Federal Register Vol. 83, No.157,

We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2018-0708; Product Identifier 2018-NM-072-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this NPRM. We will consider all comments received by the closing date and may amend this NPRM because of those comments.

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

We have received reports of cracks in the skin and the station (STA) 540 bulkhead chord at the three fastener locations common to the drag link assembly at the STA 540 bulkhead chord. The cracks were found during the accomplishment of AD 2017-02-10, Amendment 39-18789 (82 FR 10258, February 10, 2017). The crack findings indicate that fatigue stresses in this area may be higher than predicted, and current maintenance inspections do not provide adequate opportunity for cracks to be detected. Cracking in the STA 540 bulkhead chord or skin can potentially result in the inability of a primary structural element to sustain limit load. This condition, if not addressed, could result in possible rapid decompression and loss of structural integrity of the airplane.

We reviewed Boeing Alert Service Bulletin 737-53A1368, dated February 27, 2018. This service information describes procedures for an ultrasonic inspection of the skin under the drag link assembly and repair for any cracks; repetitive inspections for any cracks, including ultrasonic inspections, high frequency eddy current (HFEC) inspections, low frequency eddy current (LFEC) inspections, and detailed inspections; and a preventive modification if no crack is found. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

This proposed AD would require accomplishment of the actions identified as “RC” (required for compliance) in the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1368, dated February 27, 2018, described previously, except for any differences identified as exceptions in the regulatory text of this proposed AD.

For information on the procedures and compliance times, see this service information at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0708.

We estimate that this proposed AD affects 1,664 airplanes of U.S. registry. We estimate the following costs to comply with this proposed AD:

We estimate the following costs to do any necessary on-condition actions that would 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 proposed AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to transport category airplanes to the Director of the System Oversight Division.

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

For the reasons discussed above, I certify this proposed regulation:

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

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

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

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

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

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2018-0538; Product Identifier 2012-NE-47-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this NPRM. We will consider all comments received by the closing date and may amend this NPRM because of those comments.

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

We issued AD 2017-03-02, Amendment 39-18793 (82 FR 10701, February 15, 2017), (“AD 2017-03-02”), for certain RR RB211 Trent 768-60, 772-60, and 772B-60 turbofan engines with LP compressor blade, part number (P/N) FK23411, FK25441, FK25968, FW11901, FW15393, FW23643, FW23741, FW23744, KH23403, or KH23404, installed. AD 2017-03-02 requires the UIs of the affected LP compressor blades. AD 2017-03-02 resulted from revised service information to reduce the inspection threshold of the UI for the LP compressor blades. We issued AD 2017-03-02 to correct the unsafe condition on these products.

Since we issued AD 2017-03-02, further analysis determined that the initial and repetitive inspection threshold described in Revision 3 of Rolls-Royce Alert Non-Modification Service Bulletin (NMSB) RB.211-72-AH465 must be further reduced from 2,400 cycles to 1,200 cycles. Therefore, RR issued Revision 4 of Alert NMSB RB.211-72-AH465, dated October 3, 2017. Also, since we issued AD 2017-03-02, the European Aviation Safety Agency (EASA) issued AD 2017-0241, dated December 6, 2017, which requires ultrasonic inspection of each affected LP compressor blade within the compliance time specified in Section 1.D. of RR Alert NMSB RB.211-72-AH465.

We reviewed Rolls-Royce Alert NMSB RB.211-72-AH465, Revision 4, dated October 3, 2017. The Alert NMSB describes procedures for performing initial and repetitive UI of the LP compressor blades. 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 also reviewed the following service information: RR NMSB RB.211-72-G702, dated May 23, 2011; RR NMSB RB.211-72-G872, Revision 2, dated March 8, 2013, or earlier revisions; RR NMSB RB.211-72-H311, dated March 8, 2013; RR Engine Manual E-Trent-1RR, Task 72-31-11-200-806; or Airbus A330 Aircraft Maintenance Manual (AMM), Tasks 72-31-41-270-801 or 72-31-41-270-802. These service documents describe the inspection procedures for the UI of the Trent 700 LP compressor blades.

We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

This proposed AD would retain all requirements of AD 2017-03-02. This proposed AD would reduce the inspection threshold for UI of the LP compressor blades from 2,400 cycles to 1,200 cycles. This proposed AD would also require accomplishing the actions specified in the service information described previously.

The compliance time of this proposed AD differs from EASA AD 2017-0241 in that, for blades with 2,400 cycles since new or cycles since last inspection on the effective date of this AD, this AD requires inspection within 30 days after the effective date of this AD. EASA AD 2017-0241 specifies that all blades must be inspected before accumulating 2,400 cycles.

We estimate that this proposed AD affects 56 engines installed on airplanes of U.S. registry.

We estimate the following costs to comply with this proposed AD:

This proposed AD provides updated labor cost for completing the UI of the LP compressor blades as a correction to AD 2017-03-02.

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.

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

For the reasons discussed above, I certify that the proposed regulation:

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

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

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

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

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

Anchorage regulation duties and powers were transferred to the Coast Guard in 1967 (32 FR 17726, Dec. 12, 1967). On December 12, 1968, the Fifth Coast Guard District published a final rule in the Federal Register (33 FR 18438) establishing an anchorage area in Baltimore Harbor, Maryland. The anchorage grounds at Baltimore, Maryland are described in 33 CFR 110.158. These anchorage grounds are involved in a federal navigation project under the jurisdiction of the U.S. Army Corps of Engineers Baltimore District. Section 101a(22) of the Water Resources Development Act of 1999 (Pub. L. 106-53, 113 Stat 269 (1999)) authorized widening of the Dundalk and Seagirt Marine Terminal channels. Widening of the Seagirt Marine Terminal channel occurred in 2015. This dredging widened the limits of existing navigation channels which are used to access key Maryland Port Administration marine terminals located immediately adjacent to the Baltimore Harbor, Maryland anchorage grounds, and put the existing anchorage grounds in the way of the newly expanded navigation channels. To addresses these changes, Sector Maryland-National Capital Region, Baltimore, Maryland, worked in coordination with the Port of Baltimore Harbor Safety and Coordination Committee to develop proposed revisions to the affected anchorage boundaries and associated regulations.

The purpose of this rulemaking is to reduce navigational safety risk and support port efficiency in Baltimore Harbor. This proposed rule would designate a new general anchorage ground developed from an existing anchorage ground that is located outside of the established navigation channel in order to align with the existing U.S. Army Corps of Engineers Baltimore District Port of Baltimore Anchorages and Channels civil works project. The Baltimore Harbor anchorage grounds are typically used by deep draft commercial cargo vessels. In order to maximize the availability and use of these important anchorages, this proposed rule would also change the duration for which vessels may remain in these anchorages. This proposed rule would reduce the duration a vessel may remain within Anchorage No. 3 Lower (proposed to be changed to Anchorage No. 3A) and Anchorage No. 4, from 72 hours to 24 hours. Lastly, due to similar provisions within the Maritime Transportation Security Act of 2002 (MTSA) (Pub. L. 107-295) and federal regulations (33 CFR part 104, and 46 CFR chapter 1, subchapters N and O), the vessel security requirements in § 110.158(d) are now redundant and would be removed as part of this proposed rule.

The legal basis for this rule is: 33 U.S.C. 471, 1221 through 1236, 2071; 33 CFR 1.05-1; and Department of Homeland Security Delegation No. 0170.1, which collectively authorize the Coast Guard to define anchorage grounds.

The Coast Guard proposes to amend the Baltimore Harbor, Maryland anchorage grounds as described in 33 CFR 110.158. The general anchorages currently listed in the regulation that would be affected by this proposed rule are Anchorage No. 2, Anchorage No. 3 Upper, Anchorage No. 3 Lower, Anchorage No. 4, Anchorage No. 5 and Anchorage No. 6.

This proposed rule would reduce the sizes of Anchorage No. 2, Anchorage No. 3 Lower, and Anchorage No. 4. These reductions would remove the portions of the anchorage grounds that are in the navigable channel. The area of Anchorage No. 2 would be reduced by approximately 16,330 square yards along its northern limit and approximately 326,770 square yards along its eastern limit. The area of Anchorage No. 3 Lower would be reduced at its eastern limit by 12,560 square yards. The area of Anchorage No. 4 would be reduced at its western limit by 6,000 square yards.

This proposed rule would rename Anchorage No. 3 Lower to Anchorage No. 3A, and rename Anchorage No. 3 Upper to Anchorage No. 3B. This proposed rule would revise Anchorage No. 2 and would create an area called Anchorage No. 3C out of existing anchorage ground from Anchorage No. 2. An area within Anchorage No. 2 that is approximately 500 yards in length and 165 yards in width, and adjacent to Anchorage No. 3 Upper, would become Anchorage No. 3C. This reconfiguration does not provide new space available for anchorage, would not restrict traffic, and is located outside of the established navigation channel. A graphic depicting these changes is included in the docket.

This proposed rule would reduce the duration a vessel may remain within Anchorage No. 3 Lower (proposed to be changed to Anchorage No. 3A) and Anchorage No. 4, from 72 hours to 24 hours. These changes are based on recommendations documented by the Port of Baltimore Harbor Safety and Coordination Committee on September 8, 2010, and the Association of Maryland Pilots. The Port of Baltimore Harbor Safety and Coordination Committee's recommendation is available in the docket. The Coast Guard agrees that the Committee's recommendation addresses the problem of ensuring maximum availability and use of these anchorages. This proposed rule would establish that a vessel may remain within Anchorage No. 3C for no more than 72 hours without permission from the Captain of the Port, to remain consistent with the regulations for Anchorage No. 2.

This rulemaking rule would renumber several paragraphs listed in 33 CFR 110.158, from (a)(3) Anchorage No. 3, Upper, general anchorage, through (a)(8) Anchorage No. 7, Dead ship anchorage. All anchorage ground descriptions would be updated to state they are in the waters of the Patapsco River, except for Anchorage No. 7, Dead ship anchorage, which would be updated to state it is in the waters of Curtis Bay. Designation of the new Anchorage No. 3C would create a new paragraph, (a)(9) for Anchorage No. 7, Dead ship anchorage. This rulemaking would modify paragraph (c)(3) of the general regulations to remove the reference to a vessel becoming “a menace” because we do not define that term and we don't believe it is needed given other factors already included in that paragraph. We also propose to change the defined term “dangerous cargo” to “certain dangerous cargo” without changing the definition, continuing to incorporate the definition of certain dangerous cargo from 33 CFR 160.202, and aligning terminology used in this proposed rule with that used throughout the rest of 33 CFR 110.158. This rulemaking would remove paragraphs (c)(4) regarding revocable permits for habitual use of an anchorage, and paragraph (d) in their entirety for reasons stated earlier.

The regulatory text we are proposing appears at the end of this document.

We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and E.O.s.

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 NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the NPRM 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.

The Coast Guard has determined this proposed rule is not a significant regulatory action because it would not interfere with existing maritime activity in Baltimore Harbor. Moreover, the proposed changes would reduce navigational safety risk in Baltimore Harbor by: (1) Aligning existing general anchorage boundaries with recent dredging projects that widened the limits of adjacent navigational channels, (2) reducing the duration a vessel may remain within an anchorage to increase availability and usage, and (3) renaming and reconfiguring general anchorages that support a proper naming and numbering convention within the existing anchorage regulation. The reconfiguration of the additional general anchorage does not provide additional anchorage area and would not restrict traffic, as it is developed from an existing anchorage and is located outside of the established navigation channel. As discussed in section III above, this proposed rule would replace the “dangerous cargo” definition with one for “certain dangerous cargo” and remove vessel security provisions that are redundant to other federal regulations.

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 proposed rule would not have a significant economic impact on a substantial number of small entities.

For the reasons stated in paragraph IV.A above, this proposed rule would not have a significant economic impact on a substantial number of small entities.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

This proposed rule would 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 proposed 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 proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this proposed 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 proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves the modification of existing anchorages within the Baltimore Harbor, Maryland anchorage grounds. Normally such actions are categorically excluded from further review under paragraph L59(a) and (b) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001, Rev. 01. A preliminary Record of Environmental Consideration supporting this determination is available in the docket where indicated in the ADDRESSES section of this preamble. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

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

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

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

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

For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 110 as follows:

Executive Summary:

Purpose of This Regulatory Action:

As discussed in more detail later in this notice of proposed rulemaking (NPRM), the proposed regulations would rescind the GE regulations and remove them from subpart Q of the Student Assistance and General Provisions in 34 CFR part 668.

We base our proposal to rescind the GE regulations on a number of findings, including research results that undermine the validity of using the regulations' debt-to-earnings (D/E) rates measure to determine continuing eligibility for participation in the programs authorized by title IV of the Higher Education Act of 1965, as amended (title IV, HEA programs). These findings were not accurately interpreted during the development of the 2014 GE regulations, were published subsequent to the promulgation of those regulations, or were presented by committee members at negotiated rulemaking sessions. The Department has also determined that the disclosure requirements included in the GE regulations are more burdensome than originally anticipated and that a troubling degree of inconsistency and potential error exists in job placement rates reported by GE programs that could mislead students in making an enrollment decision. Additionally, the Department has received consistent feedback from the community that the GE regulations were more burdensome than previously anticipated through the disclosure and reporting requirements that were promulgated in 2014.

Finally, the Department has determined that in order to adequately inform student enrollment choices and create a framework that enables students, parents, and the public to hold institutions of higher education accountable, program-level outcomes data should be made available for all title IV-participating programs. The Department plans to publish these data using the College Scorecard, or its successor site, so that students and parents can compare the institutions and programs available to them and make informed enrollment and borrowing choices. However, the College Scorecard is not the subject of this regulation. For a more detailed discussion, see Significant Proposed Regulations.

Section 410 of the General Education Provisions Act (GEPA) authorizes the Secretary to make, promulgate, issue, rescind, and amend rules and regulations governing the manner of operations of, and governing the applicable programs administered by, the Department (20 U.S.C. 1221e-3). Additionally, section 414 of the Department of Education Organization Act authorizes the Secretary to prescribe such rules and regulations as the Secretary determines necessary or appropriate to administer and manage the functions of the Secretary or the Department (20 U.S.C. 3474).

Summary of the Major Provisions of This Regulatory Action: As discussed under “Purpose of This Regulatory Action,” the proposed regulations would rescind the GE regulations. Please refer to the Summary of Proposed Changes section of this NPRM for more details on the major provisions contained in this NPRM.

Costs and Benefits: As further detailed in the Regulatory Impact Analysis, the benefits of the proposed regulations would include a reduction in burden for some institutions, costs in the form of transfers as a result of more students being able to enroll in a postsecondary program, and more educational program choices for students where they can use title IV aid.

Invitation to Comment: We invite you to submit comments regarding these proposed regulations.

To ensure that your comments have maximum effect in developing the final regulations, we urge you to identify clearly the specific section or sections of the proposed regulations that each of your comments addresses, and provide relevant information and data whenever possible, even when there is no specific solicitation of data and other supporting materials in the request for comment. We also urge you to arrange your comments in the same order as the proposed regulations. Please do not submit comments that are outside the scope of the specific proposals in this NPRM, as we are not required to respond to such comments.

We invite you to assist us in complying with the specific requirements of Executive Orders 12866 and 13563 and their overall requirement of reducing regulatory burden that might result from these proposed regulations. Please let us know of any further ways we could reduce potential costs or increase potential benefits while preserving the effective and efficient administration of the Department's programs and activities.

During and after the comment period, you may inspect all public comments about the proposed regulations by accessing Regulations.gov. You may also inspect the comments in person at 400 Maryland Ave. SW, Washington, DC, between 8:30 a.m. and 4 p.m., Eastern Time, Monday through Friday of each week except Federal holidays. To schedule a time to inspect comments, please contact the person listed under FOR FURTHER INFORMATION CONTACT.

Assistance to Individuals with Disabilities in Reviewing the Rulemaking Record: On request, we will provide an appropriate accommodation or auxiliary aid to an individual with a disability who needs assistance to review the comments or other documents in the public rulemaking record for the proposed regulations. To schedule an appointment for this type of accommodation or auxiliary aid, please contact the person listed under FOR FURTHER INFORMATION CONTACT.

The Secretary proposes to amend parts 600 and 668 of title 34 of the Code of Federal Regulations (CFR). The regulations in 34 CFR parts 600 and 668 pertain to institutional eligibility under the Higher Education Act of 1965, as amended (HEA), and participation in title IV, HEA programs. We propose these amendments to remove the GE regulations, including the D/E rates calculations and the sanctions and alternate earnings appeals related to those calculations for GE programs, as well as the reporting, disclosure, and certification requirements applicable to GE programs.

The Department seeks public comment on whether the Department should amend 34 CFR 668.14 to require, as a condition of the Program Participation Agreement, that institutions disclose, on the program pages of their websites and in their college catalogues that, if applicable, the program meets the requirements for licensure in the State in which the institution is located and whether it meets the requirements in any other States for which the institution has determined whether the program enables graduates to become licensed or work in their field; net-price, completion rates, withdrawal rates, program size, and/or any other items currently required under the GE disclosure regulations. The Department also asks whether it should require institutions to provide links from each of its program pages to College Scorecard, its successor site, or any other tools managed by the Department.

On June 16, 2017, we published a notice in the Federal Register (82 FR 27640) announcing our intent to establish a negotiated rulemaking committee under section 492 of the HEA to develop proposed regulations to revise the GE regulations published by the Department on October 31, 2014 (79 FR 64889). We also announced two public hearings at which interested parties could comment on the topics suggested by the Department and propose additional topics for consideration for action by the negotiated rulemaking committee. The hearings were held on—

July 10, 2017, in Washington, DC; and

July 12, 2017, in Dallas, TX.

Transcripts from the public hearings are available at https://www2.ed.gov/policy/highered/reg/hearulemaking/2017/index.html.

We also invited parties unable to attend a public hearing to submit written comments on the proposed topics and to submit other topics for consideration. Written comments submitted in response to the June 16, 2017, Federal Register notice may be viewed through the Federal eRulemaking Portal at www.regulations.gov, within docket ID ED-2017-OPE-0076. Instructions for finding comments are also available on the site under “Help.”

