessment EPA used the food consumption data from the United States Department of Agriculture (USDA) 2003-2008 National Health and Nutrition Examination Survey, What We Eat in America (NHANES/WWEIA). The chronic dietary (food and drinking water) exposure assessment was conducted using the Dietary Exposure Evaluation Model software with the Food Commodity Intake Database (DEEM-FCID), Version 3.16. As to residue levels in food, an unrefined chronic dietary exposure assessment was conducted for all proposed and established food uses of flonicamid. Tolerance-level residues were combined with 100 percent crop treated (PCT) estimates. Separate tolerances established for potato granules/flakes, tomato paste, and tomato puree were based on processing studies and DEEM default processing factors were used for the other processed commodities.

iii. Cancer. Based on the data summarized in Unit III.A., EPA has concluded that a nonlinear RfD approach is appropriate for assessing cancer risk to flonicamid. Cancer risk was assessed using the same exposure estimates as discussed in Unit III.C.1.ii., chronic exposure.

iv. Anticipated residue and PCT information. EPA did not use anticipated residue and/or PCT information in the dietary assessment for flonicamid. Tolerance level residues and/or 100 PCT were assumed for all food commodities.

2. Dietary exposure from drinking water. The Agency used screening level water exposure models in the dietary exposure analysis and risk assessment for flonicamid in drinking water. These simulation models take into account data on the physical, chemical, and fate/transport characteristics of flonicamid. Further information regarding EPA drinking water models used in pesticide exposure assessment can be found at http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/about-water-exposure-models-used-pesticide.

The drinking water assessment was conducted using both a parent only exposure, and a total toxic residue approach, which considers the parent compound and its major degradates of concern. Total toxic residues include 4-trifluoromethylnicotinic acid (TFNA), 4-trifluoromethylnictinamide (TFNA-AM), 6-hydro-4-trifluoromethylnicotinic acid (TFNA-OH), N-(4-trifluoromethylnicotinoyl)glycine (TFNG), and N-(4-trifluoromethylnicotinoyl)glycinamide (TFNG-AM).

Based on the Pesticide Root Zone Model Ground Water (PRZM GW), version 1.0, the estimated drinking water concentrations (EDWCs) of flonicamid for chronic exposures for non-cancer assessments are estimated to be 0.94 parts per billion (ppb) for surface water and 9.92 ppb for ground water.

Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For chronic dietary exposure assessment, the water concentration value of 9.92 ppb was used to assess the contribution to drinking water.

3. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets).

Flonicamid is not registered for any specific use patterns that would result in residential exposure. Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/standard-operating-procedures-residential-pesticide.

4. Cumulative effects from substances with a common mechanism of toxicity. Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”

EPA has not found flonicamid to share a common mechanism of toxicity with any other substances, and flonicamid does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that flonicamid does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's website at http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/cumulative-assessment-risk-pesticides.

1. In general. Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an additional tenfold (10X) margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the Food Quality Protection Act Safety Factor (FQPA SF). In applying this provision, EPA either retains the default value of 10X, or uses a different additional safety factor when reliable data available to EPA support the choice of a different factor.

2. Prenatal and postnatal sensitivity. The prenatal and postnatal toxicity database for flonicamid includes prenatal developmental toxicity studies in rats and rabbits and a multigeneration reproduction toxicity study in rats. There is no evidence that flonicamid results in increased susceptibility (qualitative or quantitative) in utero in rats or rabbits in the prenatal developmental studies or in young rats in the multi-generation reproduction study. No developmental effects were seen in rabbits. In the multi-generation reproduction study, developmental delays in the offspring (decreased body weights, delayed sexual maturation) were seen only in the presence of parental toxicity (kidney and blood effects). Also, there are clear NOAELs and LOAELs for all effects. The degree of concern for prenatal and/or post-natal susceptibility is, therefore, low due to the lack of evidence of qualitative and quantitative susceptibility.

3. Conclusion. EPA has determined that reliable data show the safety of infants and children would be adequately protected if the FQPA SF were reduced to 1x, except where assessing risks from inhalation exposure as discussed below. Those decisions are based on the following findings:

i. The toxicity database for flonicamid is essentially complete, except for an outstanding subchronic 28-day inhalation study. In the absence of a subchronic inhalation study, EPA has retained a 10X FQPA SF to assess risks from inhalation exposure, although at present, residential inhalation exposure is not expected from existing or pending uses of flonicamid.

ii. There is no indication that flonicamid is a neurotoxic chemical. As discussed in Unit III.A., EPA has concluded that the clinical signs observed from available acute and subchronic neurotoxicity studies were not the result of a neurotoxic mechanism. Therefore, there is no need for a developmental neurotoxicity study or additional UFs to account for neurotoxicity.

iii. There is no evidence that flonicamid results in increased susceptibility in in utero rats or rabbits in the prenatal developmental studies or in young rats in the 2-generation reproduction study.

iv. There are no residual uncertainties identified in the exposure databases. The chronic dietary food exposure assessment was based on 100 PCT, tolerance-level residues and where applicable, default processing factors. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to flonicamid in drinking water. These assessments will not underestimate the exposure and risks posed by flonicamid.

EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.

1. Acute risk. An acute aggregate risk assessment takes into account acute exposure estimates from dietary consumption of food and drinking water. No adverse effect resulting from a single oral exposure was identified and no acute dietary endpoint was selected. Therefore, flonicamid is not expected to pose an acute risk.

2. Chronic risk. Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to flonicamid from food and water will utilize 60% of the cPAD for children 1-2 years old, the population group receiving the greatest exposure. There are no residential uses for flonicamid.

3. Short- and Intermediate-term risks. Short- and intermediate-term aggregate exposures take into account short- and intermediate-term residential exposures plus chronic exposure to food and water (considered to be a background exposure level). Flonicamid is not registered for any use patterns that would result in short- and intermediate-term residential exposures.

4. Aggregate cancer risk for U.S. population. Based on the information referenced in Unit III.A., EPA has concluded that the cPAD is protective of possible cancer effects from flonicamid, and as evidenced in Unit III.E.2, aggregate exposure to flonicamid is below the cPAD. Aggregate cancer risk from existing and proposed food uses is below EPA's level of concern.

5. Determination of safety. Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children from aggregate exposure to flonicamid residues.

Adequate enforcement methodology is available to enforce the tolerance expression. FMC Method No. P-3561M, a liquid chromatography-tandem mass spectrometry (LC/MS/MS) method, is an acceptable enforcement method for flonicamid and its metabolites in plant commodities. The method determines residues of flonicamid and its metabolites TFNA-AM, TFNA, and TFNG. The method has been sufficiently validated in five diverse crops. Depending on the matrix, the limit of quantitation (LOQ) is 0.01 or 0.02 ppm. The limit of detection (LOD) can be estimated as one-third the LOQ.

The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address: [email protected].

In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.

There are Codex MRLs for residues of flonicamid in or on celery at 1.5 ppm, head lettuce at 1.5 ppm, leaf lettuce at 8.0 ppm, radish tops at 20 ppm, and cottonseed at 0.60 ppm. The Codex MRL and U.S. tolerance on cottonseed are harmonized. The petitioned-for tolerance on Brasssica, leafy greens subgroup 4-16B which includes radish tops is being established for Brasssica, leafy greens subgroup 4-16B, except radish tops at 16 ppm. An existing radish, tops tolerance at 16 ppm is being revised to 20 ppm to harmonize with the established Codex MRL. EPA is not harmonizing the relevant U.S. tolerances with the other established Codex MRLs for the following reasons. The U.S. tolerance for celery is set at 4.0 ppm as part of the Leaf Petiole vegetable subgroup 22B. The U.S. tolerance for lettuce, head and lettuce, leaf is set at 4.0 as part of the Leafy greens, subgroup 4-16A, is harmonized with Canada since the greatest percentage of U.S. exports are to Canada. This subgroup is not harmonized with the Codex tolerance at 8.0 ppm. In the case of celery and head lettuce, lowering the tolerances could result in exceedances when domestic growers apply flonicamid in accordance with label directions.

One anonymous public comment was received on the notice of filing raising concern about the need to assess impacts of regulations on the American people. This comment did not raise issues within the scope of the FFDCA, which directs the Agency's to assess certain information in determining whether tolerances are safe.

The EPA-established tolerances are identical to the proposed tolerance levels, except for the tolerances for clover. First, EPA adjusted the number of significant figures in the tolerance levels clover, forage proposed at 0.9 was revised to 0.90 ppm. In accordance with its standard practice to provide greater precision about the levels of residues that are permitted by a tolerance, EPA is adding an additional significant figure to the petitioned-for tolerance values. This is intended to avoid the situation where residues may be higher than the tolerance level, but as a result of rounding would be considered non-violative. For example, Clover, forage tolerance proposed at 0.9 ppm was established at 0.90 ppm, to avoid an observed hypothetical tolerance at 0.94 ppm being rounded to 0.9 ppm.

Also, EPA established a tolerance for clover, hay at 5.0 ppm, not at proposed 4.0 ppm because some of the residue data submitted by IR-4 were not converted to parent equivalents while all the residue data used by EPA were converted to parent equivalents.