Section 492 of the HEA, 20 U.S.C. 1098a, requires the Secretary to obtain public involvement in the development of proposed regulations affecting programs authorized by title IV of the HEA. After obtaining extensive input and recommendations from the public, including individuals and representatives of groups involved in the title IV, HEA programs, the Secretary in most cases must subject the proposed regulations to a negotiated rulemaking process. If negotiators reach consensus on the proposed regulations, the Department agrees to publish without alteration a defined group of regulations on which the negotiators reached consensus unless the Secretary reopens the process or provides a written explanation to the participants stating why the Secretary has decided to depart from the agreement reached during negotiations. Further information on the negotiated rulemaking process can be found at: www2.ed.gov/policy/highered/reg/hearulemaking/hea08/neg-reg-faq.html.

On August 30, 2017, the Department published a notice in the Federal Register (82 FR 41197) announcing its intention to establish two negotiated rulemaking committees and a subcommittee to prepare proposed regulations governing the Federal Student Aid programs authorized under title IV of the HEA. The notice set forth a schedule for the committee meetings and requested nominations for individual negotiators to serve on the negotiating committee.

The Department sought negotiators to represent the following groups: Two-year public institutions; four-year public institutions; accrediting agencies; business and industry; chief financial officers (CFOs) and business officers; consumer advocacy organizations; financial aid administrators; general counsels/attorneys and compliance officers; legal assistance organizations that represent students; minority-serving institutions; private, proprietary institutions with an enrollment of 450 students or less; private, proprietary institutions with an enrollment of 451 students or more; private, non-profit institutions; State higher education executive officers; State attorneys general and other appropriate State officials; students and former students; and groups representing U.S. military service members or veteran Federal student loan borrowers. The Department considered the nominations submitted by the public and chose negotiators who would represent the various constituencies.

The negotiating committee included the following members:

Laura Metune, California Community Colleges, and Matthew Moore (alternate), Sinclair Community College, representing two-year public institutions.

Pamela Fowler, University of Michigan-Ann Arbor, and Chad Muntz (alternate), The University System of Maryland, representing four-year public institutions.

Anthony Mirando, National Accrediting Commission of Career Arts and Sciences, and Mark McKenzie (alternate), Accreditation Commission for Acupuncture and Oriental Medicine, representing accrediting agencies.

Roberts Jones, Education & Workforce Policy, and Jordan Matsudaira (alternate), Urban Institute and Cornell University, representing business and industry.

Sandy Sarge, SARGE Advisors, and David Silverman (alternate), The American Musical and Dramatic Academy, representing CFOs and business officers.

Whitney Barkley-Denney, Center for Responsible Lending, and Jennifer Diamond (alternate), Maryland Consumer Rights Coalition, representing consumer advocacy organizations.

Kelly Morrissey, Mount Wachusett Community College, and Andrew Hammontree (alternate), Francis Tuttle Technology Center, representing financial aid administrators.

Jennifer Blum, Laureate Education, Inc., and Stephen Chema (alternate), Ritzert & Layton, PC, representing general counsels/attorneys and compliance officers.

Johnson M. Tyler, Brooklyn Legal Services, and Kirsten Keefe (alternate), Empire Justice Center, representing legal assistance organizations that represent students.

Thelma L. Ross, Prince George's Community College, and John K. Pierre (alternate), Southern University Law Center, representing minority-serving institutions.

Jessica Barry, School of Advertising Art, and Neal Heller (alternate), Hollywood Institute of Beauty Careers, representing private, proprietary institutions with an enrollment of 450 students or less.

Jeff Arthur, ECPI University, and Marc Jerome (alternate), Monroe College, representing private, proprietary institutions with an enrollment of 451 students or more.

C. Todd Jones, Association of Independent Colleges & Universities in Ohio, and Tim Powers (alternate), National Association of Independent Colleges and Universities, representing private, non-profit institutions.

Christina Whitfield, State Higher Education Executive Officers Association, representing State higher education executive officers.

Christopher Madaio, Office of the Attorney General of Maryland, and Ryan Fisher (alternate), Office of the Attorney General of Texas, representing State attorneys general and other appropriate State officials.

Christopher Gannon, United States Student Association, and Ahmad Shawwal (alternate), University of Virginia, representing students and former students.

Daniel Elkins, Enlisted Association of the National Guard of the United States, and John Kamin (alternate), The American Legion's National Veterans Employment & Education Division, representing groups representing U.S. military service members or veteran Federal student loan borrowers.

Gregory Martin, U.S. Department of Education, representing the Department.

The negotiated rulemaking committee met to develop proposed regulations on December 4-7, 2017, February 5-8, 2018, and March 12-15, 2018.

At its first meeting, the negotiating committee reached agreement on its protocols and proposed agenda. The protocols provided, among other things, that the committee would operate by consensus. Consensus means that there must be no dissent by any member in order for the committee to have reached agreement. Under the protocols, if the committee reached a final consensus on all issues, the Department would use the consensus-based language in its proposed regulations. Furthermore, the Department would not alter the consensus-based language of its proposed regulations unless the Department reopened the negotiated rulemaking process or provided a written explanation to the committee members regarding why it decided to depart from that language.

During the first meeting, the negotiating committee agreed to negotiate an agenda of eight issues related to student financial aid. These eight issues were: Scope and purpose, gainful employment metrics (later renamed debt-to-earnings metrics), debt calculations, sanctions, alternate earnings appeals, program disclosures, reporting requirements, and certification requirements. Under the protocols, a final consensus would have to include consensus on all eight issues.

During committee meetings, the committee reviewed and discussed the Department's drafts of regulatory language and the committee members' alternative language and suggestions. At the final meeting on March 15, 2018, the committee did not reach consensus on the Department's proposed regulations. For this reason, and according to the committee's protocols, all parties who participated or were represented in the negotiated rulemaking and the organizations that they represent, in addition to all members of the public, may comment freely on the proposed regulations. For more information on the negotiated rulemaking sessions, please visit: https://www2.ed.gov/policy/highered/reg/hearulemaking/2017/gainfulemployment.html.

During the third meeting of the negotiated rulemaking committee, the Department provided negotiators with a number of scatterplots in response to a request from several negotiators to compare student loan repayment rates between Pell Grant recipients and students who did not receive a Pell Grant at individual institutions. The Department incorrectly concluded that the repayment rate between Pell Grant recipients and Pell Grant non-recipients at all institutions was 1:1. While the repayment rates of Pell Grant recipients and non-recipients are correlated, there is not a 1:1 relationship between them. The Department's analysis shows the difference between the repayment rates of Pell Grant recipients and non-recipients is about 20 percentage points on average. At institutions with low repayment rates among all students, the gap between Pell Grant recipients and non-recipients is relatively higher. The gap shrinks among institutions with very high overall repayment rates; however, many of these institutions serve small proportions of Pell Grant recipients and are highly selective institutions (based on mean SAT math scores). The negotiators have been informed of the earlier error and the updated scatterplots are available on the Department's GE negotiated rulemaking website.

The proposed regulations would rescind the GE regulations in subpart Q of 34 CFR part 668, which establish the eligibility requirements for a program that prepares students for gainful employment in a recognized occupation, including the D/E rates measures, alternate earnings appeals, reporting and disclosure requirements, and certifications.

We group major issues according to subject. We discuss other substantive issues under the sections of the proposed regulations to which they pertain. Generally, we do not address proposed regulatory provisions that are technical or otherwise minor in effect.

The definition of “gainful employment” established in the 2014 regulations created a new metric that established bright-line standards for a GE program's continuing participation in title IV, HEA programs.

The GE regulations establish a methodology for calculating mean D/E rates for programs that prepare students for gainful employment in a recognized occupation. The GE regulations also establish a range of acceptable D/E rates programs must maintain in order to retain eligibility to participate in the title IV, HEA programs. GE programs include non-degree programs at public and non-profit institutions and all programs (including undergraduate, graduate, and professional degree programs) at proprietary institutions.

Under the regulations, GE programs must have a graduate debt-to-discretionary earnings ratio of less than or equal to 20 percent or debt-to-annual earnings ratio of less than or equal to 8 percent to receive an overall passing rate. Programs with both a discretionary earnings rate greater than 30 percent (or a negative or zero denominator) and an annual earnings rate greater than 12 percent (or a zero denominator) receive an overall failing rate. Programs that fail the D/E rates measure for two out of three consecutive years lose title IV eligibility. Non-passing programs that have debt-to-discretionary income ratios greater than 20 percent and less than or equal to 30 percent or debt-to-annual income ratios greater than 8 percent and less than or equal to 12 percent are considered to be in the “zone.” Programs with a combination of zone or failing overall rates for four consecutive years lose title IV eligibility.

The first D/E rates were published in 2017, and the Department's analysis of those rates raises concern about the validity of the metric and how it affects the opportunities for Americans to prepare for high-demand occupations in the healthcare, hospitality, and personal services industries, among others. At a time when 6 million jobs remain unfilled due to the lack of qualified workers,1 the Department is re-evaluating the wisdom of a regulatory regime that creates additional burden for, and restricts, programs designed to increase opportunities for workforce readiness. We further believe the GE regulations reinforce an inaccurate and outdated belief that career and vocational programs are less valuable to students and less valued by society, and that these programs should be held to a higher degree of accountability than traditional two- and four-year degree programs that may have less market value.

In promulgating the 2011 and 2014 regulations, the Department cited as justification for the 8 percent D/E rates threshold a research paper published in 2006 by Baum and Schwartz that described the 8 percent threshold as a commonly utilized mortgage eligibility standard.2 However, the Baum & Schwartz paper makes clear that the 8 percent mortgage eligibility standard “has no particular merit or justification” when proposed as a benchmark for manageable student loan debt.3 The Department previously dismissed this statement by pointing to Baum and Schwartz's acknowledging the “widespread acceptance” of the 8 percent standard and concluding that it is “not unreasonable.” 79 FR 64889, 64919. Upon further review, we believe that the recognition by Baum and Schwartz that the 8 percent mortgage eligibility standard “has no particular merit or justification” when proposed as a benchmark for manageable student loan debt is more significant than the Department previously acknowledged and raises questions about the reasonableness of the 8 percent threshold as a critical, high-stakes test of purported program performance.

Research published subsequent to the promulgation of the GE regulations adds to the Department's concern about the validity of using D/E rates as to determine whether or not a program should be allowed to continue to participate in title IV programs. As noted in the 2014 proposed rule, the Department believed that an improvement of quality would be reflected in the program's D/E rates (79 FR 16444). However, the highest quality programs could fail the D/E rates measure simply because it costs more to deliver the highest quality program and as a result the debt level is higher.

Importantly, the HEA does not limit title IV aid to those students who attend the lowest cost institution or program. On the contrary, because the primary purpose of the title IV, HEA programs is to ensure that low-income students have the same opportunities and choices in pursuing higher education as their higher-income peers, title IV aid is awarded based on the institution's actual cost of attendance, rather than a fixed tuition rate that limits low-income students to the lowest cost institutions.4

Other research findings suggest that D/E rates-based eligibility creates unnecessary barriers for institutions or programs that serve larger proportions of women and minority students. Such research indicates that even with a college education, women and minorities, on average, earn less than white men who also have a college degree, and in many cases, less than white men who do not have a college degree.5

Disagreement exists as to whether this is due to differences in career choices across subgroups, time out of the workforce for childcare responsibilities, barriers to high-paying fields that disproportionately impact certain groups, or the interest of females or minority students in pursuing careers that pay less but enable them to give back to their communities. Regardless of the cause of pay disparities, the GE regulations could significantly disadvantage institutions or programs that serve larger proportions of women and minority students and further reduce the educational options available to those students.

It is also important to highlight the importance of place in determining which academic programs are available to students. A student may elect to enroll in a program that costs more simply because a lower-cost program is too far from home or work or does not offer a schedule that aligns with the student's work or household responsibilities. The average first-time undergraduate student attending a two-year public institution enrolls at an institution within eight miles of his or her home. The distance increases to 18 miles for the average first-time undergraduate student enrolling at a four-year public institution.6 Accordingly, we believe that while it is important for a student to know that a program could result in higher debt, it is not appropriate to eliminate the option simply because a lower-cost program exists, albeit outside of the student's reasonable travel distance. In the same way that title IV programs enable traditional students to select the more expensive option simply because of the amenities an institution offers, or its location in the country, they should similarly enable adult learners to select the more expensive program due to its convenience, its more personalized environment, or its better learning facilities. We support providing more information to students and parents that enables them to compare the outcomes achieved by graduates of the programs available to them. However, due to a number of concerns with the calculation and relevance of the debt level included in the rates we do not believe that the D/E rates measure achieves a level of accuracy that it should alone determine whether or not a program can participate in title IV programs.

While the Department denied the impact of these other factors in the 2014 GE regulations, it now recognizes a number of errors included in its prior analysis. For example, in the 2014 final rule (79 FR 64889, 65041-57), the Department stated that changes in economic outlook would not cause a program to fail the D/E rates measure or remain in the zone for four years. This conclusion was based on the finding that the average recession lasted for 11.1 months, which would not be long enough to impact a program's outcomes for the number of years required to go from “zone” to failing. However, the Great Recession lasted for well over two years, and was followed by an extended “jobless” recovery, which would have significantly impacted debt and earnings outcomes for a period of time that would have exceeded the zone period, had the GE regulations been in place during that period.7 The Great Recession had an unusually profound impact on recent college graduates, who were underemployed at an historic rate, meaning that graduates were working in jobs that prior to the Great Recession did not require a college credential.8 The Department concedes that an extended recession coupled with rampant underemployment, could have a significant impact on a program's D/E rates for a period of time that would span most or all of the zone period. Underemployment during the Great Recession was not limited to the graduates of GE programs, but included graduates of all types of institutions, including elite private institutions.9

The GE regulations were intended to address the problem of programs that are supposed to provide training that prepares students for gainful employment in a recognized occupation, but were leaving students with unaffordable levels of loan debt compared to the average program earnings (79 FR 16426). However, the Department believes there are other tools now available to enable students with lower incomes to manage high levels of debt. While the existence of income-driven repayment plans does not address the high cost of college—and, in fact, could make it even easier for students to borrow more than they need and institutions to charge high prices—the Department's plans to increase transparency will help address these issues. Furthermore, the increased availability of these repayment plans with longer repayment timelines is inconsistent with the repayment assumptions reflected in the shorter amortization periods used for the D/E rates calculation in the GE regulations.

In addition, a program's D/E rates can be negatively affected by the fact that it enrolls a large number of adult students who have higher Federal borrowing limits, thus higher debt levels, and may be more likely than a traditionally aged student to seek part-time work after graduation in order to balance family and work responsibilities. The Department recognizes that it is inappropriate to penalize institutions simply because the students they serve take advantage of the higher borrowing capacity Congress has made available to those borrowers. It is also inappropriate to penalize institutions because students seek part-time work rather than full-time work, or are building their own businesses, which may result in lower earnings early on. Regardless of whether students elect to work part-time or full-time, the cost to the institution of administering the program is the same, and it is the cost of administering the program that determines the cost of tuition and fees. In general, programs that serve large proportions of adult learners may have very different outcomes from those that serve large proportions of traditionally aged learners, and yet the D/E rates measure fails to take any of these important factors into account.

Most importantly, the first set of D/E rates, published in 2016, revealed that D/E rates, and particularly earnings, vary significantly from one occupation to the next, and across geographic regions within a single occupation. The Department had not predicted such substantial differences in earnings due to geography, which may have been exacerbated by the Great Recession and the speed with which individual States reduced their unemployment rate.

While the Department intended for D/E rates to serve as a mechanism for distinguishing between high- and low-performing programs, data discussed during the third session of the most recent negotiated rulemaking demonstrated that even a small change in student loan interest rates could shift many programs from a “passing” status to “failing,” or vice versa, even if nothing changed about the programs' content or student outcomes. The Department believes that examples such as that illustrated here should be corrected and our justifications in the 2014 GE regulation did not adequately take these nuances into account sufficiently. Table 1 shows how changes in interest rate would affect outcomes under the D/E rates measure. For example, if the interest rate is seven percent, 831 programs would fail compared to only 716 programs if the interest rate is six percent.

The Department agrees with a statement made by a negotiator that any metric that could render a program ineligible to participate in title IV, HEA programs simply because the economy is strong and interest rates rise is faulty. The Department believes that it is during these times of economic growth, when demand for skilled workers is greatest, that it is most critical that shorter-term career and technical programs are not unduly burdened or eliminated.

In addition, the Department now recognizes that assigning a 10-year amortization period to graduates of certificate and associate degree programs for the purpose of calculating D/E rates creates an unacceptable and unnecessary double standard since the REPAYE plan regulations promulgated in 2015 provide a 20-year amortization period for these same graduates. The REPAYE plan acknowledges that undergraduate completers may well need to extend payments over a longer amortization period, and makes it clear that extended repayment periods are an acceptable and reasonable way to help students manage their repayment obligations. Therefore, it is not appropriate to use an amortization period of less than 20 years for any undergraduate program D/E rates calculations or of less than 25 years for any graduate program D/E rates calculations.

As the Department is proposing to rescind the GE regulations in total, the disclosures required under the current regulations also would be rescinded. Generally, we are concerned that it is not appropriate to require these types of disclosures for only one type of program when such information would be valuable for all programs and institutions that receive title IV, HEA funds. However, we cannot expand the GE regulations to include programs that are not GE programs. In that regard, as indicated above, we are interested in comments on whether the Department should require that all institutions disclose information, such as net price, program size, completion rates, and accreditation and licensing requirements, on their program web pages, or if doing so is overly burdensome for institutions.

The Department has also discovered a variety of challenges and errors associated with the disclosures required under the GE regulations. For example, there is significant variation in methodologies used by institutions to determine and report in-field job placement rates, which could mislead students into choosing a lower performing program that simply appears to be higher performing because a less rigorous methodology was employed to calculate in-field job placement rates.

In some cases, a program is not required to report job placement outcomes because it is not required by its accreditor or State to do so. In other cases, GE programs at public institutions in some States (such as community colleges in Colorado) define an in-field job placement for the purpose of the GE disclosure as any job that pays a wage, regardless of the field in which the graduate is working. Meanwhile, institutions accredited by the Accrediting Commission of Career Schools and Colleges must consider the alignment between the job and the majority of the educational and training objectives of the program, which can be a difficult standard to meet since educational programs are designed to prepare students broadly for the various jobs that may be available to them, but jobs are frequently more narrowly defined to meet the needs of a specific employer.11

The original 2011 GE regulations required NCES to “develop a placement rate methodology and the processes necessary for determining and documenting student employment.” 12 This requirement arose out of negotiator concerns about the complexity and subjectivity of the many job placement definitions used by States, institutional accreditors, programmatic accreditors and institutions themselves to evaluate outcomes. The Department convened a Technical Review Panel (TRP), but in 2013 the TRP reported that not only were job placement determinations “highly subjective” in nature, but that the TRP could not come to consensus on a single, acceptable definition of a job placement that could be used to report this outcome on GE disclosures, nor could it identify a reliable data source to enable institutions to accurately determine and report job placement outcomes.13 In light of the failure of the TRP to develop a consistent definition of a job placement, and well-known instances of intentional or accidental job placement rate misrepresentations, the Department believes it would be irresponsible to continue requiring institutions to report job placement rates. Instead, the Department believes that program-level earnings data that will be provided by the Secretary through the College Scorecard or its successor is the more accurate and reliable way to report job outcomes in a format that students can use to compare the various institutions and programs they are considering.

The Department also believes that it underestimated the burden associated with distributing the disclosures directly to prospective students. In 2018, the Department announced that it was allowing institutions additional time to meet the requirement in § 668.412(e) to directly distribute the disclosure template to prospective students, as well as the requirement in § 668.412(d) to include the disclosure template or a link thereto in program promotional materials, pending negotiated rulemaking (82 FR 30975; 83 FR 28177). A negotiator representing financial aid officials confirmed our concerns, stating that large campuses, such as community colleges that serve tens of thousands of students and are in contact with many more prospective students, would not be able to, for example, distribute paper or electronic disclosures to all the prospective students in contact with the institution. Although in decades past, institutions may have included these materials in the packets mailed to a prospective student's home; many institutions no longer mail paper documents, and instead rely on web-based materials and electronic enrollment agreements. The Department notes that § 668.412(e) requires that disclosures be made only to a prospective student before that individual signs an enrollment agreement, completes registration, or makes a financial commitment to the institution and that the institution may provide the disclosure to the student by hand-delivering the disclosure template to the prospective student or sending the disclosure template to the primary email address used by the institution for communicating with the prospective student. However, ED recognizes that even this requirement has an associated burden, especially since institutions are required to retain documentation that each student acknowledges that they have received the disclosure. The Department believes that the best way to provide disclosures to students is through a data tool that is populated with data that comes directly from the Department, and that allows prospective students to compare all institutions through a single portal, ensuring that important consumer information is available to students while minimizing institutional burden.

Finally, more than a few disclosures exclude outcomes because the program had fewer than 10 graduates in the award year covered by the disclosure template. Because the Department does not collect data from the disclosures through a central portal or tool, it has been unable to compare the number of completers reported on the GE disclosures posted by programs with the number reported through other survey tools. Therefore, it is difficult to know if these reports of less than 10 graduates are accurate.

Under its general authority to publish data related to title IV program outcomes, and in light of changes to the National Student Loan Data System related to the 150% subsidized loan rules requiring institutions to report program CIP codes, the Department believes that it is important and necessary to publish program-level student outcomes to inform consumer choice and enable researchers and policy makers to analyze program outcomes. The Department does not believe that GE data can adequately meet this goal or inform consumer choice since only a small proportion of postsecondary programs are required to report program-level outcomes data and, even among GE programs, many programs graduate fewer than 10 students per year and are not required to provide student outcome information on the GE disclosure. In addition, the Department does not believe it is appropriate to attach punitive actions to program-level outcomes published by some programs but not others. In addition, the Department believes that it is more useful to students and parents to publish actual median earnings and debt data rather than to utilize a complicated equation to calculate D/E rates that students and parents may not understand and that cannot be directly compared with the debt and earnings outcomes published by non-GE programs. For all the reasons set forth in this NPRM, the Department believes it would be unwise policy to continue using the D/E rates for reporting or eligibility purposes.

In addition, the GE regulations targeted proprietary institutions, aiming to eliminate poor performers and “bad actors” in the sector. While bad actors do exist in the proprietary sector, the Department believes that there are good and bad actors in all sectors and that the Department, States, and accreditors have distinct roles and responsibilities in holding all bad actors accountable. Prior to 2015, when the Department started collecting program-level data for all completers, the GE regulations provided a unique opportunity for the Department to calculate program-level outcomes. Now that the Department collects program information for all completers, it can easily expand program-level outcomes reporting for all institutions. Therefore, not only does the Department believe that the D/E rates calculation is not an appropriate measure for determining title IV eligibility, the availability of program-level data for all completers makes it possible to provide median earnings and debt data for all programs, thereby providing a more accurate mechanism for providing useful information to consumers.

Further, the Department has reviewed additional research findings, including those published by the Department in follow-up to the Beginning Postsecondary Survey of 1994, and determined that student demographics and socioeconomic status play a significant role in determining student outcomes.14 The GE regulations failed to take into account the abundance of research that links student outcomes with a variety of socioeconomic and demographic risk factors, and similarly failed to acknowledge that institutions serving an older student population will likely have higher median debt since Congress has provided higher borrowing limits for older students who are less likely than traditional students to receive financial support from parents.

Students select institutions and college majors for a wide variety of reasons, with cost and future earnings serving as only two data points within a more complex decision-making process. For the reasons cited throughout this document, the Department has reconsidered its position.

Well-publicized incidents of non-profit institutions misrepresenting their selectivity levels, inflating the job placement rates of their law school graduates, and even awarding credit for classes that never existed demonstrate that bad acts occur among institutions regardless of their tax status.15 16 17 18

The GE regulations underestimated the cost of delivering a program and practices within occupations that may skew reported earnings. According to Delisle and Cooper, because public institutions receive State and local taxpayer subsidies, “even if a for-profit institution and a public institution have similar overall expenditures (costs) and graduate earnings (returns on investment), the for-profit institution will be more likely to fail the GE rule, since more of its costs are reflected in student debt.” 19 Non-profit, private institutions also, in general, charge higher tuition and have students who take on additional debt, including enrolling in majors that yield societal benefits, but not wages commensurate with the cost of the institution.

Challenges have been brought alleging cosmetology and hospitality programs have felt a significant impact due to the GE regulations. In the case of cosmetology programs, State licensure requirements and the high costs of delivering programs that require specialized facilities and expensive consumable supplies may make these programs expensive to operate, which may be why many public institutions do not offer them. In addition, graduates of cosmetology programs generally must build up their businesses over time, even if they rent a chair or are hired to work in a busy salon.

Finally, since a great deal of cosmetology income comes from tips, which many individuals fail to accurately report to the Internal Revenue Service, mean and median earnings figures produced by the Internal Revenue Service under-represent the true earnings of many workers in this field in a way that institutions cannot control.20 Litigation filed by the American Association of Cosmetology Schools (AACS) asserting similar claims highlighted the importance of the alternate earnings appeal to allow institutions to account for those earnings.

While the GE regulations include an alternate earnings appeals process for programs to collect data directly from graduates, the process for developing such an appeal has proven to be more difficult to navigate than the Department originally planned. The Department has reviewed earnings appeal submissions for completeness and considered response rates on a case-by-case basis since the response rate threshold requirements were set aside in the AACS litigation. Through this process, the Department has corroborated claims from institutions that the survey response requirements of the earnings appeals methodology are burdensome given that program graduates are not required to report their earnings to their institution or to the Department, and there is no mechanism in place for institutions to track students after they complete the program. The process of Departmental review of individual appeals has been time-consuming and resource-intensive, with great variations in the format and completeness of appeals packages. The contents of some of these review packages would suggest continued confusion about requirements on the part of schools that would be problematic if those earnings were still tied to any kind of eligibility threshold.

Executive Order 13777 instructs agencies to reduce unnecessary burden on regulated entities, while at the same time emphasizing the need for greater transparency. The Department believes that its proposed rescission of the GE regulations is consistent with Executive Order 13777 because the GE regulations place tremendous burden upon certain programs and institutions, as evidenced by comments from negotiators representing institutions not currently covered by the GE regulations that extending the regulations to include their institution would impose tremendous and costly burden. As noted by various associations and institutions in response to the Department's request for public feedback on which regulations should be repealed, modified, or replaced, a large number of community colleges whose GE programs have not been in danger of failing the D/E rates measure have complained about the cost of complying with the GE regulations, which has been viewed as far out of proportion with the corresponding student benefits. For example, the American Association of Community Colleges pointed to the regulations' extensive reporting and disclosure requirements.21 Despite this additional burden to GE programs, the GE regulations provide only limited transparency since the regulations apply to a small subset of title IV-eligible programs. Instead, the Department believes that its efforts to expand the College Scorecard, which includes all programs that participate in the title IV, HEA programs, to include program-level earnings, debt, and other data, will better accomplish our goal of increasing transparency.

The GE regulations include, among other things, a complicated formula for calculating a program's D/E rates, a set of thresholds that are used to determine whether a program's D/E rates are passing, failing, or in the zone, and a number of disclosure requirements. The D/E rates measure compares median student loan debt (including institutional, private, and Federal loan debt), as reported by institutions and the National Student Loan Data System, to the higher of mean and median earnings obtained from the Social Security Administration.

Further, we believe that the analysis and assumptions with respect to earnings underlying the GE regulations are flawed. In 2014, upon the introduction of the GE regulations, the Department claimed that graduates of many GE programs had earnings less than those of the average high school dropout.22 The Washington Post highlighted several errors in this comparison including that the Department failed to explain that the three-year post-graduation GE earnings compared the earnings of recent graduates with the earnings of a population of high school graduates that could include those who are nearing the end of 40-year careers or who own successful long-existing businesses.23 Further comparisons to non-college graduates need to be contextualized, given that the average person who completes a registered apprenticeship earns a starting salary of more than $60,000 per year, and some college graduates who pursue careers in allied health, education, or human services—regardless of what college they attended—earn less than non-college graduates who complete an apprenticeship program.24

The Census Bureau, in its landmark 2002 report, The Big Payoff, was careful to explain that individual earnings may differ significantly due to a variety of factors, including an individual's work history, college major, personal ambition, and lifestyle choices.25 The report also pointed out that even some individuals with graduate degrees, such as those in social work or education, may fail to earn as much as a high school graduate who works in the skilled trades. In other words, both debt and earnings outcomes depend on a number of factors other than program quality or institutional performance. There are tremendous complexities involved in comparing earnings, especially since prevailing wages differ significantly from one occupation to the next and one geographic region to the next.26 Therefore, a bright-line D/E rates measure ignores the many research findings that were either not taken into account in publishing the GE regulations or that were published since the GE regulations were promulgated, that have demonstrated over and over again that gender, socioeconomic status, race, geographic location, and many other factors affect earnings.27 28 29 Even among the graduates of the Nation's most prestigious colleges, earnings vary considerably depending upon the graduate's gender, the field the graduate pursued, whether or not the graduate pursued full-time work, and the importance of work-life balance to the individual.30 And yet, the Department has never contended that the majors completed by the lower-earning graduates were lower performing or lower quality than those that result in the highest wages.

The Department published in the Federal Register on November 1, 2016, regulations known as the Borrower Defenses to Repayment (BD) regulations (81 FR 75926). The effective date of the BD regulations was most recently delayed until July 1, 2019 (83 FR 6458) to allow for additional negotiated rulemaking to reconsider those regulations. Following the conclusion of the negotiated rulemaking process, on July 31, 2018, the Department published in the Federal Register a notice of proposed rulemaking in which the Department proposes, among other things, to withdraw (i.e., rescind) specified provisions of the BD regulations already published but not yet effective.

Among these BD regulations are two disclosures that were included among the topics for negotiation by the GE negotiating committee, as part of the larger discussion about the disclosure requirements in the GE regulations. One of these provisions would have required proprietary institutions to provide a warning to students if the loan repayment rate for the institution did not meet a specified bright-line standard. The other provision would have required institutions to notify students if the institution was required under other provisions of the BD regulations to provide the Department with financial protection, such as a letter of credit.

In response to the 2016 Borrower Defense proposed regulations, the Department received many comments contending that the regulations unfairly targeted proprietary institutions (81 FR 75934). Others commented that the loan repayment rate disclosure reflected financial circumstances and not educational quality. The Department believes that these comments are in line with how the Department views GE and the reasons provided for rescinding it. As such, the Department also proposes to remove the requirement for institutions to disclose information related to student loan repayment rates. With respect to the financial protection disclosure, the Department believes that matters such as the calculation of an institution's composite score and requirements regarding letters of credit are complex and beyond the level of understanding of a typical high school graduate considering enrollment in a postsecondary education program. Therefore, a student may misjudge the meaning of such a disclosure to indicate the imminent closure of the institution, which is not necessarily the case. While in certain instances, a letter of credit may serve as an indicator of financial risk to taxpayers, there are other instances where this may not be the case. Therefore, the Department proposes to remove the requirement for institutions to disclose that they are required to post a letter of credit and the related circumstances.

In discussion with the negotiators, those representing attorneys general, legal organizations, and student advocacy groups opposed eliminating these disclosures because they believed the disclosures would benefit students. However, the Department believes that these disclosures will not provide meaningful or clear information to students, and will increase cost and burden to institutions that would have to disclose this information.

Although these two disclosures were discussed by the negotiated rulemaking committee convened to consider the GE regulations, because they are formally associated with the borrower defense regulations, their proposed withdrawal is addressed through the proposed regulatory text in the 2018 notice of proposed rulemaking relating to the BD regulations.

In summary, the Department proposes to rescind the GE regulations for a number of reasons, including:

• Research findings published subsequent to the promulgation of the regulation confirm that the D/E rates measure is inappropriate for determining an institution's continuing eligibility for title IV participation;

• A review of GE disclosures posted by institutions over the last two years has revealed troubling inconsistencies in the way that job placement rates are determined and reported;

• The use of a standardized disclosure template and the physical distribution of disclosures to students is more burdensome than originally predicted; and

• GE outcomes data reveal the disparate impact that the GE regulation has on some academic programs.

In July 2018, the Department published a notice of proposed rulemaking that more appropriately addresses concerns about institutional misrepresentation by providing direct remedies to students harmed by such misrepresentations (83 FR 37242). In addition, the Department believes that by publishing outcomes data through the College Scorecard for all title IV participating programs, it will be more difficult for institutions to misrepresent likely program outcomes, including earnings or job placement rates, which should not be determined or published until such time that a reliable data source is identified to validate such data. For the reasons cited above, the Department proposes to amend or rescind the GE regulations.

The Department proposes to rescind the GE regulations because, among other things, they are based on a D/E metric that has proven to not be an appropriate proxy for use in determining continuing eligibility for title IV participation; they incorporate a threshold that the researchers whose work gave rise to the standard questioned the relevance of to student loan borrowing levels; and they rely on a job placement rate reporting requirement that the Department was unable to define consistently or provide a data source to ensure its reliability and accuracy and that has since been determined is unreliable and vulnerable to accidental or intentional misreporting. In addition, because the GE regulations require only a small portion of higher education programs to report outcomes, they do not adequately inform consumer choice or help borrowers compare all of their available options.

Therefore, the Department proposes to rescind the GE regulations. Removal of the GE regulations would include removing the provisions in § 668.401 through § 668.415, including the provisions regarding the scope and purpose of those regulations (§ 668.401), the gainful employment framework (§ 668.403), calculating D/E rates, issuing and challenging those rates, and providing for a D/E rates alternate earnings appeal (§ 668.404-§ 668.406). Consequently, by removing the provisions pertaining to the D/E rates measure, the consequences of the D/E rates measure would also be removed from the regulations (§ 668.410), as well as the required certifications (§ 668.414). In addition, current sections that condition title IV eligibility on outcomes under the D/E rates measure, the methodology for calculating the D/E rates, the reporting requirements necessary to calculate D/E rates and certain other certifications and disclosures, and subpart R pertaining to program cohort default rates, a potential disclosure item, would no longer be required, and the Department proposes to remove those sections, as well (§§ 668.411-668.413; subpart R).

Proposed § 600.10(c)(1) would remove current paragraph (i) and redesignate the remaining paragraphs. Current § 600.10(c)(1)(i) establishes title IV eligibility for GE programs. The Department's proposed regulations would remove the GE regulations referenced in this paragraph, and therefore we are proposing to remove this paragraph and renumber this section. This technical correction was proposed during the negotiations because the Department proposed removing the GE regulations and moving to a disclosure-only framework. Discussion related to the removal of sanctions and the disclosure framework is summarized above, but there were no additional comments made solely on this technical change. Additionally, proposed § 600.10(c)(1)(iii) would require programs that are at least 300 clock hours but less than 600 clock hours and do not admit as regular students only persons who have completed the equivalent of an associate's degree to obtain the Secretary's approval to be eligible for title IV aid student loans. This is consistent with § 668.8(d) where programs of at least 300 clock hours are referenced and is consistent with the statute. This proposal was also made during the negotiations, but the committee did not have comments related to this aspect of the proposals.

The Department also proposes to remove references to subpart Q in § 600.21(a)(11) as part of its proposed removal of the GE regulations. Likewise, we propose technical edits to § 668.8(d) to remove references to subpart Q. The Department also proposes to remove and reserve current § 668.6, which lists disclosure requirements for GE programs that ceased to have effect upon the effective date of the disclosure requirements under the 2014 GE regulations.

Under Executive Order 12866, it must be determined whether this regulatory action is “significant” and, therefore, subject to the requirements of the Executive order and subject to review by the Office of Management and Budget (OMB). Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action likely to result in a rule that may—

(1) Have an annual effect on the economy of $100 million or more, or adversely affect a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities in a material way (also referred to as an “economically significant” rule);

(2) Create serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles stated in the Executive order.

This proposed regulatory action is an economically significant regulatory action subject to review by OMB under section 3(f) of Executive Order 12866 because it would have an annual effect on the economy of over $100 million.

Under Executive Order 13771, for each new regulation that the Department proposes for notice and comment or otherwise promulgates that is a significant regulatory action under Executive Order 12866 and that imposes total costs greater than zero, it must identify two deregulatory actions. For FY 2018, any new incremental costs associated with a new regulation must be fully offset by the elimination of existing costs through deregulatory actions, unless required by law or approved in writing by the Director of the OMB. Because these proposed regulations do not impose total costs greater than zero, the requirement to offset new regulations in Executive Order 13771 would not apply.

We have also reviewed these regulations under Executive Order 13563, which supplements and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, Executive Order 13563 requires that an agency—

(1) Propose or adopt regulations only on a reasoned determination that their benefits justify their costs (recognizing that some benefits and costs are difficult to quantify);

(2) Tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives and taking into account—among other things, and to the extent practicable—the costs of cumulative regulations;

(3) In choosing among alternative regulatory approaches, select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity);

(4) To the extent feasible, specify performance objectives, rather than the behavior or manner of compliance a regulated entity must adopt; and

(5) Identify and assess available alternatives to direct regulation, including economic incentives—such as user fees or marketable permits—to encourage the desired behavior, or provide information that enables the public to make choices.