EPA calculated tolerance levels using the Organization for Economic Cooperation and Development (OECD) tolerance calculation procedures and available field trial data residues. Additionally, the petitioned-for tolerance on Brasssica, leafy greens subgroup 4-16B which includes radish tops is being established for Brasssica, leafy greens subgroup 4-16B, except radish tops at 16 ppm. Lastly, the existing radish, tops tolerance at 16 ppm is being revised to 20 ppm to harmonize with the established Codex MRL.

Therefore, tolerances are established for residues of flonicamid, N-(cyanomethyl)-4-(trifluoromethyl)-3-pyridinecarboxamide, and its metabolites, TFNA (4-trifluoromethylnicotinic acid), TFNA-AM (4-trifluoromethylnicotinamide), and TFNG (N-(4-trifluoromethylnicotinoyl)glycine), calculated as the stoichiometric equivalent of flonicamid, in or on Brassica leafy greens, subgroup 4-16B, except radish tops at 16 ppm; Celtuce at 4.0 ppm; Cottonseed subgroup 20C at 0.60 ppm; Florence fennel at 4.0 ppm; Kohlrabi at 1.5 ppm; Leaf petiole vegetable subgroup 22B at 4.0 ppm; Leafy greens subgroup 4-16A, except spinach at 4.0 ppm; Radish, tops at 20 ppm, and Vegetables, brassica, head and stem, group 5-16 at 1.5 ppm. In addition, tolerances with regional restrictions are established on Clover, forage at 0.90 ppm; and Clover, hay at 5.0 ppm. Lastly, certain established flonicamid tolerances are being removed including entries for Vegetable, leafy, except brassica, group 4, except spinach; Brassica, head and stem, subgroup 5A; Brassica, leafy greens, subgroup 5B; Radish, tops; Turnip, greens; and Cotton, undelinted seed as they are superseded by this regulatory action.

This action establishes tolerances under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001); Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997); or Executive Order 13771, entitled “Reducing Regulations and Controlling Regulatory Costs” (82 FR 9339, February 3, 2017). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq.), nor does it require any special considerations under Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).

Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), do not apply.

This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501 et seq.).

This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Therefore, 40 CFR chapter I is amended as follows:

The Commission is amending its rules at 46 CFR part 531 governing NVOCC Service Arrangements (NSA) to remove the NSA filing and publication requirements. The Commission also is amending its rules at 46 CFR part 532 to permit NVOCC Negotiated Rate Arrangements (NRA) to be amended at any time and to allow the inclusion of non-rate economic terms. In addition, an NVOCC may provide for the shipper's acceptance of the NRA by booking a shipment thereunder, subject to the NVOCC incorporating a prominent written notice to such effect in each NRA or amendment. In addition, the Commission is including clarifying language in part 532 to reflect the current treatment of third-party, pass-through assessorial charges and the enforceability of NRAs.

The Shipping Act of 1984 (the Shipping Act or the Act) expanded the options for pricing liner services by introducing the concept of carriage under service contracts filed with the Commission. Public Law 98-237, section 8(c). Liner services could be priced via negotiated contracts between ocean common carriers and their shipper customers, rather than solely by public tariffs. Per the Shipping Act and FMC regulations, ocean freight rates, surcharges, and assessorial charges had to be published in tariffs or agreed to via service contracts filed with the Commission. Contemporaneous with the filing of service contracts, ocean carriers were required to make publicly available statements of essential terms in tariff format.

The Ocean Shipping Reform Act of 1998 (OSRA) amended the Shipping Act of 1984 as it related to service contracts. Public Law 105-258, section 106. No longer did contract rates need to be published in the tariff publication, and the essential terms publication was limited to: origin and destination port ranges, commodities, minimum volume or portion, and duration. Nevertheless, though the Shipping Act and its amendments provided for more efficiency and flexibility for ocean common carriers through the use of service contracts, similar relief was not extended to NVOCCs, which were still required to publish tariffs and adhere to those tariffs when transporting cargo.

In 2003, NCBFAA filed a petition seeking exemption from some of the tariff requirements of the Shipping Act of 1984. See Docket No. P5-03, Petition of the National Customs Brokers and Forwarders Association of America. Inc. for Limited Exemption of Certain Tariff Requirements of the Shipping Act of 1984. In response, the Commission issued a notice of proposed rulemaking (NPRM) to exempt NVOCCs from the tariff provisions of the Shipping Act and permit them to enter into contracts with shippers similar to ocean common carrier service contracts. NPRM: Non-Vessel Operating Service Arrangements, 69 FR 63981 (Nov. 3, 2004). The Commission determined that in order to ensure there was no substantial reduction in competition among NVOCCs, the exemption had to be available to all NVOCCs compliant with both section 19 of the Shipping Act and the conditions of the exemption. Id. The Commission proposed that “the exemption be conditioned on the same statutory and regulatory requirements and protections applicable to VOCCs' service contracts: namely, filing of executed agreements; publication of essential terms of those agreements; and confidential treatment, similar to that set forth in 46 CFR part 530.” Id. at 63986. The Commission also proposed the required publication of the essential terms of all NSAs in automated systems and the confidential filing of the text of those NSAs with the Commission. Id. at 63987. The Commission further proposed “making applicable to carriage under an NSA, those provisions of the Shipping Act that would be applicable to service contracts.” Id. The Commission's final rule provided a limited exemption and permitted NSAs, similar to service contracts, subject to filing and publication requirements in 46 CFR part 531. Final Rule: Non-Vessel-Operating Common Carrier Service Arrangements, 69 FR 75850 (Dec. 20, 2004). To ensure that the exemption as proposed would not result in a substantial reduction in competition, the Commission limited the exemption to individual NVOCCs acting in their capacity as carriers. Id. at 75851. The Commission also decided to allow affiliated NVOCCs to jointly offer NSAs. Id. at 75852.

In 2008, the NCBFAA filed another petition with the Commission. This petition sought an exemption from mandatory rate tariff publication. See Docket No. P1-08, Petition of the National Customs Brokers and Forwarders Association of America. Inc. for Exemption from Mandatory Rate Tariff Publication (filed July 31, 2008). The proposal sought to exempt NVOCCs from the provisions of the Shipping Act of 1984 requiring them to publish and/or adhere to rate tariffs “in those instances where they have individually negotiated rates with their shipping customers and memorialized those rates in writing.” NCBFAA Pet. in Docket No. P1-08, at 10.

By NPRM issued May 7, 2010, the Commission proposed to permit the use of NRAs in lieu of publishing rates in tariffs, subject to conditions, including (1) a requirement for NVOCCs to continue publishing standard rules tariffs with contractual terms and conditions governing shipments, including any assessorial charges and surcharges, (2) a requirement to make available NVOCC rules tariffs to shippers free of charge; (3) a requirement that NRA rates be mutually agreed to and memorialized in writing by the date the cargo is received for shipment; and (4) a requirement that NVOCCs who use NRAs must retain, and make available upon request to the Commission, documentation confirming the terms, and agreed rate, for each shipment for a period of five years. NPRM: NVOCC Negotiated Rate Arrangements, 75 FR 25150, 25154 (May 7, 2010). In the NPRM, the Commission also determined that under 46 U.S.C. 40103, the exemption could be granted as doing so would not result in a substantial reduction in competition or be detrimental to commerce. 75 FR at 25153.

The Commission subsequently granted the exemption, relieving NVOCCs from the burden and costs of tariff rate publication when using this new class of carrier rate arrangements. Final Rule: NVOCC Negotiated Rate Arrangements, 76 FR 11351 (Mar. 2, 2011). In determining whether to grant the exemption the Commission considered: Competition among NVOCCs; competition between NVOCCs and VOCCs; competition among vessel-operating common carriers (VOCCs); as well as competition among shippers. Id. at 11352. The Commission determined that granting the exemption would not result in a substantial reduction in competition in any of the above categories. Id. at 11352-11353. Analyzing whether granting the exemption would be detrimental to commerce, the Commission determined that such NRAs would be beneficial to commerce because the exemption would “reduce NVOCC operating costs and increase competition in the U.S. trades.” Id. at 11353. The Commission also determined that “NVOCCs entering into NRAs continue to be subject to the applicable requirements and strictures of the Shipping Act, including oversight by the Commission.” Id. at 11354.

As a condition to offering NRAs, NVOCCs were required to provide their rules tariffs to the public free of charge. 76 FR at 11358. The Commission also determined not to allow for amendment of an NRA after receipt of the cargo by the carrier or its agent. Id. Consistent with the Petition's focus upon negotiated rates only, the Commission determined not to permit NRAs to include non-rate economic terms, such as rate methodology, credit and payment terms, forum selection or arbitration clauses, or minimum quantities. Id. at 11355.

The primary differences between NRAs and NSAs are the formality of the arrangement and the scope of terms covered. Currently, NRAs must be in writing, and shipper acceptance must be in writing, such as by email. See NPRM: Amendments to Regulations Governing NVOCC Negotiated Rate Arrangements and NVOCC Service Arrangements, 82 FR 56781, 56786 (Nov. 30, 2017). NRAs have a “stated cargo quantity,” with no minimum volume or quantity commitment. See 46 CFR 532.3(a). NRAs cover specific points of origin and destination and include rates effective on and after a stated date or within a defined time frame. See § 532.3(a)-(b). The rates and applicable shipments must be specified as well as the names of the parties. § 532.5(b). Non-rate economic terms, including liquidated damages, are not currently permitted in NRAs. See 76 FR at 11355. Instead, such terms are included in the NVOCC's “rules tariff,” which must be made available electronically and free of charge. See §§ 532.3(c) and 532.4. In addition, NRAs may not be modified after the time the initial shipment is received by the carrier or its agent (including originating carriers in the case of through transportation). § 532.5(e). NRAs are not required to be filed with the FMC, but they must be maintained for a 5-year period and made available to the Commission upon request. See § 532.7(a)-(b).

NSAs, on the other hand, must be signed by the parties. 46 CFR 531.6(b)(9). Unlike NRAs, NSAs contain a minimum volume or quantity commitment, as well as defined service level and a certain rate or rate schedule over a fixed period of time. § 531.3(p). NSAs also include port ranges (port to port) or geographic areas (intermodal) as opposed to specific points of origin and destination. See § 531.6(b)(1)-(2). NSAs are also broader in scope than NRAs, and may include non-rate economic terms, including liquidated damages in the event of nonperformance. See § 531.6(b)(7). In addition, NSAs may be modified at any time. See § 531.3(c).

The filing requirements for NSAs and NRAs also currently differ. NSAs and amendments must be filed with the Commission in SERVCON. See § 531.6(a). Like NRAs, however, NSAs and associated records must be maintained for a 5-year period and must be made available to the Commission upon request. § 531.12. Liquidated damages by way of “provisions in the event of nonperformance” may also be provided for. See 46 CFR part 531.

In comparison, carrier tariffs provide for port ranges (port to port) or geographic areas (intermodal), but also Tariff Rate Items (TRIs). See 46 CFR 520.4. A TRI is a single freight rate in effect on and after a specific date or for a specific time period, for the transportation of a stated cargo quantity, which may move from origin to destination under a single specified set of transportation conditions. § 520.4(f). TRIs have no minimum volume or quantity commitment like NSAs, and rate reductions can take effect immediately; however, rate increases must be published at least 30 days in advance. See § 520.8(a). There is no provision for liquidated damages for goods moving under tariffs, and unlike NSAs and NRAs, tariffs are available and applicable to all shippers. See § 520.12(e). No written signature is required. Tariff publication data is required to be maintained by carriers and conferences for 5 years and accessible on-line for 2 years. § 520.10. Tariffs must be made available to the public at a reasonable fee. See id.

NCBFAA petitioned the FMC on April 16, 2015, to initiate a rulemaking to eliminate the NSA provisions in 46 CFR part 531 in their entirety, or alternatively, eliminate the filing and essential terms publication requirements for NSAs. Consolidated with that request, NCBFAA also asked the Commission to expand the NRA exemption in 46 CFR part 532 to include economic terms beyond rates, and to delete 46 CFR 532.5(e), which precludes any amendment or modification of an NRA after the initial shipment is received by the NVOCC or its agent. NCBFAA proposed expanding the NRA exemption in 46 CFR part 532 to allow modification of NRAs at any time upon mutual agreement between NVOCCs and their customers. NCBFAA Petition at 14.

NCBFAA argued that shippers and NVOCCs do not benefit from the current preclusion of amendments. NCBFAA Pet. at 10. NCBFAA also argued that shippers and NVOCCs regularly seek to negotiate on a broad range of service terms and that “each of these terms are relevant to some extent to every rate and service negotiation between an NVOCC and an existing or prospective customer. Yet, none of the items . . . can properly be included in an NRA.” See id. at 8-9. NCBFAA furthermore contended that as NSAs must be filed with the Commission, and essential terms of NSAs also need to be published in tariffs, NSAs are more burdensome than regular rate tariffs. See id. at 7-8. NCBFAA also argued that continuing the filing requirement for NSAs does not appear to provide any regulatory benefit. See id. at 12-13.

On April 28, 2015, the Commission published a Notice of Filing and Request for Comments on NCBFAA's petition. 80 FR 23549 (Apr. 28, 2015). Sixteen sets of comments were received from a broad cross-section of industry stakeholders, including licensed NVOCCs and freight forwarders, a major trade association representing beneficial cargo owners, and VOCCs.

The majority of the ocean transportation intermediary (OTI) comments expressed general support for the petition. Commenters supported either the elimination of 46 CFR Part 531 in its entirety, or eliminating the filing and essential terms publication requirements for NSAs. Many supported allowing economic terms beyond rates in NRAs, as well as the modification of NRAs at any time, upon mutual agreement.

The World Shipping Counsel, whose comments were supported by Crowley, urged even-handed regulatory relief with respect to VOCCs as well. WSC cited prior requests that VOCCs have made for changes to the Commission's regulations governing service contract amendment filings. WSC proposed “that service contract amendments be permitted to be filed within 90 days of the filing of the underlying commercial agreement.” See WSC at 1.

The National Industrial Transportation League (NITL) did not support the elimination of Part 531 in its entirety. UPS also opposed any restrictions upon, or the elimination of, Part 531, expressing support for the continued use of NSAs.

DGR Logistics noted the potential for logistical and regulatory challenges to NVOCCs caused by the requirement at 46 CFR 532.5(c) that an NRA “be agreed to” by the shipper prior to receipt of cargo by the common carrier or its agent. See DGR at 2.

On August 2, 2016, the Commission granted NCBFAA's petition to “initiate a rulemaking with respect to the revisions discussed in the petition.” Because the Commission was in the process of a separate rulemaking to amend portions of Part 531 related to NSAs,1 however, the Commission delayed initiating the requested rulemaking until after the rulemaking in Docket No. 16-05 was concluded.

The Commission noted in the NPRM that the majority of the NVOCC commenters supported the NCBFAA position on eliminating the NSA filing and publication requirements. See 82 FR at 56785. Furthermore, the NPRM stated that OTI commenters had made a substantial case that continuing the filing requirement for NSAs did not appear to offer any regulatory benefit. Id. The Commission therefore proposed to remove the requirement that NSAs be filed in SERVCON and the requirement that an NVOCC publish the essential terms of an NSA. Id. The Commission also explained that shippers, whom the Commission originally identified as the group to benefit from the requirement of essential terms publication in the original 2003 NSA rulemaking, had not since commented on the continuing utility of essential terms publications, and thus maintaining the requirement appeared to provide little regulatory benefit. Id. By way of removing the essential terms and NSA filing requirements, but keeping NSAs as an option, the Commission stated that it was seeking to preserve choice, but reduce costs. Id. The Commission noted that containing both service and rate provisions may be less than ideal for shippers or NVOCCs with low shipment volumes; however, considerable volumes of cargo are currently transported under the current contract model. Id. The NPRM stated that NVOCC members of NCBFAA would prefer the flexibility of including both service and rate-related items in their contract offerings if relieved of the filing and publication burdens of same. Id. at 56786.

The NPRM also addressed WSC's concerns regarding regulatory relief regarding service contracts by noting that the relief granted by the Commission in Docket 16-05 allowed amendments to service contracts, including multiple service contract amendments, to become effective during a 30-day period prior to being filed with the Commission. Id. at 56785. Furthermore, the Commission stated that further relief to VOCCs for service contracts may be undertaken by the Commission after it has had an opportunity to analyze the impact of the 30-day filing period on VOCC operations and shipper feedback. Id.

In order to readily determine which NVOCCs are using NSAs in the absence of the filing and publication requirements, the NPRM also proposed requiring NVOCCs to include a prominent notice in their rules tariffs indicating their intention to use NSAs, mirroring the requirement in § 532.6 for NVOCCs using NRAs. In addition, the Commission proposed requiring NVOCCs using NSAs to provide electronic access to their rules tariffs to the public free of charge, mirroring the requirement in § 532.4 for NVOCCs using NRAs.

In the NPRM, the Commission addressed the allowance of non-rate economic terms in NRAs by reaffirming its intention to provide a new business model for NVOCCs who cannot use NSAs and inviting further comment, “particularly from shippers currently using NRAs, on how expanding the NRA exemption to allow inclusion in NRAs of non-rate economic terms may impact their commercial business operations.” See 82 FR at 56785.

In the NPRM, the Commission noted the need for NRAs to respond to an ever-changing marketplace. 82 FR at 56786. The Commission also noted that the smaller cargo volume and commenters' statements demonstrate that NRAs tend to be short-term and transactional in nature. Id. The Commission expressed its desire to limit regulatory burden, and noted that NVOCCs and their customers should not be compelled to create a new NRA in every instance simply because the rules do not currently provide for amendment. Id. The Commission, furthermore, acknowledged that it was appropriate to permit NRAs to be extended or amended upon acceptance or agreement by the shipper customer. Id.

The Commission, noting DGR Logistics' comment on the potential for logistical and regulatory challenges to the NVOCC caused by the requirement at 46 CFR 532.5(c), also proposed to allow NRAs to be more flexibly created, or be amended, upon the shipper's acceptance in the form of a request for booking pursuant to the NRA. Id. The Commission noted that this practice would more closely correlate to the manner in which a shipper accepts a written rate quote under standard tariff rates and rules, i.e., by communicating its agreement solely in terms of instructing the NVOCC to book the cargo for shipment thereunder. Id. In light of this new practice, the Commission proposed that each NVOCC seeking to allow recognition of shipper acceptance of an NRA through booking incorporate a prominent written notice on each NRA or amendment. Id.