Executive Order 13563 also requires an agency “to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.” The Office of Information and Regulatory Affairs of OMB has emphasized that these techniques may include “identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes.”

We are issuing this proposed regulatory action only on a reasoned determination that its benefits justify its costs. In choosing among alternative regulatory approaches, we selected those approaches that would maximize net benefits. Based on the analysis that follows, the Department believes that these proposed regulations are consistent with the principles in Executive Order 13563.

We also have determined that this regulatory action would not unduly interfere with State, local, and Tribal governments in the exercise of their governmental functions.

In accordance with the Executive orders, the Department has assessed the potential costs and benefits, both quantitative and qualitative, of this regulatory action. This proposed regulatory action would have an annual economic benefit of approximately $209 million in reduced paperwork burden and increased transfers to Pell Grant recipients and student loan borrowers and subsequently institutions of about $518 million annually at the 7 percent discount rate, as further explained in the Analysis of Costs and Benefits section.

This regulatory action is necessary to comply with Executive Order 13777, whereby the President instructed agencies to reduce unnecessary burden on regulated entities and to increase transparency. Because the GE regulations significantly burden certain programs and institutions but provide limited transparency at only a small subset of title IV-eligible programs, the Department proposes to rescind them.

Furthermore, when developing the GE regulations, the Department, as noted in feedback received from multiple institutions, underestimated the burden on institutions associated with the use of a standardized disclosure template in publishing program outcomes and distributing notifications directly to prospective and current students. For example, the estimate did not include an assessment of burden on the government to support the development of an approved disclosure template and the distribution of the template populated with the appropriate data. The Department has determined that it would be more efficient to publish data using the College Scorecard, not only to reduce reporting burden but to enable students to more readily review the data and compare institutions.

These proposed regulations would affect prospective and current students; institutions with GE programs participating in the title IV, HEA programs; and the Federal government. The Department expects institutions and the Federal government would benefit as the action would remove highly burdensome reporting, administrative costs, and sanctions. The Department has also analyzed the costs of this regulatory action and has determined that it would impose no additional costs ($0). As detailed earlier, pursuant to this proposed regulatory action, the Department would remove the GE regulations and adopt no new ones.

The proposed removal of the GE regulations may result in both costs and benefits to students, including the costs and benefits associated with continued enrollment in zone and failing GE programs and the benefit of reduced information collections. Students may see costs from continued enrollment in programs that may have, if the GE regulations were in effect, lost title IV eligibility and the student would have discontinued enrollment. Students may also see benefits from not having to transfer to another institution in cases where their program would have lost title IV eligibility. Burden on students will be reduced by not having to respond to schools to acknowledge receipt of disclosures.

There are student costs and benefits associated with enrollment in a program that would have otherwise lost eligibility to participate in the title IV, HEA programs under the GE regulations; however, the actual outcome for students enrolled in failing or zone programs under the GE regulations is unknown. Under the GE regulations, if a GE program becomes ineligible to participate in the title IV, HEA programs, students would not be able to receive title IV aid to enroll in it. Because D/E rates have been calculated under the GE regulations for only one year, no programs have lost title IV, HEA eligibility. However, 2,050 programs were identified as failing programs or programs in the zone based on their 2015 GE rates and are at risk of losing eligibility under the GE regulations. In 2015-16, 329,250 students were enrolled in zone GE programs and 189,920 students were enrolled in failing programs.

Under the proposed regulations, the Department would discontinue certain GE information collections, which is detailed further in the Paperwork Reduction Act of 1995 section of this preamble. Two of these information collections impact students—OMB control number 1845-0123 and OMB control number 1845-0107. By removing these collections, the proposed regulations would reduce burden on students by 2,167,129 hours annually. The burden associated with these information collections is attributed to students being required to read the warning notices and certify that they received them. Therefore, using the individual hourly rate of $16.30, the benefit due to reduced burden for students is $35,324,203 annually (2,167,129 hours per year * $16.30 per hour).

The proposed regulations would also benefit institutions administering GE programs. These institutions would have a reduced paperwork burden and no longer be subject to a potential loss of title IV eligibility. The table below shows the distribution of institutions administering GE programs by sector.

All 2,617 institutions with GE programs would see savings from reduced reporting requirements due to removal of the GE regulations. As discussed further in the Paperwork Reduction Act of 1995 section of this preamble, reduction in burden associated with removing the GE regulatory information collections for institutions is 4,758,499 hours. Institutions would benefit from these proposed changes, which would reduce their costs by $173,923,138 annually using the hourly rate of $36.55.

Under the proposed regulations, programs that had or have D/E rates that are failing or in the zone could see benefits because they would no longer be subject to sanctions, incur the cost of appealing failing or zone D/E rates, or be at risk of losing their title IV eligibility. Specifically, 778 institutions administering 2,050 zone or failing GE programs would receive these benefits, which represents 24 percent of the 8,650 2015 GE programs. Disaggregation of these program counts and counts by institutional type are provided in the table below.

Cosmetology undergraduate certificate programs are the most common type of program in the zone or failing categories. Among the 895 cosmetology undergraduate certificate programs with

Under the proposed regulations, the Federal government would benefit from reduced administrative burden associated with removing provisions in the GE regulations and from discontinuing information collections. The Federal government would incur annual costs to fund more Pell Grants and title IV loans, as discussed in the Net Budget Impact section.

Reduced administrative burden due to the proposed regulatory changes would result from removing the provisions in the GE regulations regarding sending completer lists to institutions, adjudicating completer list corrections, adjudicating challenges, and adjudicating alternate earnings appeals. Under the GE regulations, the Department expects to receive about 500 earnings appeals annually and estimates that it would take Department staff 10 hours per appeal to evaluate the information submitted. Using the hourly rate of a GS-13 Step 1 in the Washington, DC area of $46.46,34 the estimated benefit due to reduced costs from eliminating earnings appeals is $232,300 annually (500 earnings appeals * 10 hours per appeal * $46.46 per hour). Similarly, the Department sends out 31,018 program completer lists to institutions annually and estimates that it takes about 40 hours total to complete. Using the hourly rate of a GS-14 Step 1 in the Washington, DC area of $54.91,35 the estimated benefit due to reduced costs from eliminating sending completer lists is $2,196 annually (40*54.91). Institutions can correct and challenge the lists, and for the 2015 D/E rates the Department processed 90,318 completer list corrections and adjudicated 2,894 challenges. The Department estimates it took Department staff 1,420 hours total to make completer list corrections. Similarly, the Department estimates it took $1,500,000 in contractor support and 1,400 hours of Federal staff time total to adjudicate the challenges. Using the hourly rate of a GS-13 step 1 in the Washington, DC area of $46.46, the estimated benefit due to reduced costs from eliminating completer lists, corrections, and challenges is $1,631,017 ($1,500,000 contractor support + (1420 + 1400) staff hours * $46.46 per hour).

Finally, under the proposed regulations, the Department would rescind information collections with OMB control numbers 1845-0121, 1845-1022, and 1845-0123. This would result in a Federal government benefit due to reduced contractor costs of $23,099,946 annually. Therefore, the Department estimates an annual benefit due to reduced administrative costs under the proposed regulations of $24,965,459 ($232,300 + $2,196 + $1,631,017 + $23,099,946).

The Department would also incur increased budget costs due to increased transfers of Pell Grants and title IV loans, as discussed further in the Net Budget Impacts section. The estimated annualized costs of increased Pell Grants and title IV loans from eliminating the GE regulations is approximately $518 to $527 million at 7 percent and 3 percent discount rates, respectively. The Department recognizes that this may be offset by student and institutional response to institutional and program level disclosures in the College Scorecard and other resources, but, as discussed in the Net Budget Impact section, the Department does not specifically quantify those impacts.

The Department proposes to remove the GE regulations, which include provisions for GE programs' loss of title IV, HEA program eligibility based on performance on the D/E rates measure. In estimating the impact of the GE regulations at the time they were developed and in subsequent budget estimates, the Department attributed some savings in the Pell Grant program based on the assumption that some students, including prospective students, would drop out of postsecondary education as their programs became ineligible or imminently approached ineligibility.

This assumption has remained in the baseline estimates for the Pell Grant program, with an average of approximately 123,000 dropouts annually over the 10-year budget window from FY2019 to FY2028. By applying the estimated average Pell Grant per recipient for proprietary institutions ($3,649) for 2019 to 2028 in the PB2019 Pell Baseline, the estimated net budget impact of the GE regulations in the PB2019 Pell baseline is approximately $−4.5 billion. As was indicated in the Primary Student Response assumption in the 2014 GE final rule,36 much of this impact was expected to come from the warning that a program could lose eligibility in the next year. If we attribute all of the dropout effect to loss of eligibility, it would generate a maximum estimated Federal net budget impact of the proposed regulations of $4.5 billion in costs by removing the GE regulations from the PB2019 Pell Grant baseline.

The Department also estimated an impact of warnings and ineligibility in the analysis for the final 2014 GE rule, that, due to negative subsidy rates for PLUS and Unsubsidized loans at the time, offset the savings in Pell Grants by $695 million.37 The effect of the GE regulations is not specifically identified in the PB2019 baseline, but it is one of several factors reflected in declining loan volume estimates. The development of GE regulations since the first negotiated rulemaking on the subject was announced on May 26, 2009, has coincided with demographic and economic trends that significantly influence postsecondary enrollment, especially in career-oriented programs classified as GE programs under the GE regulations. Enrollment and aid awarded have both declined substantially from peak amounts in 2010 and 2011.

As classified under the GE regulations, GE programs serve non-traditional students who may be more responsive to immediate economic trends in making postsecondary education decisions. Non-consolidated title IV loans made at proprietary institutions declined 48 percent between AY2010-11 and AY2016-17, compared to a 6 percent decline at public institutions, and a 1 percent increase at private institutions. The average annual loan volume change from AY2010-11 to AY2016-17 was −10 percent at proprietary institutions, −1 percent at public institutions, and 0.2 percent at private institutions. If we attribute all of the excess decline at proprietary institutions to the potential loss of eligibility under the GE regulations and increase estimated volume in the 2-year proprietary risk group that has the highest subsidy rate in the PB2019 baseline by the difference in the average annual change (12 percent for subsidized and unsubsidized loans and 9 percent for PLUS), then the estimated net budget impact of the removal of the ineligibility sanction in the proposed regulations on the Direct Loan program is a cost of $848 million.

Therefore, the total estimated net budget impact from the proposed regulations is $5.3 billion cost in increased transfers from the Federal government to Pell Grant recipients and student loan borrowers and subsequently to institutions, primarily from the elimination of the ineligibility provision of the GE regulations. However, this estimate assumes that a borrower who could no longer enroll in a GE program that loses title IV eligibility would not enroll in a different program that passes the D/E rates measure, but would instead opt out of a postsecondary education experience. The long-term impact to the student and the government of the decision to pursue no postsecondary education could be significant, but cannot be estimated for the purpose of this analysis.

This is a maximum net budget impact and could be offset by student and institutional behavior in response to disclosures in the College Scorecard and other resources. Generally, the Department does not attribute a significant budget impact to disclosure requirements absent substantial evidence that such information will change borrower or institutional behavior. The Department welcomes comments on the net budget impact analysis. Information received will be considered in development of the Net Budget Impact analysis of the final rule.

As required by OMB Circular A-4 we have prepared an accounting statement showing the classification of the expenditures associated with the provisions of the proposed regulations (see Table 5). This table provides our best estimate of the changes in annual monetized transfers as a result of the proposed regulations. The estimated reduced reporting and disclosure burden equals the −$209 million annual paperwork burden calculated in the Paperwork Reduction Act of 1995 section (and also appearing on page 65004 of the regulatory impact analysis accompanying the 2014 final rule). The annualization of the paperwork burden differs from the 2014 final rule as the annualization of the paperwork burden for that rule assumed the same pattern as the 2011 rule that featured multiple years of data being reported in the first year with a significant decline in burden in subsequent years.

The Commission initiates this notice of proposed rulemaking (NPR) to partially rescind the rule concerning procedures for mail preparation changes in response to the recent decision in United States Postal Serv. v. Postal Reg. Comm'n, 886 F.3d 1253 (D.C. Cir. 2018).

In Docket No. R2013-10R, the Commission determined that a change to the Intelligent Mail Barcoding (IMb) requirements constituted a change in rates requiring compliance with the price cap under 39 U.S.C. 3622.1 The Postal Service appealed the Commission's determination to the United States Court of Appeals for the District of Columbia (the Court). In United States Postal Serv. v. Postal Reg. Comm'n, 785 F.3d 740, 751 (D.C. Cir. 2015), the Court found that “changes in rates” under 39 U.S.C. 3622 could include changes to mail preparation requirements and were not limited to “only changes to the official posted prices of each product.” Id. However, the Court remanded the matter to the Commission so that it could articulate an intelligible standard to determine when mail preparation requirement changes constitute changes in rates subject to the price cap. Id. at 744.

In response to the Court's remand, the Commission issued Order No. 3047, which set forth a standard to determine when mail preparation changes require compliance with the Commission's price cap rules.2 Under § 3010.23(d)(2), the Postal Service must make reasonable adjustments to its billing determinants to account for the effects of classification changes that result in the introduction, deletion, or redefinition of rate cells. The standard established by the Commission in Order No. 3047 provided that mail preparation changes could have rate effects when they resulted in the deletion or redefinition of rate cells as set forth by § 3010.23(d)(2). Order No. 3047 at 59. In conjunction with Order No. 3047, the Commission initiated a separate rulemaking proceeding in this docket to develop a procedural rule that would ensure the Postal Service properly accounted for the rate effects of mail preparation changes “in accordance with the Commission's standard articulated in Order No. 3047.” 3

While the rulemaking was pending, the Postal Service requested the Commission reconsider the standard set forth in Order No. 3047. In response, the Commission issued Order No. 3441 resolving the request for reconsideration and maintaining the standard articulated in Order No. 3047.4 The Postal Service petitioned the Court for review of the revised standard set forth in Order Nos. 3047 and 3441.5

During the pendency of the appellate proceedings, the Commission issued Order No. 4393 in this docket, adopting a final procedural rule concerning mail preparation changes.6 The final rule institutes publication requirements for changes to mail preparation rules and requires the Postal Service to (1) affirmatively designate whether or not a change to a mail preparation requirement implicates the price cap; and (2) show by a preponderance of the evidence, if the designation is challenged, that the price cap does not apply to the change. The Postal Service also petitioned the Court for review of this final rule.7

Shortly after the Commission adopted the final rule in this docket, the Court issued its decision in United States Postal Serv. v. Postal Reg. Comm'n, 886 F.3d 1253 (D.C. Cir. 2018), vacating the Commission's standard in Order No. 3047. As a result of this decision, the Commission and the Postal Service filed a joint motion to remand the appeal of the final rule back to the Commission for further proceedings.8 The Commission institutes this NPR in response to the Court's order granting the motion for remand.9

As indicated in Order No. 4393, in addition to the reporting requirement, the procedural rule set forth requirements designed to ensure compliance with the price cap based on the Commission's standard articulated in Order No. 3047. Because the substantive standard established in Order No. 3047 was vacated by the Court, the Commission proposes to rescind part of the final rule that relies upon the standard. The Commission intends to develop an appropriate standard and propose other appropriate rules implementing that standard in due course.

The proposed rule revises § 3010.23(d)(5). As described above, § 3010.23(d)(5) institutes a reporting requirement whereby the Postal Service must provide published notice of all mail preparation changes in a single source. The Postal Service began complying with the reporting requirement on March 22, 2018.10 The rule also requires the Postal Service to (1) affirmatively designate whether or not an individual mail preparation change requires compliance with § 3010.23(d)(2) in accordance with the standard set forth in Order No. 3047; and (2) demonstrate by a preponderance of the evidence, in response to a challenge, that a mail preparation change does not require compliance with § 3010.23(d)(2). Both the designation and evidentiary burden parts of the rule require a substantive standard. Because that standard was vacated and a new standard has yet to be developed, the proposed rule revises paragraph (d)(5) and removes the affirmative designation requirement and evidentiary burden. The reporting requirement will remain in the rule and exists independent of any standard as it is necessary to provide standardized, transparent reporting of mail preparation changes.11

Although the Commission is instituting a new proceeding to seek comment on an appropriate standard to determine when mail preparation changes are “changes in rates” under 39 U.S.C. 3622, the absence of an immediate standard necessitates partial rescission of the rule.

Interested persons are invited to provide written comments concerning the proposed rule. As the Commission is instituting a separate proceeding for comments on a new standard, the comments should be limited to the revised procedural rule.

Comments are due no later than 30 days after the date of publication of this notice in the Federal Register. All comments and suggestions received will be available for review on the Commission's website, http://www.prc.gov.

It is ordered:

1. Interested persons may submit comments no later than 30 days from the date of the publication of this notice in the Federal Register.

2. Kenneth E. Richardson will continue to serve as an officer of the Commission (Public Representative) to represent the interests of the general public in this proceeding.

3. The Secretary shall arrange for publication of this order in the Federal Register.

For the reasons discussed in the preamble, the Commission proposes to amend chapter III of title 39 of the Code of Federal Regulations as follows:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This SUPPLEMENTARY INFORMATION section is arranged as follows:

EPA is proposing to approve the November 27, 2017 submittal as a revision to the Indiana SIP to include CSAPR 1 state trading programs for annual emissions of NOX and SO2 and ozone season emissions of NOX. Large EGUs in Indiana are subject to CSAPR FIPs that require the units to participate in the Federal CSAPR NOX Annual Trading Program, the Federal CSAPR SO2 Group 1 Trading Program, and the Federal CSAPR NOX Ozone Season Group 2 Trading Program. CSAPR also provides a process for the submission and approval of SIP revisions to replace the requirements of CSAPR FIPs with SIP requirements under which a state's units participate in CSAPR state trading programs that are integrated with and, with certain permissible exceptions, substantively identical to the CSAPR Federal trading programs.

The SIP revision proposed for approval would incorporate into Indiana's SIP state trading program regulations for annual NOX, annual SO2, and ozone season NOX emissions that would replace EPA's Federal trading program regulations for those emissions from Indiana units. EPA is proposing to approve the SIP revision because it meets the requirements of the CAA and EPA's regulations for approval of a CSAPR full SIP revision replacing a Federal trading program with a state trading program that is integrated with and substantively identical to the Federal trading program. Under the CSAPR regulations, approval of the SIP revision would automatically eliminate the obligations of large EGUs in Indiana to participate in CSAPR's Federal trading programs for annual NOX, annual SO2, and ozone season NOX emissions under the corresponding CSAPR FIPs. EPA proposes to find that approval of the SIP revision would fully satisfy Indiana's obligations pursuant to the “good neighbor” provisions of CAA section 110(a)(2)(D)(i)(I) to prohibit emissions which will significantly contribute to nonattainment or interfere with maintenance of the 1997 PM2.5 NAAQS, the 2006 PM2.5 NAAQS, and the 1997 ozone NAAQS in any other state and would partially satisfy Indiana's corresponding obligation with respect to the 2008 ozone NAAQS.2

EPA issued CSAPR in July 2011 to address the requirements of CAA section 110(a)(2)(D)(i)(I) concerning interstate transport of air pollution. As amended (including the 2016 CSAPR Update 3 ), CSAPR requires 27 Eastern states to limit their statewide emissions of SO2 and/or NOX in order to mitigate transported air pollution unlawfully impacting other states' ability to attain or maintain four NAAQS: The 1997 PM2.5 NAAQS, the 2006 PM2.5 NAAQS, the 1997 ozone NAAQS, and the 2008 ozone NAAQS. The CSAPR emissions limitations are defined in terms of maximum statewide “budgets” for emissions of annual SO2, annual NOX, and/or ozone season NOX by each covered state's large EGUs. The CSAPR state budgets are implemented in two phases of generally increasing stringency, with the Phase 1 budgets applying to emissions in 2015 and 2016 and the Phase 2 (and CSAPR Update) budgets applying to emissions in 2017 and later years. As a mechanism for achieving compliance with the emissions limitations, CSAPR establishes five Federal emissions trading programs: A program for annual NOX emissions, two geographically separate programs for annual SO2 emissions, and two geographically separate programs for ozone-season NOX emissions. CSAPR also establishes FIP requirements applicable to the large EGUs in each covered state.4 Currently, the CSAPR FIP provisions require each state's units to participate in up to three of the five CSAPR trading programs.

CSAPR includes provisions under which states may submit and EPA will approve SIP revisions to modify or replace the CSAPR FIP requirements while allowing states to continue to meet their transport-related obligations using either CSAPR's Federal emissions trading programs or state emissions trading programs integrated with the Federal programs, provided that the SIP revisions meet all relevant criteria.5 Through such a SIP revision, a state may replace EPA's default provisions for allocating emission allowances among the state's units, employing any state-selected methodology to allocate or auction the allowances, subject to timing conditions and limits on overall allowance quantities. In the case of CSAPR's Federal trading programs for ozone season NOX emissions (or an integrated state trading program), a state may also expand trading program applicability to include certain smaller EGUs.6 If a state wants to replace CSAPR FIP requirements with SIP requirements under which the state's units participate in a state trading program that is integrated with and identical to the Federal trading program even as to the allocation and applicability provisions, the state may submit a SIP revision for that purpose as well. However, no emissions budget increases or other substantive changes to the trading program provisions are allowed. A state whose units are subject to multiple CSAPR FIPs and Federal trading programs may submit SIP revisions to modify or replace either some or all of those FIP requirements.

States can submit two basic forms of CSAPR-related SIP revisions effective for emissions control periods in 2017 or later years.7 Specific conditions for approval of each form of SIP revision are set forth in the CSAPR regulations, as described in section III below. Under the first alternative—an “abbreviated” SIP revision—a state may submit a SIP revision that upon approval replaces the default allowance allocation and/or applicability provisions of a CSAPR Federal trading program for the state.8 Approval of an abbreviated SIP revision leaves the corresponding CSAPR FIP and all other provisions of the relevant Federal trading program in place for the state's units.

Under the second alternative—a “full” SIP revision—a state may submit a SIP revision that upon approval replaces a CSAPR Federal trading program for the state with a state trading program integrated with the Federal trading program, so long as the state trading program is substantively identical to the Federal trading program or does not substantively differ from the Federal trading program except as discussed above with regard to the allowance allocation and/or applicability provisions.9 For purposes of a full SIP revision, a state may either adopt state rules with complete trading program language, incorporate the Federal trading program language into its state rules by reference (with appropriate conforming changes), or employ a combination of these approaches.

The CSAPR regulations identify several important consequences and limitations associated with approval of a full SIP revision. First, upon EPA's approval of a full SIP revision as correcting the deficiency in the state's implementation plan that was the basis for a particular set of CSAPR FIP requirements, the obligation to participate in the corresponding CSAPR Federal trading program is automatically eliminated for units subject to the state's jurisdiction without the need for a separate EPA withdrawal action, so long as EPA's approval of the SIP is full and unconditional.10 Second, approval of a full SIP revision does not terminate the obligation to participate in the corresponding CSAPR Federal trading program for any units located in any Indian country within the borders of the state, and if and when a unit is located in Indian country within a state's borders, EPA may modify the SIP approval to exclude from the SIP, and include in the surviving CSAPR FIP instead, certain trading program provisions that apply jointly to units in the state and to units in Indian country within the state's borders.11 Finally, if at the time a full SIP revision is approved EPA has already started recording allocations of allowances for a given control period to a state's units, the Federal trading program provisions authorizing EPA to complete the process of allocating and recording allowances for that control period to those units will continue to apply, unless EPA's approval of the SIP revision provides otherwise.12

Each CSAPR-related abbreviated or full SIP revision must meet the following general submittal conditions:

• Timeliness and completeness of SIP submittal. The SIP submittal completeness criteria in section 2.1 of appendix V to 40 CFR part 51 apply. In addition, if a state wants to replace the default allowance allocation or applicability provisions of a CSAPR Federal trading program, the complete SIP revision must be submitted to EPA by December 1 of the year before the deadlines described below for submitting allocation or auction amounts to EPA for the first control period for which the state wants to replace the default allocation and/or applicability provisions.13 This SIP submission deadline is inoperative in the case of a SIP revision that seeks only to replace a CSAPR FIP and Federal trading program with a SIP and a substantively identical state trading program integrated with the Federal trading program.

In addition to the general submittal conditions, a CSAPR-related abbreviated or full SIP seeking to address the allocation or auction of emission allowances must meet the following further conditions:

• Methodology covering all allowances potentially requiring allocation. For each Federal trading program addressed by a SIP revision, the SIP revision's allowance allocation or auction methodology must replace both the Federal program's default allocations to existing units 14 at 40 CFR 97.411(a), 97.511(a), 97.611(a), 97.711(a), or 97.811(a) as applicable, and the Federal trading program's provisions for allocating allowances from the new unit set-aside (NUSA) for the state at 40 CFR 97.411(b)(1) and 97.412(a), 97.511(b)(1) and 97.512(a), 97.611(b)(1) and 97.612(a), 97.711(b)(1) and 97.712(a), or 97.811(b)(1) and 97.812(a), as applicable.15 In the case of a state with Indian country within its borders, while the SIP revision may neither alter nor assume the Federal program's provisions for administering the Indian country NUSA for the state, the SIP revision must include procedures addressing the disposition of any otherwise unallocated allowances from an Indian country NUSA that may be made available for allocation by the state after EPA has carried out the Indian country NUSA allocation procedures.16

• Assurance that total allocations will not exceed the state budget. For each Federal trading program addressed by a SIP revision, the total amount of allowances auctioned or allocated for each control period under the SIP revision (prior to the addition by EPA of any unallocated allowances from any Indian country NUSA for the state) generally may not exceed the state's emissions budget for the control period less the sum of the amount of any Indian country NUSA for the state for the control period and any allowances already allocated to the state's units for the control period and recorded by EPA.17 Under its SIP revision, a state is free to not allocate allowances to some or all potentially affected units, to allocate or auction allowances to entities other than potentially affected units, or to allocate or auction fewer than the maximum permissible quantity of allowances and retire the remainder. Under the CSAPR NOX Ozone Season Group 2 Trading Program only, additional allowances may be allocated if the state elects to expand applicability to non-EGUs that would have been subject to the NOX Budget Trading Program established for compliance with the NOX SIP Call.18

• Timely submission of state-determined allocations to EPA. The SIP revision must require the state to submit to EPA the amounts of any allowances allocated or auctioned to each unit for each control period (other than allowances initially set aside in the state's allocation or auction process and later allocated or auctioned to such units from the set-aside amount) by the following deadlines.19 Note that the submission deadlines differ for amounts allocated or auctioned to units considered existing units for CSAPR purposes and amounts allocated or auctioned to other units.

• No changes to allocations already submitted to EPA or recorded. The SIP revision must not provide for any change to the amounts of allowances allocated or auctioned to any unit after those amounts are submitted to EPA or any change to any allowance allocation determined and recorded by EPA under the Federal trading program regulations.20

• No other substantive changes to Federal trading program provisions. The SIP revision may not substantively change any other trading program provisions, except in the case of a SIP revision that also expands program applicability as described below.21 Any new definitions adopted in the SIP revision (in addition to the Federal trading program's definitions) may apply only for purposes of the SIP revision's allocation or auction provisions.22

St. Paul Island and St. George Island are remote islands located in the Bering Sea populated by Alaska Native residents who rely upon marine mammals as a major food source and cornerstone of their culture. The taking of North Pacific fur seals (northern fur seals) is prohibited by the FSA unless expressly authorized by the Secretary of Commerce through regulation. Pursuant to the FSA (16 U.S.C. 1151-1175), it is unlawful, except as provided in the chapter or by regulation of the Secretary of Commerce, for any person or vessel subject to the jurisdiction of the United States to engage in the taking of fur seals in the North Pacific Ocean or on lands or waters under the jurisdiction of the United States. (16 U.S.C. 1152). Section 105(a) of the FSA authorizes the promulgation of regulations with respect to the taking of fur seals on the Pribilof Islands as the Secretary of Commerce deems necessary and appropriate for the conservation, management, and protection of the fur seal population (16 U.S.C. 1155(a)). Regulations issued under the authority of the Fur Seal Act authorize Pribilovians to take fur seals on the Pribilof Islands if such taking is for subsistence uses and not accomplished in a wasteful manner (50 CFR 216.71).

The residents of St. Paul are currently authorized by regulations under the FSA Section 105 (16 U.S.C. 1155) to harvest male fur seals 124.5 cm or less in length for subsistence uses each year from June 23 until August 8 using traditional methods (50 CFR 216.72(e)). The residents of St. George are currently authorized to harvest male fur seals 124.5 cm or less in length for subsistence use each year from June 23 to August 8. The residents of St. George are also authorized to harvest male young of the year each year from September 16 through November 30 (50 CFR 216.72(d)).

For both Islands, the number of fur seals authorized to be harvested annually is currently established every three years, in accordance with 50 CFR 216.72(b), based on an estimate of the number of fur seals expected to satisfy the Pribilovians' subsistence requirements (e.g., 82 FR 39044, August 17, 2017). Prior to 1985, the subsistence needs of the Pribilovians were met by utilization of the meat from the carcasses remaining after the commercial harvest for skins, which occurred from 1911 to 1984 (Veltre and Veltre 1987). After the end of the commercial harvest, the Pribilovians were prohibited from taking northern fur seals for subsistence uses in the absence of regulation promulgated under Section 105(a) of the FSA. NMFS promulgated the emergency interim rule for subsistence use of northern fur seals by Pribilovians in 1985 (50 FR 27914, July 8, 1985) and the emergency final rule for subsistence use of northern fur seals by Pribilovians in 1986 (51 FR 24828, July 9, 1986). The history of subsequent regulatory revisions can be found in the DSEIS for the management of the subsistence harvest of northern fur seals on St. Paul Island, Alaska, and in the 2014 SEIS for management of subsistence harvest of northern fur seals on St. George Island, Alaska (see ADDRESSES).

Northern fur seals were killed for their skins for at least 200 years on the Pribilof Islands (Scheffer et al., 1984, and NMFS 2007). Northern fur seal population trends are most closely related to the number of females because a single territorial adult male inseminates multiple reproductive females. Thus, the number of males in the population is much less important to the stability of the population. This understanding of population dynamics provided the basis for the commercial harvest levels established under the FSA (Scheffer et al., 1984). Gentry (1998) and NMFS (2007) summarized the extensive research on the direct and indirect effects of the commercial harvest on fur seal behavior and the population. NMFS has examined the abundance and trend of the population compared to the number of sub-adult male fur seals killed or harassed during the historical commercial harvest and later subsistence harvests. The harvest management and intensity of harvest changed drastically during the transition to subsistence use on St. George. Seals were harvested commercially five days a week during the month of July from all haulout areas through 1972, all harvests were prohibited from 1973-1975, and then, beginning in 1976, no more than four subsistence harvests were allowed per week from one or two haulout areas for a total of less than 300 sub-adult males harvested per year. The subsistence harvest beginning in 1976 took less than three percent of the average commercial harvest and did not change the population trend on St. George Island, indicating that the take of sub-adult males did not measurably affect the production of pups, distribution of seals, or other indices of the population (Gentry 1998).

Likewise, the transition from the commercial harvest to the subsistence harvest on St. Paul Island after 1984 indicated the subsistence harvests of sub-adult male fur seals did not adversely impact the production of pups, distribution of seals, or other indices of the population. The average number of sub-adult males killed annually in the subsistence harvest on St. Paul Island (an average of 924 fur seals annually over the period of 1985 to 2016) is less than 4 percent of the average number of males killed annually during the commercial harvest (25,176 fur seals from 1975 to 1984). The abrupt reduction from commercial harvest levels to subsistence harvest levels did not result in a corresponding change in the estimates of the number of pups born on St. Paul Island.

If the harvest of sub-adult males had an adverse effect on the fur seal population, NMFS would have expected to observe a change in estimated production of pups on St. Paul following the end of the commercial harvest in 1984. NMFS did not observe a statistically significant change in the estimate of pup production until after 1994. Thus, for both St. Paul and St. George Islands, when the harvest of sub-adult males was reduced by over 90 percent, there was no change in the trend of number of pups born, regardless of whether the underlying population trend was declining (as on St. George Island) or stable (as on St. Paul Island). Therefore, NMFS concluded in the 2014 St. George SEIS and the 2017 St. Paul DSEIS that subsistence harvest mortality of sub-adult male fur seals has not contributed to a detectable change in the population trends since the implementation of the subsistence use regulations. NMFS also assumes that some level of harassment occurs during the subsistence take of fur seals. NMFS analyzed the impact of harassment on non-harvested seals and concluded in the 2014 St. George SEIS and the 2017 St. Paul DSEIS that harassment associated with subsistence take would have minor short-term energetic effects on those seals.

Further, NMFS (2014, 2017), Fowler et al. (2009), and Towell and Williams (2014, unpublished) analyzed the direct mortality and harassment associated with authorizing the Pribilovians to take male pups for subsistence uses. Based on our understanding of fur seal ecology and modeling the response of the population to subsistence mortality of pups, these analyses conclude that the mortality of male pups results in fewer population consequences than a similar harvest of males older than two years because pups have a high level of natural mortality after weaning. NMFS therefore does not expect a detectable change in population trends from future subsistence harvests authorized under this proposed rule of up to 500 sub-adult male fur seals 124.5 cm or less in length (i.e., sub-adult) on St. George (of which up to 3 may be female fur seals and of which up to 150 may be male pups authorized for harvest in 50 CFR 216.72(d)(6)-(d)(10)), which would continue the currently authorized methods and level of subsistence use. NMFS also does not expect a detectable change in population trends from future subsistence use authorized under this proposed rule of up to 2,000 juvenile fur seals on St. Paul (of which any number may be pups, but of the 2,000 authorized for subsistence use only up to 20 may be female fur seals), which would continue the currently authorized level of subsistence use and modify methods and seasons, as explained further below.

For St. George Island, NMFS will continue to use the term “sub-adult” to refer to those fur seals authorized for subsistence use in the sub-adult season (50 CFR 216.72(d)(1) through (5)) and will continue to use the term “young of the year” to refer to those fur seals authorized for subsistence use in the male young of the year season (50 CFR 216.72(d)(6) through (10)). For St. Paul, NMFS proposes to authorize in 50 CFR 216.72(e) take by hunt and harvest of juvenile male fur seals, and NMFS proposes to define juvenile as non-breeding male fur seals less than seven years old (i.e., including pups).

The process to change subsistence use management of northern fur seals on St. Paul Island began on February 16, 2007, with the receipt of tribal resolution 2007-09 from ACSPI. In that resolution, ACSPI requested NMFS immediately start the process to impose a moratorium on the regulations at 50 CFR 216, Subpart F or revise the regulations. On May 7, 2007, NMFS determined that an immediate moratorium was not warranted and that the co-management process described in the agreement between NMFS and ACSPI was the best means to determine what regulatory changes were needed to allow the community to meet its subsistence needs while continuing to promote the conservation of northern fur seals on St. Paul Island consistent with the MMPA and FSA.

On October 21, 2009, ACSPI submitted resolution 2009-57 with supporting information to NMFS as a basis to modify the regulations governing the subsistence use of northern fur seals on St. Paul Island. NMFS evaluated the resolution and worked with ACSPI over the next two years to clarify details of the request and supporting documents. Based on those clarifications, NMFS determined that there was adequate information to publish a notice of receipt of petition for rulemaking and opportunity for public comment under the Administrative Procedure Act (77 FR 41168; July 12, 2012). ACSPI subsequently approved resolution 2015-04, amending resolution 2009-57 to assist NMFS to respond to comments received on the petition. NMFS then published a Notice of Intent to prepare an SEIS to evaluate alternatives to managing the subsistence use of northern fur seals on St. Paul Island (80 FR 44057; July 24, 2015), and completed the DSEIS for public comment (82 FR 4336; January 13, 2017).

The DSEIS (NMFS 2017) analyzes the effects of the status quo, the petitioned alternative, and alternative subsistence use management regimes, and concludes that the subsistence use of up to 2,000 juvenile northern fur seals, of which up to 20 may be females killed during the subsistence use seasons, would have a minor effect on the population of about 483,086 fur seals residing seasonally on St. Paul Island and on the northern fur seal stock of about 620,660 animals total (Muto et al., 2018). ACSPI petitioned NMFS to define the seals that may be taken for subsistence uses as “juvenile” male fur seals. A “juvenile” would be defined as seals less than 7 years old inclusive of pups. This proposed rule would not designate pups as a separate sub-category of juveniles because that distinction is unnecessary from a conservation perspective (per the analysis in NMFS 2017) and ACSPI seeks flexibility to harvest any male seals less than 7 years old. ACSPI also petitioned NMFS to remove a restriction on the length of seal that may be taken for subsistence use. The current regulations for St. Paul Island identify seals that may be taken for subsistence use as males 124.5 cm or less in length, and prohibit the subsistence use of pups. This length of male seal (124.5 cm or less) corresponds to an age range of two to four years old, and is called a “sub-adult” male in reference to those seals taken typically in the past commercial and subsistence harvests.