The NPRM also pointed out that as this new practice was meant to be optional, the Commission would not eliminate the requirement that a shipper's agreement to an NRA should otherwise be in writing or by email. Id. The NPRM invited public comment on allowing NRA acceptance through booking, as well as on whether to require specific wording on the practice in NRAs and amendments in order to provide prominent notice to shippers, as the NPRM proposed. Id.

Thirty-nine sets of comments were received in response to the November 29, 2017, Notice of Proposed Rulemaking, which may be found at the Electronic Reading Room on the Commission's website at https://www.fmc.gov/17-10/. Comments were received from NCBFAA; ABS Consulting (ABS); Mohawk Global Statistics (Mohawk); DJR Logistics, Inc. (DJR); New York New Jersey Foreign Freight Forwarders and Brokers Association, Inc. (NYNJFFF&BA); NITL; CaroTrans International, Inc., (CaroTrans); Vanguard Logistics Services (USA), Inc., (Vanguard); Serra International, Inc., (Serra); FedEx Trade Networks Transport & Brokerage, Inc. (FedEx); Florida Customs Brokers and Freight Forwarders Association (FCBF); Kelly Global Logistics, Inc.; North Atlantic International Ocean Carrier; ECU Worldwide; Mabel Olivera, Vice President of Operations for Clover Systems, LLC; IContainers (USA); A Customs Brokerage (ACB), Inc.; Omara Valles, Operations Manager of Clover Internacional, LLC; Hemisphere Cargo, Corp.; KCarlton International (dba KCI Shipping Line); Express Logistics Services, LLC; Geodis Freight Forwarding; Yusen Logistics (Yusen); Asia Shipping USA, Inc. (Asia); Parker & Company Worldwide (Parker); Quadrant Magnetics (Quadrant); Crescent Products USA LLC (Crescent); Geek Net Inc. (Geek Net); Connor Corporation (Connor); Bonney Forge Corporation (Bonney Forge); RBH Sound (RBH); Dart Maritime Service, Inc. (Dart); CJ International, Inc. (CJ International); Sefco Export Management Company, Inc. (Sefco); Eastman Chemical Company; Thunderbolt Global Logistics (Thunderbolt); Shipco Transport Inc. (Shipco); John S. Connor Global Logistics (Connor Global); Livingston International, Inc. (Livingston).

The comments represent a broad group of industry stakeholders, including licensed NVOCCs and freight forwarders, a tariff publishing vendor, and shippers.

No commenters, except Dart and NITL, were opposed to allowing acceptance of an NRA to be demonstrated by booking (some even supported allowing receipt of cargo prior to acceptance/booking). No commenters were expressly against allowing economic terms beyond rates in NRAs, the modification of NRAs at any time upon mutual agreement, or the elimination of the filing and essential terms publication requirements for NSAs. Some commenters also noted the benefits of NSAs, but sought more flexibility in the application of NSAs. Commenters also sought clarification on the role of pass-through and assessorial charges.

Regarding the Commission's requirement for prominent written notice in order to recognize acceptance of an NRA through booking, some commenters were in favor of the written notice along with specific wording for the notice, whereas some commenters were against any such requirement, as well as against any specific wording.

NCBFAA favors exempting NSAs from both the filing and essential terms publication requirements and supports the Commission's proposal. NCBFAA at 3. A significant number of individual NCBFAA/FCBF members 2 also stated that “[t]he FMC should repeal its existing requirement for NVOCCs to file negotiated service arrangements (NSAs) or to publish essential terms of NSAs in their tariffs as this process is extremely cumbersome and is not used by the trade in day-to-day business as it does not reflect the realities of international trade and commerce.” NCBFAA/FBCF Member Comments. Yusen Logistics, an NVOCC, also “agree[d] with the Commission's proposal to eliminate the necessity for NVOCCs to file NSAs.” Yusen at 3. Connor Global, Mohawk, and Thunderbolt support eliminating the necessity for NVOCCs to file NSAs. Connor Global at 2; Mohawk at 2; Thunderbolt at 3. Serra supports eliminating the NSA filing requirement and publication requirement for essential terms and notes the reduction in administrative costs and the lack of any benefit provided by filing and publication. Serra at 2. “Shipco [an NVOCC] agrees with the Commission's position that the NSA filing and essential terms publication requirements should be eliminated.” Shipco at 4. Thunderbolt, another OTI, also agrees that the NSA filing requirement for NVOCCs should be eliminated. Thunderbolt at 3. Sefco, also an OTI, favors ending the requirement to file NSAs with the Commission and eliminating 46 CFR part 531 in its entirety. Sefco at 2-3. NITL agrees with the elimination of the NSA filing and essential terms publication requirements. NITL at 4. NYNJFFF&BA are also “in favor of eliminating the NSA filing and publication requirements.” NYNJFFF&BA at 4.

CJ International, customs broker/freight forwarder agrees with the Commission's proposal to remove the requirement to file NSAs with the Commission and publish essential terms in tariffs, stating that “NSAs, like tariff rate filings, are burdensome and costly to file and maintain, yet it is unclear what the purpose is and who benefits from either of these items. Neither tariffs or NSAs are ever reviewed by clients.” CJ International at 2. FedEx states that “essential terms serve no purpose” and supports removing the requirement to publish them as well as the definition of essential terms in § 531.3(q). FedEx at 2.

CaroTrans, an NVOCC, supports eliminating the NSA filing and publication of essential terms requirement, which it contends render NSAs unnecessarily burdensome and time consuming to use. Carotrans at 4-5. CaroTrans, however, still recognizes that NSAs can be a useful tool. Id. at 4. CaroTrans asserts that the Commission should “amend the regulations authorizing and governing NSAs in order to make them more flexible. This would ensure that NSAs continue to be an option for NVOCCs and their customers that under some circumstances prefer the increased formality of the NSA.” Id. at 5. CaroTrans states that “the proposed reform would substantially improve the NSA process without compromising any protections intended by the regulations for shippers.” Id. at 5.

Livingston International, Inc., an NVOCC, noted the benefits of NSAs, but asked the Commission “to amend the regulations authorizing and governing NSAs in order to make them more flexible.” Livingston at 5. Livingston contends that “the filing and publication requirements in Part 531 should be eliminated, as they pose an unnecessary burden on NVOCCs and shippers. Nevertheless, it is Livingston's position that an NSA can serve as a useful tool to facilitate ocean transportation services for certain customers.” Id. at 4. Livingston states, “an NSA can provide a meaningful commitment of cargo from a shipper over a longer and specified period of time, and can be amended repeatedly to provide some ability to adjust to market conditions. Furthermore, an NSA can be made subject to charges published by an NVOCC in its tariff.” Id. Livingston asserts that amending the regulations to make them more flexible “would ensure that NSAs continue to be an option for shippers and NVOCCs but with reduced regulatory burden.” Id. at 5. NITL also “believes that NSAs should remain an option for shippers and NVOCCs that prefer the increased formality of the NSA requirements.” NITL at 4. “The League also agrees with the Commission that the agency can remove any unnecessary or burdensome regulatory requirements without eliminating the NSA option entirely.” Id.

Dart, a tariff publishing vendor, advised against removing NSA filing requirement. See Dart at 2. “While many are calling for the removal of the NSA regulations, I agreed with the comments for its continued inclusion and usage, while pointing out the obvious that this instrument is OPTIONAL. It only effects the shippers and OTIs that choose to utilize them.” Id. Dart advised that the Commission should not end the SERVCON system or stop requiring submission of Service Contracts and NSAs. Id. In particular, Dart asserted that the filing requirement is critical to the FMC's role as a neutral “referee” in trade disputes and assures independence from protective commercial interests. Dart also argued that the compliance costs of the requirement are no more than the cost of sending an email and that the requirement poses no economic burden. Id.

Commenters overwhelmingly support the Commission's proposal to eliminate the requirement that NSAs be filed with the Commission in SERVCON, as well as to eliminate the requirement that an NVOCC publish the essential terms of an NSA. The majority, nevertheless, did not call for the complete removal of NSAs and part 531. Dart, arguing that the Commission should not end the filing requirement, was the only commenter who submitted any opposition to the Commission's proposal to maintain part 531—but to eliminate the filing and essential terms publication requirements. There was also clear support for the continued use of NSAs.

The Commission concurs with the statement from Livingston that amending the regulations to make them more flexible “would ensure that NSAs continue to be an option for shippers and NVOCCs but with reduced regulatory burden.” See Livingston at 5. As the Commission has noted previously, there does not appear to be any regulatory benefit from continuing the filing requirement for NSAs, and the group intended to benefit from the original 2003 NSA rulemaking, shippers, have not argued for maintaining the requirement.

In response to Dart's concerns about the need for filed NSAs to permit the FMC to address commercial disputes, we believe that the recordkeeping requirements in § 531.12 will ensure adequate Commission oversight. NVOCCs must continue to retain NSAs, amendments, and associated records for five years from the termination of the NSA and must provide them Commission staff within 30 days of a request. These requirements will permit the Commission to investigate any disputes or issues with respect to particular NSAs. We also respectfully disagree with Dart's contention that the requirement imposes little to no regulatory burden. As discussed below in the Rulemaking Analysis section and in the Commission's information collection request filed with the Office of Management and Budget, removing the filing requirement will reduce the burden hours for NVOCCs by 162 hours, or approximately $10,728.37.3 Eliminating these burdens will provide regulatory relief to NVOCCs.

By way of removing the essential terms and NSA filing requirements, but still allowing NSAs as an option, the Commission can reduce costs and preserve choice while allowing a vehicle, NSAs, to continue to serve those members of the industry that prefer the extra formality and options allowed by NSAs. The Commission believes that while rate and service provisions in NSAs may not be ideal for NVOCCs and shippers with lower shipment volumes, a considerable amount of cargo is currently transported under NSAs, and they have proven to be a valued contract model. As stated by CaroTrans, the Commission believes this rule will “substantially improve the NSA process without compromising any protections intended by the regulations for shippers.” See CaroTrans at 5.

Finally, we agree with FedEx that the definition of “statement of essential terms” in § 531.3 is unnecessary given the elimination of the publication requirement. Accordingly, this final rule deletes that definition.4

NCBFAA has urged the Commission to “specifically authorize NRAs to include non-rate economic terms.” NCBFAA at 11. A number of individual NCBFAA/FCBF members provided support for “including economic terms such as credit, minimum quantities, liquidated damages, etc.” Commenters at 1. Yusen Logistics requests to include non-rate economic terms. Yusen at 2-3. Mohawk, an NVOCC, has called for the inclusion of “economic terms, such as surcharges, credit terms, minimum volume commitments, demurrage, detention, per diem, free time, waiting time, penalties and/or incentives, service standards.” Mohawk states: “We often find that our clients are looking to incorporate more into our NRAs than the current regulations allow, therefore we are hopeful that these broader economic terms can be approved. In many cases these same clients do not want to ship under [an] NSA.” Id. at 2. Connor Global, another NVOCC, would like to see the inclusion of credit terms, surcharges, free time, waiting time, demurrage, detention, and per diem, minimum volume commitments, and service standards. Connor Global at 2. Serra, an NVOCC, requests inclusion of “any non-economic terms important to both the NVOCC and the shipper in the movement of the freight.” Serra at 1. Parker & Company Worldwide, a Freight Forwarder, states that it would like to see the same terms allowed as stated above, and remarked that looking up terms online in tariffs is burdensome. Parker at 1.

A significant number of shipper commenters submitted nearly identical comments 5 that support allowing non-rate economic terms:

In addition to the types of terms specified above, Vanguard, an NVOCC, asks that the following terms be permitted: EDI services, Time Volume Rates, Liquidated Damages, Freight Forwarder Compensation, General Rate Increases (GRIs) or other pass-through charges from Carriers or Ports, Dispute Resolution, Rate or Service Amendments, Service Guarantees and/or Service Benchmarks, Rate Amendment Processes; etc. Vanguard at 2.

NITL also supports expanding NRAs to include non-rate economic terms. NITL at 5. NITL states, “allowing NVOCCs and shippers to negotiate terms different than those set forth in the NVOCC's rules tariff will likely lead to more competitive and efficient shipping arrangements that meet the shipper's commercial requirements and the demands of the market.” Id. NYNJFFF&BA is also in favor of “allowing NRAs to include non-rate economic terms.” NYNJFFF&BA at 3-4.

Dart, a tariff publishing vendor, stated that there should be a clear distinction between what additional terms could be included in an NRA compared to an NSA. Dart at 3. “There is no need to cross into this area by making the terms and conditions conflicting. Both can equally coexist and should be allowed to remain as viable instruments for use by the OTI in support of the shipping needs of its customer.” Id. FedEx, an NVOCC and freight forwarder, calls for the rescission of the prohibition against NRAs being allowed to include non-rate economic terms, and noted the importance of the ability to include other terms such as credit terms. FedEx at 2.

The Commission agrees with the many commenters, shippers and NVOCCs alike, who are calling for the expansion of NRAs to include non-rate economic terms. While the Commission recognizes the argument made by Dart for a clear distinction between what additional terms may be included in an NRA compared to an NSA, the Commission nevertheless believes that giving more choice to parties, as the majority of commenters support, will lead to greater efficiency and more competitive shipping arrangements. Dart at 3.

As stated above, commenters have called for a variety of new terms to be allowed in NRAs: Surcharges, credit terms, minimum volume commitments, demurrage, detention, per diem, free time, waiting time, penalties and/or incentives, service standards, EDI services, freight forwarder compensation, GRIs or other pass-through charges from Carriers or Ports, Dispute Resolution, and Rate Amendment Processes. The Commission recognizes the reduced administrative burden, greater efficiency, and increased competition that can be achieved by permitting the inclusion of such terms. While the Commission acknowledges the concern that allowing non-rate economic terms might increase the complexity of some NRAs, the Commission nevertheless favors removing outdated, unnecessary, or unduly burdensome regulations and restrictions to make way for more choice and options for NVOCCs and shippers. The Commission also believes that this increased flexibility for NRAs does not warrant a bright line distinction between NSAs and NRAs. Allowing the full range of non-rate economic terms in NRAs will clearly provide a benefit to members of the industry, and, therefore, the Commission is in favor of allowing for the inclusion of such terms in NRAs.6 Moreover, the broadening of the terms allowed in NRAs will not diminish the ability of NVOCCs and shippers that wish to form more complex agreements through an NSA. NSAs will remain a viable commercial pricing instrument for shippers and NVOCCs alike.

As discussed above, a number of commenters requested that the Commission permit NVOCCs to include GRIs and other pass through charges from carriers and ports in NRAs. In addition, FedEx requested the Commission to clarify the role of third-party pass-through assessorial charges. FedEx at 2. FedEx requests “that text clarifying the role of third-party pass-through assessorials, such as GRIs (General Rate Increases) be included in the regulations.” Id. FedEx states that “NVOCCs' ability to keep up with assessorial fees passed down by carriers is especially challenging. These rates sometimes change weekly in the most common lanes. Often ocean carriers announce the establishment and amount of an assessorial 30 days in advance, but the amount decreases over the 30 days, and is only finalized the day before the effective date.” Id. FedEx notes that “NVOCCs have very limited control over this process . . . assessorial costs are generally passed on to the shipper . . . [t]he NVOCC's process is labor-intensive.” Id. FedEx proposes that NRAs be allowed “to contain a clause stating that assessorial charges by third parties will be passed through to the customer” without mark up or being discounted. Id. FedEx also proposes “that NRAs also be permitted to contain a clause referring the user to the NVOCC's tariff, or other website location if/when tariffs are eliminated, for the assessorial amounts charged by third parties.” Id.

Serra also requests allowance for “pass through charges to be referenced in an NRA and applied with full shipper knowledge and understanding.” Serra at 2. Serra states:

The Commission already permits NVOCCs to pass along third-party assessorial charges to shippers under NRAs when certain conditions are met. Specifically, assessorial charges and other surcharges must be applied in accordance with the rules tariff and the NRA must inform the shipper of their applicability.7 The Commission has not, however, traditionally allowed NRA rates to be increased via GRIs. Although part 532 does not expressly discuss assessorial charges, the preamble to the 2011 final rule establishing NRAs states:

Since issuance of the 2011 final rule, however, the Commission has clarified through case law the treatment of pass-through assessorial charges for which no specific amount is fixed in either the NRA or the rules tariff. Specifically, in Gruenberg-Reisner v. Overseas Moving Specialists, Inc., 34 S.R.R. 613, 622-623 (FMC 2016), the Commission found that an NVOCC was entitled to collect pass-through assessorial charges without any markup, which it substantiated with invoices. The NVOCC described in its rules tariff the types of charges that were not included in the rate and provided that any of those charges assessed against the cargo would be for the account of the cargo, even if the NVOCC was responsible for the collection thereof. Id. The Commission found that Respondent was “entitled to payment for . . . destination terminal handling charges and the additional floor fee, and . . . local port fees, customs fees, parking permit, and elevator fee because these were reasonable accessorial charges that Respondent passed through to the Claimants without any markup.” Id. at 623. The Commission also stated that “assessing pass-through charges with no markup is a just and reasonable practice, in accordance with [section] 41102(c).” Id at 622.

The Commission has determined to incorporate the interpretations in Gruenberg-Reisner, subject to a few clarifications, into part 532. Specifically, pass-through assessorial charges need not be fixed at the time of receipt of the first shipment, in light of the Commission's decision in Gruenberg-Reisner, which found it permissible for an NVOCC to collect pass-through assessorial charges that were not fixed upon receipt.

In summary, the final rule adopts the following requirements. If the NRA rate is not an “all-in rate” the NRA must specify which surcharges or assessorial charges will apply by either including the specific additional charges in the NRA itself or referencing in the NRA the specific charges contained in the rules tariff. For applicable charges contained in the rules tariff, the charges and amounts for those charges (if the amounts are specified in the tariff) are fixed once the first shipment has been received by the NVOCC until the last shipment is delivered, subject to further amendment of the NRA by mutual agreement of the NVOCC and shipper. For pass-through charges and ocean carrier GRIs for which the NRA or rules tariff does not include a specified amount, the NVOCC may invoice the shipper for only those charges the NVOCC actually incurs, with no markup. The Commission is removing the prohibition on the pass-through of ocean carrier GRIs in order to increase efficiency and flexibility within the NRA framework.