ACSPI petitioned NMFS to revise the subsistence use regulations, suggesting that four regulatory provisions were necessary to improve management of the subsistence use of northern fur seals on St. Paul Island: (1) Subsistence use of up to 2,000 juvenile male fur seals annually; (2) hunting of juvenile male fur seals from January 1 to May 31 annually using firearms; (3) harvesting of juvenile male fur seals from June 23 to December 31 annually without the use of firearms; and (4) co-management of subsistence use by ACSPI and NMFS under the co-management agreement. Subsequent discussions with ACSPI clarified that their request was to revise the co-management agreement signed in 2000 and to establish in a revised agreement a process to cooperatively manage and restrict subsistence use, such as location and frequency of harvesting and hunting, without additional regulatory provisions.

NMFS entered into a co-management agreement with the ACSPI in 2000 under Section 119 of the MMPA (16 U.S.C. 1388). The co-management agreement (available at https://alaskafisheries.noaa.gov/pr/fur-seal) established a Co-management Council with equal membership between NMFS and ACSPI to work cooperatively in the conservation and management of fur seals and Steller sea lions on St. Paul Island. The co-management agreement includes a guiding principle “that provides for full participation by the Unangan of St. Paul, through the ACSPI, in decisions affecting the management of marine mammals used for subsistence purposes,” including the management of subsistence use of northern fur seals. NMFS and ACSPI intend to revise and align the co-management agreement with the proposed rule. Specifically, the Co-management Council will use an adaptive management framework to make non-regulatory in-season adjustments to the locations, timing, and methods of subsistence use, within the regulatory parameters allowed by this proposed rule. The Co-management Council will use environmental, community, and subsistence use data and information to make in-season decisions regarding how the harvest is prosecuted, ensuring adherence to the regulatory limit on the subsistence use of up to 2,000 juvenile fur seals, of which up to 20 may be female fur seals killed during the subsistence use seasons.

In 2006, the Traditional Council of St. George Island, Tribal Government (Traditional Council) petitioned NMFS to change the subsistence use management of northern fur seals on St. George. NMFS worked with the Traditional Council to clarify the petitioned changes and authorize the annual harvest of up to 150 male pups during a second season from September 16 to November 30 within the limits already established every three years under 50 CFR 216.72(b). The action included changes to the authorized subsistence use locations on St. George applicable to both pup and sub-adult harvests, as well as other regulatory provisions for conservation of fur seals.

In 2014, NMFS finalized the rule that authorized on St. George the harvest of up to 150 male pups, allowed harvests of sub-adults and pups at all areas capable of sustaining a harvest, added a harvest suspension provision if two females were killed during the year, and specified termination of the subsistence use seasons for the remainder of the year if three females were killed (79 FR 65327, November 4, 2014). NMFS changed 50 CFR 216.74 to reflect that the Traditional Council and NMFS had developed a different subsistence management relationship under Section 119 of the MMPA. At that time, NMFS did not change the process used to establish the subsistence needs of the Pribilovians on St. George, so we continued to specify in the triennial notice in the Federal Register the lower and upper limit of the number of seals required to meet the subsistence needs on both Islands, per 50 CFR 216.72(b).

ACSPI petitioned the removal of 50 CFR 216.72(b), which is applicable to both Islands. In this proposed rulemaking, NMFS proposes to set in regulation the maximum number of seals that may be harvested on St. George Island (500), which is based on the upper limit established by NMFS (82 FR 39044, August 17, 2017) and agreed to by the Traditional Council since 1990. NMFS also proposes to remove duplicative or unnecessary regulations applicable to subsistence use on St. George based on the determination that the statutory take prohibition in the FSA does not also require regulatory prohibitions.

NMFS currently manages the northern fur seal population as two stocks in the U.S.: The Eastern Pacific and the San Miguel stocks. The Eastern Pacific stock includes northern fur seals breeding on St. Paul, St. George, and Bogoslof islands and Sea Lion Rock, AK. NMFS designated the Pribilof Islands northern fur seal population as depleted under the MMPA on May 18, 1988 (53 FR 17888). Loughlin et al. (1994) estimated approximately 1.3 million northern fur seals existed worldwide in 1992, and the Pribilof Islands (which later was designated the Eastern Pacific stock) accounted for about 982,000 seals (74 percent of the worldwide total). In 1995, NMFS included fur seals breeding on Bogoslof Island in the estimate of 1,019,192 northern fur seals for the Eastern Pacific stock (Small and DeMaster 1995). The population has decreased since then, and the 2017 estimate for the Eastern Pacific stock (including fur seals breeding on St. Paul, St. George, and Bogoslof islands and Sea Lion Rock) was 620,660 northern fur seals (Muto et al., 2018). The annual pup production trends for the breeding islands in the Eastern Pacific stock from 1998 to 2016 vary between Islands: Pup production is declining (−4.12 percent) for St. Paul, stable with no trend for St. George, and increasing (+10.1 percent) for Bogoslof (Muto et al., 2018). The causes of the different trends among breeding areas are unknown.

Northern fur seals seasonally occupy specific breeding and non-breeding sites. The age and breeding status of the seals are the main determinants of where they are found on land during the breeding and non-breeding season. Non-breeding males occupy resting sites commonly called “hauling grounds or haulout areas” during the breeding season and are excluded from the breeding sites (i.e., rookeries) by adult males. Adult males defend territories on these breeding sites where females return from their winter migration to give birth, nurse their young, rest, and breed. Pregnant adult females begin to arrive from their winter migration as early as mid-June. The majority of adult females arrive around the second week of July. Older females arrive before younger females, and pregnant females arrive before non-pregnant females. Adult females land on the rookeries (breeding sites) where adult males immediately herd and retain them in territories until they give birth within two days after their arrival on land. After they give birth and remain on land for about six days, they enter estrous and breed before departing on their first of many multi-day foraging trips to sea and return to nurse their pups (Gentry 1998).

Territorial breeding males arrive on island in May and remain on the rookeries until mid-August, when most pregnant females have arrived and have given birth. Territorial adult males depart the rookery in August and are replaced by non-territorial, non-breeding adult males of similar size on the rookeries. Adult females and the pups remain at the rookeries until December, but they occupy a larger area that includes the rookery and haulout areas after territorial males have left the Islands for their migration.

Beginning about September 1, non-breeding males of all sizes can be found inter-mixed with breeding aged females and nursing pups on both rookeries and haulout areas. Scientists consider the non-breeding season to last from September through December. Thus from September through December all fur seals generally occupy similar terrestrial habitat, and there is little if any predictable separation among males and females as is found earlier in the year.

Pups begin to occupy separate areas from non-pups in September, and make daily transits among these areas while spending progressively more time in the water prior to weaning (Baker and Donahue 2000). Pups wean themselves beginning in late October, by leaving their birth site and spending the next 20-24 months at sea. All pups have left the islands where they were born by early December, and breeding-age females leave their breeding islands a few days after pups have departed on their winter migration. NMFS estimates that less than 10 percent of pups born die before weaning (MML unpublished data). NMFS also estimates that 50 to 80 percent of pups die after weaning and before they are two years old, which is when they would first return to the islands (Lander 1981, MML unpublished data).

Most fur seals first return to the islands when they are two years old, intermittently occupying non-breeding terrestrial sites from July through December. Older, non-breeding male seals arrive at the beginning of the terrestrial season earlier than younger seals. Non-breeding male fur seals rest on shore for about seven to ten days followed by intermittent at-sea foraging trips ranging from eight to twenty-nine days (Sterling and Ream 2004). All non-breeding fur seals migrate from their land resting sites (including on the Pribilof Islands) to the North Pacific Ocean and Bering Sea, where the fur seals are located from about December to June, when fur seals begin their annual return migration to their breeding and non-breeding, resting terrestrial sites (including those on the Pribilof Islands).

Male fur seals are sexually mature and begin to show secondary sexual characteristics (e.g., growth of mane, prominent saggital crest, extreme growth of shoulders and neck) at about seven years old (Gentry 1998). Males are not physically capable of holding territories until they are eight years old, and most males that hold successful breeding territories are nine years old and hold breeding territories for about one season (Gentry 1998). About one-third of territorial males successfully breed, but about ten percent of the breeding males account for over 50 percent of all breeding each year (Gentry 1998). This information shows that very few adult males successfully defend and hold territories on land, even fewer breed, and fewer still account for most of the annual reproductive effort. In the following year, about 70 percent of those territorial adult males from the previous year will be replaced by new males and will not be the fathers of those pups who are born within the territories they hold.

Female fur seals can be distinguished from male fur seals based on size, canine tooth size, and whisker color. Male fur seals are larger at all ages, beginning at birth. Males grow faster and larger than females. As male and female fur seals age their whiskers change color from all black (pup) to mixed black and white (two to seven years old) to all-white (older than seven). This whisker color distinction is important because a four-year-old male is similar in size to a six-year-old or older female, but the female's whiskers will be all-white and the male's whiskers will be mixed black and white. The size difference between males and females from birth to two years old is difficult to visually distinguish from a distance. Upon close inspection, the lower canine teeth of females are relatively narrower than a male's lower canine teeth. There are also some differences in fur coloration, head shape, and behavior between two- to four-year old males and females, but these characteristics are highly variable and prone to misclassification when considered alone.

NMFS is proposing to remove duplicative and unnecessary regulatory restrictions, as detailed below. NMFS will continue to regulate the subsistence taking of fur seals on the Pribilof Islands by sex, age, and season, as contemplated in the emergency final rule that NMFS promulgated after the cessation of the commercial harvest of northern fur seals in 1984 (51 FR 24828, July 9, 1986). Subsistence use of northern fur seals on the Pribilof Islands will be subject to any changes proposed in this rule that become final.

Section 102 of the FSA broadly prohibits the “taking” of northern fur seals (16 U.S.C. 1152). The regulations governing subsistence harvest for St. Paul and St. George Islands include specific prohibitions on the take of certain age classes of fur seals and the intentional take of female fur seals (50 CFR 216.72(d)(5), (d)(9), (e)(4)). NMFS has determined that these specific regulatory provisions prohibiting take are duplicative of the more general statutory prohibition on “taking” in Section 102 of the FSA, and thus this proposed rule would remove these sections from 50 CFR 216.72:

(d)(5) Any taking of adult fur seals, or young of the year, or the intentional taking of sub-adult female fur seals is prohibited;

(d)(9) Any taking of sub-adult or adult fur seals, or the intentional harvest of young of the year female fur seals is prohibited; and

(e)(4) Any taking of adult fur seals or pups, or the intentional taking of sub-adult female fur seals is prohibited.

The removal of these duplicative regulatory restrictions will not result in any changes to subsistence use of northern fur seals on St. George Island or St. Paul Island.

NMFS has determined that the following provisions for St. Paul and St. George Islands are duplicative of the regulations (50 CFR 216.41) promulgated for permitting scientific research under the MMPA (16 U.S.C. 1361-1407) and authorizing stranding response under Section 403 of the MMPA (16 U.S.C. 1421b), and thus these sections are proposed to be removed from 50 CFR 216.72:

(d)(3) seals with tags and/or entangling debris may only be taken if so directed by NMFS scientists, and

(e)(6) seals with tags and/or entangling debris may only be taken if so directed by NMFS scientists.

When NMFS promulgated the above provisions in the subsistence harvest regulations, NMFS did not contemplate that the Pribilovians would apply for and obtain permits to conduct scientific research on fur seals or obtain authorization to respond to northern fur seals entangled in marine debris (51 FR 24828, 24836, 24838-39; July 9, 1986). Congress amended the MMPA to authorize the Marine Mammal Health and Stranding Program in 1992, and the regulatory process to obtain a scientific research permit was not completed until 1996 (61 FR 21926, May 10, 1996). NMFS therefore proposes to remove these provisions, relying instead on those regulatory processes established under the MMPA more recently to authorize taking associated with response to fur seals entangled in marine debris or previously tagged for scientific research. The removal of these duplicative regulatory restrictions will not result in any changes to the process to receive authorization for take associated with response to fur seals entangled in marine debris or previously tagged for scientific research.

NMFS proposes to specify in regulation the maximum number of fur seals that may be killed for subsistence uses annually on each Island. The proposed rule would specify in 50 CFR 216.72(e) that Pribilovians on St. Paul may take by hunt and harvest up to 2,000 juvenile (less than 7 years old, including pups) fur seals per year for subsistence uses over the course of the hunting and harvest seasons, including up to 20 female fur seals per year. The proposed rule would specify in 50 CFR 216.72(d) that Pribilovians on St. George may take by harvest for subsistence uses up to 500 fur seals per year over the course of the sub-adult male harvest and the young of the year harvest, including up to 3 female fur seals per year. The proposed maximum harvest of fur seals to be authorized is based on the currently established upper limit of the subsistence need for each Island (82 FR 39044, August 17, 2017), which has been unchanged since 1992 for St. Paul Island and since 1990 for St. George Island.

NMFS also proposes to cease using a lower limit of the subsistence need and to eliminate references to the lower limit of the harvest range for regulations governing harvest on St. George of sub-adult male fur seals (50 CFR 216.72(d)(1)) and male young of the year fur seals (50 CFR 216.72(d)(6)); to eliminate in its entirety the provision at 50 CFR 216.72(b), which applies to both Islands and which establishes a process to re-assess every three years the subsistence requirements of the Pribilovians residing on St. Paul and St. George Islands; and to remove the provisions at 50 CFR 216.72(f)(1)(iii) and 216.72(f)(3), which are associated with the suspension of subsistence use when the lower limit of the range of the subsistence need is reached. NMFS also proposes to remove the provision in 50 CFR 216.72(f)(1)(i) that allows for the suspension of subsistence harvest on St. Paul Island or St. George Island if NMFS determines that the subsistence needs of the Pribilovians on that Island have been satisfied, and to remove the provision in 50 CFR 216.72(g)(2) that requires the termination of the subsistence harvest if NMFS determines that the upper limit of the subsistence need has been reached or if NMFS determines that the subsistence needs of the Pribilovians on either Island have been satisfied. NMFS proposes to revise the subsistence use termination provisions at 50 CFR 216.72(g) to be consistent with the proposed seasons for St. Paul and the subsistence use limits for each Island.

NMFS has determined that the existing regulatory approach to establishing the subsistence need on St. Paul and St. George Islands is no longer necessary for the following reasons: (1) The estimates of yield of edible meat per fur seal, which were used to approximate the number of seals thought to fulfill subsistence needs, overstated the actual yield of meat, and are no longer germane factors when evaluating the subsistence needs of Pribilovians; (2) the use of the lower and upper limit of the subsistence requirement has not provided the expected flexibility to the Pribilovians to meet their annual subsistence needs and has proven to be an unnecessary restriction; (3) estimating the subsistence need based on nutritional, socio-economic, and cultural factors, as NMFS has done in more recent triennial estimates of subsistence need, results in a more realistic assessment of subsistence need than the exclusive use of nutritional factors as envisioned in the existing regulations; and (4) given the consistency of the determination of Pribilovians' subsistence needs for more than 25 years, codifying the maximum subsistence use levels in regulation would be much more efficient than continuing to revisit the subsistence need every three years. We explain each of these reasons below, which justify setting authorized take for subsistence use in regulation for each Island and which justify the additional regulatory provisions that NMFS proposes to modify or eliminate.

As explained in this subsection, estimates of yield of edible meat per fur seal and percent-use were the basis for determining the number of seals for annual subsistence needs and were the basis for determining whether the subsistence harvest was being accomplished in a wasteful manner. However, the estimates of yield of edible meat per fur seal and percent-use overstated the actual yield of meat due to bias and inaccurate assumptions and are subject to continuing bias that NMFS cannot correct. NMFS therefore will no longer analyze subsistence need solely based on estimates of yield of edible meat and percent-use, and ACSPI and NMFS will work within the Co-management Council to identify and address any instances of wasteful taking. In addition, we remind readers that when referencing past taking for subsistence uses, we use the term “sub-adult males” to refer to two- to four-year old fur seals which generally fit the size limit in the regulations of 124.5 cm or less in length and that, while pups are less than 124.5 cm in length, they were prohibited from subsistence use for St. George until 2014 and are currently prohibited from subsistence use for St. Paul (50 CFR 216.72(e)(4)).

In 1985 and 1986, when the subsistence harvest was first being authorized, NMFS did not have any reliable means to establish the number of seals required to meet the subsistence needs of either St. George Island or St. Paul Island. As described in the emergency final rule regarding the subsistence taking of North Pacific fur seals (51 FR 24828, July 9, 1986), the commercial harvest for fur seal skins prior to 1985 had created an excess of meat for the subsistence needs of both communities, and disrupted the subsistence use patterns when compared to other Alaska Native communities (Veltre and Veltre 1987). For subsistence needs, NMFS used estimates of the yield of meat from an “average” commercially harvested seal as the basis for the subsistence levels established in the early years of the subsistence harvest regulations. NMFS assumed that a sub-adult male seal yielded a certain amount of meat, which was then used to calculate how many seals were needed to satisfy the nutritional needs of Pribilovians each year. The original estimate of the yield of meat per seal was from congressional testimony in 1914 that a sub-adult male fur seal dresses to 25 pounds of meat (50 FR 27914, 27916; July 8, 1985) and the May 7, 1987 notice (52 FR 17307) from measurements of harvested seals in 1985 (28.5 lbs) and in 1986 (24.4 lbs).

Public comments received by NMFS in the late 1980s questioned the Pribilovians' harvest practices and estimates of their subsistence need, and included accusations of wasteful taking and criticisms of the Pribilovians' use of the “butterfly cut” of seals. At the same time, the Pribilovians expressed frustration regarding the intrusive nature of harvest sampling, characterization of their subsistence use based on “percent-use” of the carcass, and the process to establish their subsistence need (55 FR 30919, July 30 1990). On August 1, 1991, the Humane Society of the United States filed an unsuccessful petition for a temporary restraining order to suspend the subsistence harvest (56 FR 42032).