A number of individual NCBFAA/FCBF members proposed that the Commission authorize amendments to NRAs and allow acceptance and booking of cargo “to suffice as acceptance of the rate, in lieu of a written agreement.” NCBFAA/FCBF Member Comments at 1. Yusen also favors authorizing amendments and believes that “acceptance of the NRA rate quote by either signing the document or otherwise having a written agreement” is “an irrelevant and repetitive requirement” Yusen at 2. Connor Global asks for flexibility in amending NRAs and acceptance upon booking. Connor Global at 2. Mohawk supports allowing amendments and acceptance upon booking. Mohawk at 2. Serra argues that allowing NRAs “to be amended would cut down on the re-issuance of new NRAs necessitated by the dynamic shipping environment.” Serra at 2. Serra believes that “this should extend even to freight that has been received.” Id. Serra asks the Commission “to recognize that tendering or booking of cargo constitutes acceptance of the rate and terms quoted in an NRA.” Id. Thunderbolt also believes tender of the cargo by the shipper to the OTI should constitute acceptance of an NRA. Thunderbolt at 2. Sefco favors “allowing the act of booking cargo to be considered acceptance of a rate under the terms of an NRA.” Sefco at 3. Sefco argues that allowing modification and acceptance by booking “is more in tune with market conditions and best business practices.” Sefco at 2. NCBFAA states that “modification of NRAs eliminates an unnecessary restriction, provides flexibility in a fluid marketplace, and allows [NVOCCs] to be responsive to their customers.” NCBFAA at 7.

Livingston supports the proposal “to eliminate [§ 532.5(e)] and to expand the NRA exemption in 46 CFR part 532 to allow for modification of NRAs at any time upon mutual agreement between an NVOCC and a shipper.” Livingston at 3. “Livingston also supports the further change proposed by the Commission to modify [§ 532.5(c)] to allow a booking request made pursuant to an NRA to constitute the required shipper acceptance of such NRA.” Id. CaroTrans concurs. CaroTrans at 3. Shipco also concurs. Shipco at 2-3.

Several commenters disagreed, however, with the Commission's proposal to provide specific language for the notice to shippers that booking would constitute acceptance of the NRA terms. Livingston argues that “requiring particular wording on an NRA regarding whether booking constitutes acceptance adds regulatory burden instead of removing it.” Id. Shipco states that “requiring specific wording would merely raise the risk of noncompliance for NVOCCs without providing any real benefit to shippers.” Shipco at 2-3.

NYNJFFF&BA goes even further, arguing that “the requirement for a `prominent written notice' be removed and the wording of any such notice be left to the NVOCC to determine what works best for their system of communication.” NYNJFFF&BA at 2. NYNJFFF&BA states that “it is an excessive formulaic governmental requirement with no real business/regulatory/legal purpose to insist that an NRA rate offer is not accepted unless there is a prominent notice that a booking is an acceptance of the NRA.” Id. at 3. NYNJFFF&BA are also in “favor of allowing NRAs to be amended after the receipt of the initial shipment.” Id. In addition, they favor allowing the shipper to agree in writing “to accept a change in the NRA terms after the carrier or its agent has received the cargo.” Id.

CJ International, a freight forwarder and customs broker, states:

Dart cautions that NRA amendments should be denoted with a date and time stamp, an amendment number, and a written response before the cargo is accepted.” Dart at 3. Specifically, Dart states:

NITL supports allowing amendments to NRAs and shipper acceptance upon booking, but with reservations. NITL at 6-7. “NITL supports providing parties an ability to amend an NRA at any time but only to the extent that the amendment is based on a mutual agreement between the parties that is not in the form of the NVOCC's tariff, bill of lading or other shipping document not subject to mutual negotiation.” NITL at 6. NITL believes “[t]he mutual agreement could be in the form of an informal writing such as an email or other electronic exchange which reflects the mutuality of the agreement.” Id. at 6.

NITL believes that the proposal to allow acceptance of an NRA through the act of booking in addition to the current method of acceptance which allows acceptance through memorialization in an email or writing, has the potential to create confusion over the enforceability of an NRA. Id. at 6. NITL believes this could also cause confusion with “the ability of a shipper to cancel a booking if commercial circumstances change prior to the tender of the cargo.” Id. NITL, therefore, “with respect to a shipper's “acceptance” of an NRA, the League prefers the current regulations which require a “meeting of the minds” between the parties to be reflected in a formal or informal writing, such as an email.” Id. at 6. Nevertheless, NITL recommends that “if the FMC were still to decide to provide greater flexibility for “acceptance” of NRAs,” then “acceptance of the NRA should be tied to the shipper's tender of the cargo,” as acceptance through tendering of cargo “is more consistent with existing transportation practices and broader commercial contract principles.” Id. at 7. “NITL strongly supports the Commission's proposed requirement that each NVOCC seeking to recognize the alternate form of acceptance must incorporate a prominent written notice to that effect on each applicable NRA or amendment to avoid any risk of surprise and potential disputes.” Id. at 7. RBH, a shipper, states that all that should be necessary for acceptance of an NRA is “the preparation of a good quotation and acceptance of the charges associated with a shipment.” RBH at 1.

Vanguard, who favors requiring prominent written notice, suggested the following language: “Your booking and/or tendering of cargo is considered acceptance of the NRA rates and terms that were negotiated with you for the shipment of the cargo.” Vanguard at 2. Vanguard also believes that NRAs should be allowed “to be amended at any time before, upon or after cargo receipt,” as well as “extended, expired, or cancelled.” Id. at 2. Shipco, however, “does not believe that the Commission should require any particular wording on an NRA regarding whether booking constitutes acceptance.” Shipco at 3. CaroTrans also does not believe any specific wording should be required to constitute acceptance. CaroTrans at 3. “Requiring specific wording would merely raise the risk of noncompliance for NVOCCs without providing any real benefit to shippers.” Id. at 4. Serra is not of the opinion “that it is necessary for an NVOCC to have a prominent notice that booking is considered an acceptance of the NRA.” Serra at 2. Serra also does not “believe that the form and wording of such a notice should be a matter worthy of government interest and regulation.” Id.

ABS Consulting stated: “Further providing the shippers['] acceptance by making a booking with the NVOCC also aligns nicely with other shipping modes and how shippers and forwarders (carriers) interact today.” ABS at 1. “I would recommend that the FMC go even one step further, to allowing the NVOCC to receive the cargo prior to the acceptance (booking) of the cargo by the customer.” Id. Asia Shipping also states that they “would recommend that the FMC allow[] the NVOCC to receive the cargo prior to the acceptance (booking) of the cargo by the customer.” Asia at 2.

FedEx states that “[a]llowing acceptance to be demonstrated by the shipper's booking with the NVOCC after receipt of the NRA (with explanatory text) conforms with the current shipping environment.” FedEx at 2. FedEx, moreover, states that “[a]llowing NVOCCs and shippers to modify existing NRAs with mutual agreement, instead of establishing a new NRA, reduces bureaucracy.” Id.

DJR Logistics states that “the lifting of the requirement of having our customers formally agree to the NRA and allow for the acceptance of a booking of cargo to confirm their agreement to be in the interest of the shipping public.” DJR at 1. DJR also believes NRAs should be allowed to be amended “as market conditions change.” Id. “The ability to adjust the NRA as the market conditions change would eliminate[] hours of work and would benefit the Shipping Public by allowing us to reduce the rate being offered earlier than when the NRA expires under the current system.” Id.

The Commission recognized in the NPRM that NVOCCs and their customers “should not be compelled to create a new NRA in every instance simply because the rules do not currently provide for amendment.” 82 FR at 56786. The Commission has also acknowledged that it is appropriate to “permit NRAs to be extended or amended upon acceptance or agreement by the shipper customer.” Id. Acknowledging the utility of acceptance by booking, the Commission, furthermore, requested input on the practice—as well as whether prominent written notice should be required. The Commission also sought input on whether or not specific wording should be required. Id.

There were no commenters who opposed allowing amendments. The Commission recognizes that the smaller cargo volume of NRAs as well as the short term and transactional nature of NRAs merit greater flexibility and the benefits of allowing amendments to NRAs are recognized by the industry and the Commission alike. Some commenters, like Serra and NYNJFFF&BA, disagreed with the proposal to limit the applicability of NRA amendments to prospective shipments and urged the Commission to allow for “a change in the NRA terms after the carrier or its agent has received the cargo.” NYNJFFF&BA at 3. The Commission is denying this request and moving forward with the proposed language limiting amendments to prospective shipments. Allowing such “retroactive” amendments would be a drastic departure from the current regulatory regime governing the ocean transportation of goods. No matter the specific means of contracting for such services, i.e., tariff, service contract, NSA, or NRA, the Commission has consistently limited the applicability of amendments to prospective shipments, and the commenters have not presented a compelling reason to make such a dramatic change. NRAs, in particular, may be established and amended with little formality. Thus, retroactive amendments in the NRA context present an increased risk of error and disagreement over the applicable terms. In addition, the Commission believes that if the NVOCC already has the cargo at the time of the amendment, there would be an imbalance in bargaining power between the NVOCC and shipper and an increased possibility that a shipper would feel pressured to submit to amended terms with which they might not otherwise agree. In order to avoid this situation and ensure that any amendments truly reflect mutual agreement by the parties, the applicability of amendments is limited to prospective shipments.