In an attempt to resolve the controversy, NMFS and the ACSPI measured the percent use of the “butterfly cut” and “whole cut” from northern fur seal carcasses in terms of the actual yield of meat in 1992. This unpublished study measured the mass of meat, bone, and blubber from all body parts of the carcasses of three sub-adult males. One seal was three years old, the other was two years old, and the third was of unknown age. The actual yield of edible meat ranged from 11.9 to 15.9 pounds for seals that weighed from 44.6 to 58.1 pounds (NMFS unpublished data). The estimated yield of meat from this work in 1992 shows that the 1985 and 1986 estimates of yield of meat over-estimated the actual yield of edible meat by 35 to 52 percent depending on the size of the seal.

Further evaluation of the data from 1985 through 1991 that were used to estimate the yield of meat indicate previous weights reported were actually estimates of the total mass of the butterfly cut or whole cut, which included bones, fat, and connective tissue. In addition, the measures of edible meat from 1985 and 1986 do not account for the subsistence use of blubber, tongues, or flippers, items that are consumed in varying amounts locally (Veltre and Veltre 1987), but were not considered consistently by NMFS in the estimates of percent-use or yield. In the 1985 and 1986 estimates, NMFS measured and reported the percentage use of the carcass as the product of the mass of meat and bone of cuts divided by the total mass of the carcass. NMFS's approach resulted in a mean of 29.1 percent-use for the butterfly cut and 53.3 percent-use for the whole cut, a difference of about 24.2 percent, which was perceived as an indication of waste when using the butterfly cut versus using the whole cut.

By using the data of the actual edible meat (excluding bone) from 1992, the percent-use of meat divided by the total carcass weight would have ranged from about 18 percent-use for the “butterfly cut” to 27 percent-use for the whole cut. The traditional butterfly cut resulted in only a 9 percent difference (or about one pound of meat based on the average total seal weight) in the actual edible portion of meat when compared to the whole cut, which indicated the distinction between cuts was not significant or necessarily representative of waste. These results indicate that the old percent-use method overstated the amount of edible meat per seal by an even greater amount than acknowledged by NMFS based on data from all years prior to 1992. These results also support the Pribilovians' position that their subsistence use was not wasteful contrary to accusations of wasteful take that were based on the percent-use method (57 FR 34081, August 3, 1992).

NMFS also made inaccurate assumptions in the beginning of the subsistence period about the age of seals likely to be harvested for subsistence needs, which further biases the estimates of the number of seals needed for subsistence. Hanson et al. (1994) showed that St. Paul subsistence sealers chose to harvest three- and four-year old seals that were statistically smaller than the average sized seal of the same age in the population, which indicates sealers were selecting the smallest seals of those available. The selection of smaller seals for subsistence uses further reduces NMFS's previous over-estimates of yield of meat derived from the commercial harvest. In addition, St. Paul and St. George residents have indicated they prefer a “two-year old” sized seal, an assertion that was confirmed using 1986 subsistence harvest data (Zimmerman and Melovidov 1987). Subsistence harvest monitoring data reported by Hanson et al., (1994) indicated a continued preference for two-year old seals. The results of Hanson et al. (1994) have been confirmed by recent analysis of the average age of subsistence harvested seals from 1986-2016 on St. Paul Island (2.6 years) compared to commercially harvested seals from 1956-1984 (3.3 years) (MML unpublished data). On St. George Island, the subsistence harvest has occurred for 10 years longer than on St. Paul, and the average age of sub-adult males in the commercial harvest was 3.4 years versus 2.5 years in the subsistence harvest (MML unpublished data).

The proportion of two-year-old seals in the subsistence harvest for both Islands combined is about 47 percent, whereas during the commercial harvest two-year old seals represented about 8 percent of the total harvest for both Islands (MML unpublished data). Similarly, the proportion of four-year-olds decreased from about 32 percent of the commercial harvest to about 4 percent of the subsistence harvest based on data from both Islands (MML unpublished data). Thus smaller, younger seals represent a larger proportion of those seals taken in the subsistence harvest than the commercial harvest. Younger, smaller seals provide a lower yield of meat than the older, larger seals harvested commercially, and represent another uncorrected bias in the previous estimates of yield per seal and in the process to estimate the number of seals necessary to meet the Pribilovians' subsistence need.

Even if NMFS were to correct for age-related bias and fix inaccurate assumptions in previous methodologies to calculate future estimates of yield of meat to estimate the number of seals for subsistence needs, such estimates would remain biased and inaccurate. Baker et al. (1994) reported that particular year classes showed statistically different rates of body mass increase in the first few years of life. For example, three year old male fur seals born in 1987 were significantly lighter than three year olds born in 1988 and 1989 (Baker et al. 1994). Caruso and Baker (1996) compared the weights of two-, three-, and four-year old males from the subsistence harvest and found that two- and three-year old males from 1992 were significantly heavier (1.4 kg heavier for a two-year old) than similar-aged seals harvested in 1991, 1993, or 1994. Thus, environmental conditions can influence the size and growth of young seals and bias estimates of the yield of meat per seal among year classes. NMFS currently does not have a means to correct estimates of growth or average size at age to account for environmental variation.

Based on this analysis of the yield of edible meat from the subsistence harvest and the lack of information to correct the biases identified in the estimates of percent-use and yield of meat, NMFS no longer sees value in characterizing the subsistence need based on percent-use or yield of edible meat. Instead, as explained later in this proposed rule, NMFS will consider a combination of nutritional, socio-economic, and cultural factors, as well as the consistency of prior determinations of subsistence needs over time, to estimate and set in regulation through this proposed rule the number of seals needed annually for subsistence purposes on St. Paul and St. George Islands. Furthermore, ACSPI has instituted a practice whereby the whole cut is removed from the killing field in all instances, and the butterfly cut is no longer used (62 FR 17775, April 11, 1997). With regard to concerns about the potential for wasteful harvest practices in the future, NMFS will work within the Co-management Councils for St. Paul and St. George to ensure accurate monitoring to detect and address whether subsistence use is being accomplished in a wasteful manner. In addition, this proposed action does not change the regulatory provision that the take of fur seals must be consistent with 50 CFR 216.71 (i.e., (a) for subsistence uses, and (b) not accomplished in a wasteful manner).

The existing regulations call for establishing the upper and lower limit (i.e., the range) of the subsistence need in order to provide flexibility to the Pribilovians while also limiting the harvest to the legitimate subsistence need within that range (51 FR 24828, July 9, 1986). The lower limit, if reached, results in a 48-hour temporary suspension, but the lower limit could be exceeded if NMFS is given written notice by the Pribilovians seeking additional seals for subsistence uses as described in 50 CFR 216.72(f)(3). As explained next, this regulatory approach has not provided flexibility in the timing of the harvest and the availability of harvesters to ensure that Pribilovians can fulfill their subsistence needs. In addition, this regulatory approach has proven burdensome for both Pribilobians and NMFS to administer and manage. NMFS therefore proposes to eliminate in its entirety the provision at 50 CFR 216.72(b), as well as related regulatory provisions regarding the lower and upper limits and the associated suspension and termination provisions.

Since 1985, NMFS has used numerous methods to establish the range, but has frequently received public comments indicating disagreements about the consistency of implementation (e.g., 55 FR 30919, July 30, 1990). The Pribilovians have requested additional seals above the lower limit twice each on St. Paul (in 1987 and 1991) and St. George (in 1991 and 1993). In 1990, NMFS reduced the subsistence needs of the Pribilovians to the lowest level during the subsistence period to range from 181 to 500 on St. George and 1,145 to 1,800 on St. Paul (55 FR 30919, July 30, 1990). In 1991, NMFS proposed the range of subsistence need at the 1990 levels (56 FR 19970, May 1, 1991). NMFS was unable to establish a method acceptable to all stakeholders to determine the Pribilovians' subsistence need, and in the final notice, NMFS used the 1990 range of the subsistence need for 1991 (56 FR 36735, August 1, 1991). The Tribal Governments from St. Paul and St. George requested additional seals above the lower end of their respective ranges in 1991. NMFS authorized the Pribilovians to continue harvesting up to 100 additional seals on St. George and 500 additional seals on St. Paul from July 31 until August 8, 1991 (56 FR 42032, August 26, 1991).

The Humane Society of the United States filed a motion for a Temporary Restraining Order on August 1, 1991, which challenged the August 1 final notice for subsistence use in 1991 (56 FR 36735). The order was denied on August 5, 1991: the court upheld NMFS's determination that the harvest was not being conducted in a wasteful manner and that the accusations of waste were overstated (Humane Soc'y of the United States v. Mosbacher, Civ. A. No. 91-1915, 1991 WL 166653 (D.D.C. Aug. 5, 1991); 56 FR 42032, August 26, 1991). NMFS held a workshop in November 1991 and determined the household survey conducted by the tribal councils would be the agreed-upon method to establish the subsistence need (57 FR 22450, May 28, 1992).

NMFS established the 1992 subsistence need based on household surveys by the Tribal Governments of St. Paul and St. George, but in addition requested that the Pribilovians substantiate any request to exceed the lower limit of the range (57 FR 34081, August 3, 1992). NMFS questioned the estimates of subsistence need from household surveys in 1992 and 1993, because the tribal government could not survey all households in advance of each harvest season. The Pribilovians extrapolated the subsistence need to account for the un-surveyed/non-responsive households, but a final method to account for these households could not be agreed upon.

The St. George Traditional Council indicated on February 10, 1993 that they would require 407 seals to meet their subsistence need (58 FR 32892, June 14 1993). NMFS concluded that since St. George harvested fewer seals (194) than the lower level of the estimated 1992 range of subsistence need (281) and the average harvest over the past 5 years was 187, that NMFS would not use the 1993 St. George subsistence needs request based on their household survey data and instead used the lower level of the range from 1992. The community of St. George harvested 298 seals by August 3, 1993 (17 seals greater than the lower level of the range), and the Traditional Council requested additional seals during the temporary harvest suspension (58 FR 58297, November 1, 1993). NMFS approved the harvest of 44 more seals by St. George (325 total seals) after requesting and receiving information to substantiate their request (58 FR 32892, June 14 1993). St. George harvested 319 seals by August 8, 1993.

In the 1993 household survey of subsistence needs on St. Paul, about one-third of the households responded to the tribal government's survey, resulting in an estimate of 842 seals needed to meet their stated subsistence need. NMFS did not extrapolate to account for non-responsive households on St. Paul and instead indicated that there had not been significant changes in demography or economics in 1993 compared to 1991 and 1992 to warrant such a dramatic reduction in need, and NMFS determined that the estimated subsistence need for St. Paul would remain 1,645 to 2,000 in 1993 (58 FR 32892, June 14, 1993). St. Paul harvested 1,518 seals in 1993.

In 1994, NMFS set the range based on household survey results from the tribal governments that indicated similar results from previous years and thus the range of the subsistence need was set at the same level as in 1993, but applied through 1996 (59 FR 35471, July 12, 1994). In December 1996, after NMFS requested the tribal governments indicate their subsistence needs for the 1997-1999 period, ACSPI indicated their subsistence need range could remain the same (1,645 to 2,000 seals), and the St. George Traditional Council requested the lower limit be increased from 281 to 300 seals and the upper limit be retained at 500 seals (62 FR 33374, June 19, 1997). The tribal governments from both Islands indicated to NMFS in 1999, 2002, 2005, 2008, 2011, 2014, and 2017 that the subsistence ranges should be maintained at these lower and upper limits to meet their subsistence needs (see https://alaskafisheries.noaa.gov/pr/fur-seal). After NMFS had signed cooperative agreements with the tribal governments on St. Paul and St. George Islands, the subsistence needs were discussed annually during co-management meetings and considered in a more collaborative and holistic process.

The lower limit and regulatory suspension process required under the existing regulations have proven to be barriers to harvesting within the range established as “meeting the subsistence need” at the peak of community participation and availability of preferred seals. If the lower limit of the subsistence need is reached, NMFS must suspend the harvest for up to 48 hours per 50 CFR 216.72(f)(1)(iii). Practically, this usually occurs in early August after most harvests have occurred and as the number of two-year-old males landing on the hauling grounds is rapidly increasing (Bigg 1986). Thus, the preferred age-class (two years old) is more easily available to subsistence users at this time, but very little time remains in August to harvest this preferred age-class and to meet the subsistence need of the Pribilovians.

Once the lower limit is reached, NMFS must determine whether the subsistence needs of the Pribilovians have been satisfied, and if not, must provide a revised estimate of the number of seals required to meet those subsistence needs (50 CFR 216.72(f)(3)). Thus, when the lower limit is reached, Pribilovians must collect information through surveying or querying the community and provide that information in writing to support that their subsistence need falls above the lower limit but below the upper limit of the range previously established as meeting their subsistence need (e.g., 56 FR 36736, August 1, 1991). In those years when the actual subsistence use reached the lower limit of the range of the subsistence need established previously in the Federal Register notice, it was in the Pribilovians' best interest to conduct an additional house-to-house survey to establish an interim limit less than the upper limit to substantiate their subsistence need (59 FR 35474, July 12, 1994).

After the Pribilovians submit information to NMFS, NMFS must then substantiate the request to exceed the lower limit by making the determination that the Pribilovians (1) have not yet satisfied their subsistence need, (2) have not conducted wasteful take, and (3) have identified the number of seals required to meet the additional need (56 FR 36736, August 1, 1991). Often this process was too cumbersome administratively, for both NMFS and the Pribilovians. The 48-hour suspension when the lower limit was reached would occur during the last few days of the season, requiring Pribilovians to document their needs above the lower limit and NMFS to determine those newly documented needs were justified before the end of the season. This caused administrative delays that left too few days for additional harvesting of seals, including the harvest of the preferred age of seal. Such a process does not create flexibility that would allow the Pribilovians to meet their subsistence needs when the lower limit is reached.

Finally, a fundamental problem with using the previous year's actual harvest or an average of prior harvests to establish the allowable future harvest is that it creates an incentive for users to harvest as much as allowed in order to maintain future food security, particularly because many factors can force Pribilovians to harvest fewer seals each year, regardless of their particular annual needs. Decreased harvest levels in a given year would effectively reduce the lower limit in subsequent years, while ignoring factors that affect harvest levels, including: Normal year-to-year variability in seal size; the Pribilovians' preference for smaller seals; the limited availability of two-year-old seals until late in the harvest season; the availability of wage earning jobs on both Islands that conflicts with the subsistence season; and the availability of experienced sealers (58 FR 32892, June 13, 1993). These factors may result in diminished allowable harvest over time that could amplify the perverse incentive to harvest more seals than necessary in a given year to preserve the allowable harvest level for future years.

To avoid these problems, NMFS proposes to stop publishing a range with a lower limit of subsistence need. Instead NMFS proposes to set a fixed harvest limit that accounts for expected and unexpected year-to-year variability in the availability of fur seals based on environmental factors and the availability of subsistence users to participate based on economic, social, and other factors. Because NMFS would cease using a range with a lower limit, NMFS proposes to eliminate references to the lower limit of the range in the regulations governing use on St. George of sub-adult male fur seals (50 CFR 216.72(d)(1)) and male young of the year fur seals (50 CFR 216.72(d)(6)). NMFS also proposes to remove the requirements in 50 CFR 216.72(f)(1)(iii) and (f)(3) for NMFS to determine whether the Pribilovians' subsistence needs have been satisfied because they will already be established in the regulations. The proposed regulatory changes will reduce the household survey burden for Pribilovians on both St. Paul and St. George Islands and will also remove the cumbersome administration of the harvest suspension provisions and determinations that apply when the lower limit of the range was reached. NMFS would still annually evaluate whether the subsistence uses are being accomplished in a wasteful manner (per 50 CFR 216.71(b)), and the proposed rule does not eliminate the existing regulatory provision that allows the suspension of the subsistence harvest if the harvest is being conducted in a wasteful manner (50 CFR 216.72(f)(1)(ii)).

NMFS has determined that to satisfy the Pribilovians' subsistence requirement for northern fur seals, estimates of subsistence need must reflect a combination of nutritional, socio-economic, and cultural needs (see Veltre and Veltre 1987). During the late 1980s, NMFS used simple nutritional factors to estimate the subsistence needs of the Pribilovians. As described previously, NMFS used historical information from the villages of St. Paul and St. George and from other Alaska Native communities to estimate a range of the amount of meat required as a product of the yield and number of seals killed. NMFS has continued to estimate annual subsistence harvest based on the nutritional needs of the Pribilovians, while recognizing that other factors should be considered.

After the petition for a temporary restraining order and a subsequent subsistence workshop in 1991, NMFS acknowledged that subsistence need includes cultural aspects of the use of fur seals by Alaska Natives, as well as providing a traditional food (57 FR 22450, May 28, 1992). Pribilovians have indicated most recently in their comments on the DSEIS that the overlap in the timing of the local halibut fishery and current 47-day fur seal harvest season forces families to choose between producing income in the halibut fishery and obtaining fur seals. In the late 1980s the Pribilovians did not have the resources (i.e., large enough boats or gear) or opportunity (i.e., fishing was managed as limited entry until the passage of the Fisheries Conservation and Management Act in 1976) to participate in local commercial halibut fisheries, so they fished for subsistence when practical. In the late 1980s through 1992 there were on average 16 fur seal harvests on St. Paul Island per year, which has gradually diminished such that from 2002 to the present the Pribilovians averaged eight harvests per year. In 1995, Pribilovians were authorized to commercially fish for halibut through individual fishing quotas and later community development quotas. Thus, fur seal harvests changed from commercial to subsistence activities, and halibut fishing changed from subsistence to commercial economic enterprises. Because the subsistence season for fur seals overlaps with the commercial halibut season, many Pribilovians have no choice but to limit the time they spend obtaining fur seals for subsistence uses while they pursue cash-paying jobs in the halibut fishery. Other regulatory limits that prescribe who may harvest, where, and how further undermine the opportunities for Pribilovians to engage in the subsistence harvest of fur seals. As their sealing opportunities have diminished under the current regulations, Pribilovians have lost opportunities to share with elders and the community at large, teach harvesting and hunting skills to the next generation, collect seal parts for the creation of authentic Native handicrafts, and participate in cultural ceremonial events. As these ties to their culture have waned, it becomes more difficult to foster cultural traditions and instill the associated values within the community. The proposed creation of two seasons and multiple methods to take fur seals recognizes the important cultural values of the hunting and harvesting of fur seals, and will provide Pribilovians more flexibility to foster their own cultural traditions and values.