The process for the parties reaching agreement for NRAs and amendments presents another area of disagreement. The majority of commenters support acceptance upon booking with no writing required. NITL and Dart both argue, however, that having a formal writing will help to avoid confusion.

The Commission does not share NITL's concerns and, under the final rule, an NRA may become binding and enforceable when the terms of an NRA are agreed to by both NRA shipper and NVOCC. The Commission is adding language to § 532.5 to clarify this point. The shipper is considered to have agreed to the terms of the NRA when: (1) The shipper provides the NVOCC with a signed agreement; (2) sends the NVOCC written communication indicating agreement to the NRA terms; or (3) books a shipment after receiving prominent notice that booking constitutes acceptance.

The Commission believes that prominent written notice, with fixed language stating that a booking constitutes acceptance, will negate the potential confusion about which Dart is concerned. The requirement that Dart calls for, specifically that a booking would need written acceptance, with the NRA number and an amendment number, would be overly burdensome for both shippers and NVOCCs.

The Commission also recognizes the request of ABS Consulting and Asia to allow “the NVOCC to receive the cargo prior to the acceptance (booking) of the cargo by the customer.” The Commission believes, however, that to allow tender prior to agreement would create the potential for an unfair environment for shippers and an increase in transactional confusion. In a situation where an NVOCC is sending multiple rate quotes during a short period of time, allowing tender to constitute shipper acceptance would substantially increase the likelihood of disagreement over which quoted terms constitute the NRA. In order to avoid such disputes, the Commission is retaining the requirement that the NRA be agreed to by both the shipper and NVOCC prior to the receipt of cargo by the NVOCC and including “prior to the receipt of cargo” in the text of § 532.5(c).

Prominent written notice will alert shippers that booking will constitute acceptance of the NRA and avoid confusion between shippers and NVOCCs. Though Serra and NYNJFFF&BA argue against the requirement of prominent written notice, the Commission believes without such notice the potential for confusion and disputes is too high. A number of commenters, including Serra, CaroTrans, NYNJFFF&BA, and Shipco also argue against requiring specific fixed language in the prominent written notice. The requirement for specific language, they argue, serves no purpose and raises the risk of noncompliance. The Commission disagrees with these contentions. Without specific language, the burden and risk of noncompliance for NVOCCs would increase, as they would be required to craft statements that qualify as “prominent written notice” an arguably ambiguous standard. In contrast, specific fixed language provides necessary clarity and certainty.

As discussed, above, Vanguard suggested the following alternative language for the prominent written notice: “Your booking and/or tendering of cargo is considered acceptance of the NRA rates and terms that were negotiated with you for the shipment of the cargo.” The Commission believes that revising the proposed notice language to incorporate certain aspects of Vanguard's suggested language will improve the language. In particular, the Commission's proposed language noted that the shipper may agree to the NRA by booking. This could be read as allowing the shipper to determine whether booking constitutes acceptance and lead to confusion. Vanguard's suggested language, on the other hand, makes clear the booking will be considered acceptance of the NRA. Accordingly, this final rule adopts the following notice language: “THE SHIPPER'S BOOKING OF CARGO AFTER RECEIVING THE TERMS OF THIS NRA OR NRA AMENDMENT CONSTITUTES ACCEPTANCE OF THE RATES AND TERMS OF THIS NRA OR NRA AMENDMENT.” 8 We also view the language “acceptance of the NRA rates and terms that were negotiated with you for the shipment of the cargo,” as suggesting that the required language be included somewhere other than the NRA terms transmitted to the shipper. To ensure that the shipper is aware of this notice, the final rule retains the proposed rule's requirement that the notice be included in the NRA terms, and includes clarifying language to that effect.

A number of individual NCBFAA/FCBF members submitted the same request that the Commission “entirely exempt NVOCCs from publishing negotiated rate arrangements (NRAs) and filing requirements.” NCBFAA/FCBF Member Comments at 1. Parker, a freight forwarder, argues that tariff filing has become outdated. Parker at 1. Parker states that “as a customer we never look at the tariffs we rely on the written quotations.” Id. Mohawk “strongly urge[s] the Commission to eliminate the need for NVOCCs to file Rate Tariffs.” Mohawk at 3. Mohawk states that “no shippers ever shop for rates in any of the remaining Rate Tariffs. Instead they ask for quotes via email or through web-based rate sourcing that have long ago stopped the need to look elsewhere. Tariffs are an archaic throwback to a time long gone . . . .” Id.

Thunderbolt supports the “elimination of the need for NVOCC's to file Rate Tariffs.” Thunderbolt at 3. RBH states “the publishing of tariffs is an outdated way of providing information that is no longer used and adds to additional expenses for our carriers that could be better served by offering more competitive rates without this clerical burden.” RBH at 1. Vanguard states that “tariffs are not used by shippers,” and requests that the Commission, “remove the requirement to provide public access to shippers to NVOCC Rules tariff.” Vanguard at 2. Serra has asked the Commission to “seriously study the possibility of using its exemption authority to remove the tariff publishing requirements for NVOCCs.” Serra at 2. Serra states that “the removal of the requirement to publish tariffs will not be detrimental to the shipping public and actually lead to a reduction in costs that will assist economic growth.” Id. Serra supports “the elimination of tariff publishing regulations both for OTI NVOCCs and ocean common carriers as they are simply not used and thus provide no benefit to the shipping public.” Id. at 3. NYNJFFF&BA supports “removal of OTI NVOCCs Tariff and Tariff Publishing Requirements.” NYNJFFF&BA at 5.

Lastly, Connor Global also “urges the Commission to eliminate the requirement for NVOCCs to file rate tariffs.” Connor Global at 3. Connor Global argues that “they are an archaic method of pursuing rates when in today's market rates are requested by email or accessed via web portals.” Id. at 3. Connor Global also argues that it is a burden to file tariffs, nobody accesses them, and they provide no benefit. Id. at 3.

The Commission has considered the request to eliminate all tariff publishing requirements. Clearly a number of commenters have argued that rate tariffs are archaic and not utilized.

As an initial matter, the Commission did not propose or consider the elimination of all tariff filing requirements for NVOCCs in the NPRM and such a change is outside the scope of this rulemaking. Moreover, data from the Commission's Bureau of Trade and Analysis demonstrates that 71 percent of NVOCCs still publish tariff rates exclusively. With such widespread use, the Commission does not believe that rate tariffs are outdated, not used, or of no benefit. Rate tariffs provide shippers access to ocean freight shipping in a non-discriminatory way. Rate tariffs are a useful tool for the shipping public and their demise would not be consistent with the Commission's approach to enhancing flexibility and choice.

To summarize the key differences between NSAs and NRAs in light of the changes made by this final rule, the Commission has prepared the following table:

The rule is not a “major rule” as defined by the Congressional Review Act, codified at 5 U.S.C. 801 et seq. The rule will not result in: (1) An annual effect on the economy of $100,000,000 or more; (2) a major increase in costs or prices; or (3) significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based companies to compete with foreign-based companies. 5 U.S.C. 804(2).

The Regulatory Flexibility Act (codified as amended at 5 U.S.C. 601-612) provides that whenever an agency promulgates a final rule after being required to publish a proposed rulemaking under the Administrative Procedure Act (APA) (5 U.S.C. 553), the agency must prepare and make available a final regulatory flexibility analysis (FRFA) describing the impact of the rule on small entities, unless the head of the agency certifies that the rulemaking will not have a significant economic impact on a substantial number of small entities. 5 U.S.C. 604-605. The Chairman of the Federal Maritime Commission certifies that this final rule will not have a significant economic impact on a substantial number of small entities.

The Commission recognizes that the majority of businesses affected by these rules qualify as small entities under the guidelines of the Small Business Administration. The rule as to part 531 (NSAs) poses no economic detriment to small businesses. In this regard, the rule pertains to an NSA entered into between a NVOCC and a shipper, which is an optional pricing arrangement that benefits the shipping public and relieves NVOCCs from the burden of the statutory tariff filing requirements in 46 U.S.C. 40501. In that the rule eliminates the requirements that NVOCCs file NSAs with the Commission and publish essential terms of such NSAs, the regulatory burden on NVOCCs utilizing NSAs is reduced. The rule as to part 532 (NRAs) establishes an optional method for NVOCCs to amend an NRA, permits additional terms to be included in NRAs, and expands the ways a shipper may accept the terms of an NRA or amendment thereto, to be used at the NVOCC's discretion. In that the rule eliminates the prohibition on amendments to NRAs after an initial shipment is received by the carrier and permits NVOCCs to more flexibly create and amend such NRAs, the regulatory burden on NVOCCs utilizing NRAs is reduced.

Upon completion of an environmental assessment, the Commission issued a Finding of No Significant Impact (FONSI) in conjunction with the NPRM, determining that this rulemaking would not constitute a major Federal action significantly affecting the quality of the human environment within the meaning of the National Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq., and that preparation of an environmental impact statement was not required. No petitions for review were filed, and the FONSI became final on December 10, 2017. The FONSI and environmental assessment are available for inspection at the Commission's Electronic Reading Room at: http://www.fmc.gov/17-10, and at the Docket Activity Library at 800 North Capitol Street NW, Washington, DC 20573, between 9 a.m. to 5 p.m., Monday through Friday, except Federal holidays. Telephone: (202) 523-5725.

This final rule meets the applicable standards in E.O. 12988 titled, “Civil Justice Reform,” to minimize litigation, eliminate ambiguity, and reduce burden.

The Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521) requires an agency to seek and receive approval from the Office of Management and Budget (OMB) before collecting information from the public. 44 U.S.C. 3507. The agency must submit collections of information in rules to OMB in conjunction with the publication of the notice of proposed rulemaking. 5 CFR 1320.11. The information collection requirements for part 531, NVOCC Service Arrangements, and Part 532 NVOCC Negotiated Rate Arrangements are currently authorized under OMB Control Numbers 3072-0070: 46 CFR part 531, NVOCC Service Arrangements, and 3072-0071: 46 CFR part 532—NVOCC Negotiated Rate Arrangements, respectively. In compliance with the PRA, the Commission submitted the proposed revised information collections to the Office of Management and Budget. Notice of the revised information collections was published in the NRPM and public comments were invited. 82 FR at 56781, 56787. Comments received regarding the proposed changes, as well as the Commission's responses, are addressed above. No comments specifically addressed the revised information collections in parts 531 and 532.

As discussed above, the final rule eliminates the requirement that NVOCCs file NSAs with the Commission and the requirement that NVOCCs publish the essential terms of NSAs. Public burden for the collection of information pursuant to part 531, NVOCC Service Arrangements, as revised, would comprise 79 likely respondents and an estimated 3,328 annual instances. The final rule will significantly reduce the burden estimate from 831 hours to 127 hours, a difference of 704 hours.

The final rule also: (1) Permits NRAs to be modified after the receipt of the initial shipment by the NVOCC; (2) permits NVOCCs to incorporate non-rate economic terms; (3) permits shipper acceptance of the NRA or amendment by booking a shipment thereunder, subject to the NVOCC incorporating in each NRA or amendment a prominent written notice that booking constitutes acceptance, the text of which is specified in part 532. Accordingly, the final rule will result in no changes to the information collection for part 532, NVOCC Negotiated Rate Arrangements.

The Commission assigns a regulation identifier number (RIN) to each regulatory action listed in the Unified Agenda of Federal Regulatory and Deregulatory Actions (Unified Agenda). The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. You may use the RIN contained in the heading at the beginning of this document to find this action in the Unified Agenda, available at http://www.reginfo.gov/public/do/eAgendaMain.

For the reasons stated in the supplementary information, the Federal Maritime Commission amends 46 CFR parts 531 and 532 as follows:

This document announces that, on June 19, 2018, OMB approved, for a period of three years, the information collection requirement relating to sections 61.201 and 61.203 of the Commission's rules, as contained in the Commission's Business Data Services Report and Order, FCC 17-43, published at 82 FR 25660, June 2, 2017. The OMB Control Number is 3060-0298. The Commission publishes this document as an announcement of the effective date of the rules. If you have any comments on the burden estimates listed below, or how the Commission can improve the collections and reduce any burdens caused thereby, please contact Nicole Ongele, Federal Communications Commission, Room 1-A620, 445 12th Street SW, Washington, DC 20554. Please include the OMB Control Number, 3060-0400, in your correspondence. The Commission will also accept your comments via email at [email protected].

To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to [email protected] or call the Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), the FCC is notifying the public that it received final OMB approval on June 19, 2018, for the information collection requirements contained in the modifications to the Commission's rules in 47 CFR part 61. Under 5 CFR part 1320, an agency may not conduct or sponsor a collection of information unless it displays a current, valid OMB Control Number.

No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a current, valid OMB Control Number. The OMB Control Number is 3060-0298.

The foregoing notice is required by the Paperwork Reduction Act of 1995, Public Law 104-13, October 1, 1995, and 44 U.S.C. 3507.

The total annual reporting burdens and costs for the respondents are as follows:

OMB Control Number: 3060-0298.

OMB Approval Date: June 19, 2018.

OMB Expiration Date: June 30, 2021.

Title: Part 61, Tariffs (Other than the Tariff Review Plan).

Form Number: N/A.

Respondents: Business or other for-profit entities.

Number of Respondents and Responses: 2,840 respondents; 5,543 responses.

Estimated Time per Response: 30-50 hours.

Frequency of Response: On occasion, annual, biennial, and one-time reporting requirements.

Obligation to Respond: Required to obtain or retain benefits. Statutory authority for this information collection (IC) is contained in 47 U.S.C. 151-155, 201-205, 208, 251-271, 403, 502, and 503 of the Communications Act of 1934, as amended.

Total Annual Burden: 195,890 hours.

Total Annual Cost: $1,369,000.

Nature and Extent of Confidentiality: Respondents are not being asked to submit confidential information to the Commission. If the Commission requests respondents to submit information which respondents believe are confidential, respondents may request confidential treatment of such information under 47 CFR 0.459 of the Commission's rules.

Privacy Act: No impact(s).

Needs and Uses: On April 20, 2017, the Commission adopted the Business Data Services Report and Order, FCC 17-43, which establishes a new regulatory framework for business data services. Under this framework, price cap incumbent LECs are no longer subject to price cap regulation of their: (a) packet-based business data services; (b) time-division multiplexing (TDM) transport business data services; (c) TDM business data services with bandwidth in excess of a DS3; and (d) DS1 and DS3 end user channel terminations, and other lower-bandwidth TDM business data services, to the extent a price cap incumbent LEC provides them in counties deemed competitive under the Commission's competitive market test or in counties for which the price cap incumbent LEC had obtained Phase II pricing flexibility under the Commission's prior regulatory regime. The Business Data Services Report and Order required that, within 36 months of its effective date (i.e., by August 1, 2020), price cap incumbent LECs must remove all business data services that are no longer subject to price cap regulation from their interstate tariffs. The Order also required that, by that same deadline, competitive LECs must remove all business data services from their interstate tariffs.

The information collected through the carriers' tariffs is used by the Commission and state commissions to determine whether services offered are just and reasonable, as the Act requires. The tariffs and any supporting documentation are examined in order to determine if the services are offered in a just and reasonable manner.

This document announces that, on July 6, 2018, OMB approved, for a period of three years, the information collection requirements contained in the Commission's Final Order, FCC 17-132, published at 82 FR 56909, December 1, 2017. The OMB Control Number is 3060-1255. The Commission publishes this notice as an announcement of the effective date of the rules. If you have any comments on the burden estimates listed below, or how the Commission can improve the collections and reduce any burdens caused thereby, please contact Cathy Williams, Federal Communications Commission, Room 1-C823, 445 12th Street SW, Washington, DC 20554. Please include the OMB Control Number, 3060-1255, in your correspondence. The Commission will also accept your comments via the internet if you send them to [email protected].

To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to [email protected] or call the Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (844) 432-2275 (videophone), or (202) 418-0432 (TTY).

As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), the FCC is notifying the public that it received OMB approval on July 6, 2018, for the information collection requirements contained in the Commission's rules at § 64.1601(d)(4)(ii) and (f).

Under 5 CFR part 1320, an agency may not conduct or sponsor a collection of information unless it displays a current, valid OMB Control Number.

No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a current, valid OMB Control Number. The OMB Control Number is 3060-1255.

The foregoing notice is required by the Paperwork Reduction Act of 1995, Public Law 104-13, October 1, 1995, and 44 U.S.C. 3507.

The total annual reporting burdens and costs for the respondents are as follows:

OMB Control Number: 3060-1255.

OMB Approval Date: July 6, 2018.

OMB Expiration Date: July 31, 2021.

Title: Rules and Policies Regarding Calling Number Identification Service—Caller ID, CC Docket No. 91-281.

Form Number: N/A. Type of Review: New collection. Respondents: Business or other for-profit entities.

Number of Respondents and Responses: 46,291 respondents; 1,705 responses.

Estimated Time per Response: 0.083 hours (5 minutes).

Frequency of Response: Monthly and on-going reporting requirements.

Obligation to Respond: Required to obtain or retain benefit. The statutory authority for the information collection requirements is found at sections 201(b) of the Communications Act of 1934, as amended, 47 U.S.C. 201(b) and section 222, 47 U.S.C. 222. The Commission's implementing rules are codified at 47 CFR 64.1600-64.1601.

Total Annual Burden: 142 hours.

Total Annual Cost: No cost.

Nature and Extent of Confidentiality: An assurance of confidentiality is not offered because this information collection does not require the collection of personally identifiable information from individuals.

Privacy Impact Assessment: No impact(s).

Needs and Uses: The Commission amended rules requiring that carriers honor privacy requests to state that § 64.1601(b) of the Commission's rules shall not apply when calling party number (CPN) delivery is made in connection with a threatening call. Upon report of such a threatening call by law enforcement on behalf of the threatened party, the carrier will provide any CPN of the calling party to law enforcement and, as directed by law enforcement, to security personnel for the called party for the purpose of identifying the party responsible for the threatening call. Carriers now have a recordkeeping requirement in order to quickly provide law enforcement with information relating to threatening calls.

The Commission also amended rules to allow non-public emergency services to receive the CPN of all incoming calls from blocked numbers requesting assistance. The Commission believes amending its rules to allow non-public emergency services access to blocked Caller ID promotes the public interest by ensuring timely provision of emergency services without undermining any countervailing privacy interests. Carriers now have a recordkeeping requirement in order to provide emergency service providers with the information they need to assist callers.