The Pribilof Islands are considered a hybrid economy (Huskey 2004) where subsistence use, market forces, and government transfers contribute to a village's ability to maintain a self-sufficient economy. Members of the public who live in rural areas like the Pribilof Islands value (nutritionally and socio-economically) wild and store bought foods differently than residents from urban areas. NMFS (2017) has evaluated how the concept of food security provides a more balanced approach to estimating the subsistence need in coastal communities such as St. Paul and St. George. From the aspect of nutrition and food security, fur seals represent an available, accessible, fresh, and safe source of traditional food for Pribilovians. Subsistence opportunities connect community members and relatives through food sharing and cooperative hunting and harvesting efforts. Opportunities for subsistence use of fur seals preserve the Pribilovians' traditional skills, cultural values, and knowledge, and enable the passing of cultural values on to younger subsistence users. Thus, unnecessarily restricting the opportunities for subsistence communities to obtain wild resources, such as fur seals, would not only result in the deterioration of nutrition, public health, and social stability, but also a critical component of their unique local culture. This combination of traditional and modern lifestyles helps to sustain the Pribilof cultural identity and provides a measure of economic and food security by providing an alternative to obtain food in newly emerging cash- and wage-based economic systems (Huskey 2004). The proposed approach to addressing the subsistence needs of Pribilovians is more environmentally, socially, and economically sustainable, and safeguards food security, cultural traditions, and economic surety by allowing the Pribilovians a greater role in the in-season monitoring and management (see following Co-management discussion). This approach to establishing the subsistence need improves upon the one previously used by NMFS that relied exclusively on the nutritional aspects.

Based on the cultural values of subsistence use and the need for food security for the Pribilovians, NMFS proposes to codify a regulatory threshold of 2,000 fur seals less than 7 years old, of which up to 20 may be females killed during the subsistence use seasons annually, for St. Paul. Similarly for St. George, the regulatory threshold will be 500 male fur seals during the subsistence use seasons annually, of which up to 3 may be females killed, and which also would include in each year up to 150 male pups (see 50 CFR 216.72(d)(6)-(d)(10)). This approach maintains the maximum harvest level that has been authorized every year since 1992 for St. Paul and since 1990 for St. George (82 FR 39044, August 17, 2017), and maintains the allowable pup harvest for St. George (79 FR 65327, November 4, 2014), but better reflects a holistic consideration of nutritional, socio-economic, and cultural factors of subsistence use. In addition, this approach will streamline the administration of the harvest, reduce the household survey burden on St. Paul and St. George, and provide a sustainable maximum harvest level that accounts for the prevailing socio-economic conditions and abundance of the fur seal population on the Pribilof Islands. As addressed earlier in the BACKGROUND section, NMFS does not expect a detectable change in population trends from take associated with future subsistence use of hunting or harvesting up to the annual regulatory thresholds for each Island.

The actual number of seals killed for subsistence uses in a given year can be dependent upon the seasonal availability of fur seals and other food resources, as well as average body mass of harvested seals, environmental variability, and the availability of harvesters. If socio-economic conditions or the fur seal population status change, NMFS can evaluate whether a change in the regulatory limits of the subsistence use is warranted.

The Pribilovians have stated in their past public comments that their harvest was not wasteful. They have also indicated that efforts to institute intrusive sampling during early years of the subsistence harvest, perceived micro-managing of the harvest method, and inconsistent application of methods to determine the subsistence need ultimately resulted in reduced estimates of their subsistence need over time, even though biologically the harvest of males would be sustainable at levels higher than proposed in this rule (52 FR 26479, July 15, 1987; 56 FR 36739, August 1, 1991; 77 FR 41168, July 12, 2012; 75 FR 21243, April 23, 2010). To respond to concerns of perceived micro-managing and alleged inconsistent methodologies to determine subsistence need, NMFS proposes to simplify and streamline the existing regulatory approach by establishing in regulation the subsistence need for both St. Paul and St. George Island, by removing an annual harvest suspension determination that was based on whether subsistence need that year was satisfied, and by revising harvest termination provisions to be consistent with proposed changes to seasons and subsistence use limits.

Codification in regulation of the maximum level of subsistence use is based in part on the consistency of the prior determinations of subsistence needs over time, as well as on the consideration of other nutritional, socio-economic, and cultural factors (addressed above). Under 50 CFR 216.72(b), every three years NMFS must publish in the Federal Register a summary of the Pribilovians' fur seal harvest for the previous three-year period and an estimate of the number of fur seals expected to satisfy the subsistence requirements of Pribilovians in the subsequent three-year period. Through that process, NMFS has set the maximum allowable harvest at 500 seals per year for St. George Island every year since 1990 and 2,000 seals per year for St. Paul Island every year since 1992. NMFS has set the annual maximum allowable use of fur seals for subsistence uses based on NMFS's consistent determination of the number of seals that would satisfy the subsistence requirements for each Island. Given the consistent determination on the upper limit of subsistence needs for the two communities and the sustainable nature of that level of harvest (NMFS 2014, NMFS 2017), codifying the allowable harvest levels in regulation would be more efficient than continuing to revisit the subsistence need every three years. If NMFS finalizes this new and more streamlined approach to the regulations and circumstances later change, NMFS can initiate rulemaking to revisit the allowable harvest levels under the authority of the FSA. Under the Co-management Agreements, the ACSPI and NMFS will continue to cooperatively manage subsistence use on St. Paul Island, and the St. George Traditional Council and NMFS will continue to cooperatively manage subsistence use on St. George Island.

In addition, NMFS proposes to remove the provision at 50 CFR 216.72(f)(1)(i), which allows for the suspension of subsistence harvest on St. Paul Island or St. George Island if NMFS determines that the subsistence needs of the Pribilovians on that Island have been satisfied. Under this proposed rule, NMFS would set in regulation the annual subsistence needs of each Island, which will reflect and respect the many factors that influence subsistence need on each Island. Based on the proposed codification in regulation of annual subsistence need, the regulatory provisions that currently require NMFS to determine if subsistence needs are satisfied, suspend the harvest, and notify the Pribilovians of this suspension would be unnecessary and irrelevant, and removal of this provision (50 CFR 216.72(f)(1)(i)) will further simplify and streamline the regulations.

Finally, NMFS proposes to revise the subsistence use termination provisions at 50 CFR 216.72(g) to be consistent with the new seasons for St. Paul and the subsistence use limits for each Island. Currently, 50 CFR 216.72(g)(1) terminates the harvest seasons for St. Paul and St. George Islands on August 8 and for the St. George male young of the year harvest season on November 30 and requires NMFS to determine whether the annual subsistence needs on both Islands have been satisfied. Currently, 50 CFR 216.72(g)(2) requires the termination of the subsistence seasons on either Island if NMFS determines that the upper limit of the subsistence need has been reached or if NMFS determines that the subsistence needs of the Pribilovians on that Island have been satisfied.

Under this proposed rule, 50 CFR 216.72(g)(1) would be revised to apply only to St. Paul Island and: (i) For the hunting of juvenile male fur seals with firearms, would terminate the season at the end of the day on May 31 or when 2,000 fur seals have been killed during the year, whichever comes first; (ii) for the harvest of juvenile male fur seals without firearms, would terminate the season at the end of the day on December 31 or when 2,000 fur seals have been killed during the year, whichever comes first; or (iii) would terminate the subsistence use seasons when 20 female fur seals have been killed during the year.

In addition, 50 CFR 216.72(g)(2) would be revised to apply only to St. George Island and: (i) For the sub-adult male harvest, would terminate the season at the end of the day on August 8 or when 500 sub-adult male seals have been harvested during the year, whichever comes first; (ii) for the male young of the year harvest, would terminate the harvest at the end of the day on November 30 or earlier if the first of either the following occurs: 150 Male young of the year fur seals have been harvested or a total of 500 sub-adult male fur seals and male young of the year fur seals have been harvested during the year; or (iii) would terminate the subsistence harvest seasons when 3 female fur seals have been killed during the year.

The Assistant Administrator would no longer need to make an annual determination of whether the subsistence needs of the Pribilovians have been satisfied, because the proposed rule would establish annual limits for St. Paul Island and St. George Island, including the limit on the number of female fur seals that may be killed during the year for St. Paul and St. George Islands, and would set two seasons for St. Paul Island, as discussed next.

NMFS established in the emergency final rule (51 FR 24828, July 9, 1986) that the original harvest season would occur from June 30 through August 8, with the opportunity to extend the harvest until September 30 if certain conditions were met. The ACSPI and Tanadgusix Corporation (the local Alaska Native Corporation created by Alaska Native Claims Settlement Act) requested a season from June 30 through September 30, in order to meet their subsistence need (51 FR 24828, July 9, 1986). NMFS removed the provisions to extend the subsistence harvest in 1992, citing the inability of Pribilovians to distinguish and avoid immature females during previous harvest extensions and authorized the season to start a week earlier on June 23 (57 FR 33900, July 31, 1992). The current subsistence regulations for St. Paul Island define a single season from June 23 through August 8 to harvest male fur seals 124.5 cm long or less (50 CFR 216.72(e)(2), (e)(5), (g)(1)).

During the 1980s and 1990s, NMFS and the Pribilovians were adjusting to the subsistence regulatory process and its implementation on both islands. NMFS and ACSPI signed the Co-management Agreement in 2000, which provided the opportunity to adaptively manage female mortality during subsistence activities. The St. Paul Co-management Agreement includes a female mortality threshold of five that, if reached, would result in temporary harvest suspension and a review of the circumstances of those mortalities. The St. Paul Co-management Agreement also includes a second threshold of eight female mortalities (i.e., three more than the temporary suspension), that, if reached, results in termination of the harvest for the season. The Pribilovians have not reached these thresholds during any harvest season on St. Paul since signing of the Co-management Agreement in 2000.

NMFS proposes to create two seasons on St. Paul for subsistence use of fur seals differentiated by the allowable methods that may be used during each season. The first season would authorize Pribilovians to kill juvenile fur seals (defined as less than 7 years old) using firearms to hunt from land on St. Paul Island from January 1 through May 31, hereafter referred to as the proposed “hunting season.” The second season would authorize the Pribilovians to kill juvenile fur seals without the use of firearms on St. Paul Island from June 23 through December 31, hereafter referred to as the proposed “harvest season.” It is not known whether pups would be available for subsistence uses during the hunting season, but the proposed rule would not preclude Pribilovians from taking pups during either of the two proposed seasons. The limited available evidence suggests that pups likely would not be available to hunters during the proposed hunting season.

NMFS proposes to remove the regulatory provision at 50 CFR 216.72(e)(5) that requires the taking of fur seals 124.5 cm or less in length, and NMFS instead proposes to allow take by hunting and harvesting of juvenile seals (defined as seals under 7 years old) through the regulatory changes that would provide that (1) juvenile fur seals may be killed with firearms from January 1 through May 31 annually; and (2) juvenile fur seals may be killed without the use of firearms from June 23 through December 31 annually. The proposed rule would authorize harvest during the associated season by traditional methods which involve herding and stunning followed immediately by exsanguination. The proposed rule would also authorize up to 20 female fur seals to be killed per year to account for incidental or accidental take of females. This amount of female mortality associated with the hunting and harvesting seasons is higher than allowed under the current Co-management Agreement, but at one percent of the proposed annual limit on subsistence use, it is a conservative limit that will incentivize avoiding incidental take of females and other causes of accidental mortality and will not have negative consequences at a population level (NMFS 2017).

NMFS also proposes to remove the regulatory provision at 50 CFR 216.72(e)(2) that no fur seal may be taken before June 23 and to revise the regulatory provision at 50 CFR 216.72(g)(1) that currently terminates the annual take on August 8 for sub-adult males on St. Paul. As explained earlier, this proposed rule would revise the suspension and termination provisions at 50 CFR 216.72(f) and (g) to be consistent with the new seasons and limits for St. Paul Island, which are discussed in detail further below. This revision would include a termination provision of subsistence hunting and harvest seasons for the remainder of the year if 20 female fur seals are killed at any point during the year.

Finally, the proposed rule would set the total number of seals authorized for subsistence use in both the hunting and harvest seasons, including female fur seals killed during those seasons, at 2,000 juvenile fur seals per year. As explained earlier and in the DSEIS (NMFS 2017), NMFS does not expect a detectable change in population trends from killing up to 2,000 juvenile fur seals on St. Paul during the hunting and harvest seasons annually in the future to be authorized under this proposed rule.

ACSPI petitioned NMFS to define the age class of male fur seals allowed for subsistence use as those less than seven years old (i.e., juveniles), rather than those 124.5 cm or less as currently described at 50 CFR 216.72(e)(5). In addition, the proposed rule includes pups in the definition of “juvenile” at ACSPI's request, and would remove the current prohibition at 50 CFR 216.72(e)(4). For the reasons detailed below, NMFS proposes to allow the subsistence use of juvenile fur seals less than seven years old, which reflects an age class distinction that the Pribilovians can use in the field to reliably determine eligibility for subsistence use before taking the animals, rather than a measure of length, which can only be verified after-the-fact. These age classes are relevant to the two proposed seasons because of the different availability of the age classes of seals being targeted for subsistence use. The oldest seals are available in limited numbers during the hunting season, and the youngest seals (pups) are available during the latter portion of the harvest season. The limited available evidence suggests that pups do not linger offshore near the Pribilofs after weaning, as they start their migration in approximately December (Lea et al., 2009), and thus likely would not be available to hunters during the start of the proposed hunting season (January 1). In addition, because a significant portion of breeding females do not return to the Pribilofs to pup until July, most, if not all, pups born in that year will not be born until after the end of the proposed hunting season (May 31).

NMFS reexamined the record behind the existing prohibition on the taking of pups for subsistence purposes. During the original rulemaking to authorize the subsistence harvest, we incorrectly stated, without explanation, that a harvest of pups could have a disastrous effect on the already declining fur seal population (50 FR 27915, July 8, 1985; 51 FR 24829, July 9, 1986). NMFS has subsequently explained, in the context of the rulemaking to authorize the harvest of pups on St. George Island, that a regulated harvest of male pups would not have a negative effect on the population (79 FR 43007, August 6, 2014; 79 FR 65327, November 4, 2014). The simple explanation for why harvesting pups is not a biological concern for the fur seal population is that pups have a high natural mortality rate, and thus removing a given number of pups from the population has less of a negative effect than taking the same number of older fur seals. NMFS (2014, 2017) analyzed numerous lines of harvest evidence including the harvest of northern fur seal pups from their Russian breeding islands (Kuzin 2010, Ream and Burkanov pers. comm.), survival models (Towell 2007, Fowler et al., 2009), and a model of the proposed St. Paul harvest levels and associated population effects (Towell and Williams, unpublished data) and concluded that the population level effects of the subsistence harvest of 2,000 6 year old males (i.e., the oldest age in the “juvenile” category) would be higher than the harvest of 2,000 male pups, but neither would have significant negative population consequences (NMFS 2017).

Under the proposed rule, the highest permissible yearly pup harvest on St. Paul (2,000 fur seals) is 2.4 percent of the 2016 pup production estimate (80,614), but a more likely harvest level is about half of that and either level represents an insignificant proportion of the pup production. A more extreme example of the sustainability of a pup harvest comes from the average annual Russian commercial harvest of about 4,300 pups from 1987-2006. This level of harvest represents about 11 percent of annual pup production on Bering Island each year during this 20-year period (Ream and Burkanov pers. comm.). The Bering Island harvest of pups included only males from 1987-1992, and averaged over 6,000 annually during that time period (14.6 percent of annual pup production). Ten years after the initiation of the male pup harvest on Bering Island, the trend in pup production was not statistically different from zero (Ream and Burkanov pers. comm.). These results support NMFS's determination that a male pup harvest of up to 2,000 pups, or currently approximately 2.4 percent of annual production, would not have any detectable direct or indirect population level effects.

In the emergency final rule (51 FR 24828, 24836, 24840; July 9, 1986), NMFS promulgated the restriction at 50 CFR 216.72(e)(5) that “[o]nly sub-adult male fur seals 124.5 cm or less in length may be taken” with the intent of having the subsistence harvest replicate the commercial harvest and associated research as closely as practical to allow for continued research comparisons among sites with different harvest levels. NMFS discussed this in the emergency interim rule: It should be stressed that this rule authorizes only the subsistence taking of fur seals even though the methods and schedule employed are derived from the commercial harvest (50 FR 27914, 27918; July 8, 1985). In the emergency final rule, NMFS noted that the result is to confine the harvest to primarily 2, 3, and 4-year-old males (51 FR 24828, 24836; July 9, 1986). Maintaining comparability to the size of commercially-harvested seals (124.5 cm or less in length) has proven not to be an issue because Pribilovians prefer and choose smaller seals for subsistence needs.

Zimmerman and Lechter (1986) and Zimmerman and Melovidov (1987) weighed approximately 950 seals from the 1985 and 1986 subsistence harvests to estimate percentage use, but made no reference to obtaining lengths from the same sample of harvested seals to confirm seals were less than 124.5 cm or whether the harvest selected seals according to their relative abundance in the population. Zimmerman and Lechter (1986) noted that about 80 percent of the seals harvested in 1985 were three-year-old males. Zimmerman and Melovidov (1987) reported that 54 percent of the seals harvested in 1986 were three-year-old males, and noted that this likely represented an Aleut preference for younger seals for food. Hanson et al. (1994) and Caruso and Baker (1996) showed the Aleut preference for younger seals is likely closer to a two-year-old sized seal. NMFS has analyzed the age data of harvested male seals on St. Paul, and the data indicate about 42 percent of the subsistence harvested seals in recent years are two-year-old males versus 13 percent during the last 10 years of the commercial harvest (MML unpublished). Since the emergency final rule in 1986, the Aleuts have never indicated an interest in the subsistence harvest of larger older male seals. Accordingly, authorizing the subsistence use for both hunting and harvesting of juvenile seals (less than seven years old, including pups), rather than dictating a length limit, better accommodates and respects the traditional and cultural preferences of the Aleuts; moreover, the Aleuts' preference to target two to three year old seals in past subsistence harvests indicates that it is not likely that older seals will be targeted in future harvests.

In addition, harvesters use length in combination with coloration, behavior, and head shape to simultaneously make a harvest choice. A length restriction would not be useful for managing the proposed subsistence hunting season from January 1 through May 31. NMFS and ACSPI do not have a clear understanding of the sizes (or ages) of seals available at this time of year, and it is unrealistic to expect hunters to estimate the length of a mostly-submerged seal before pulling the trigger of a firearm. This is also true for the harvest season since a precise measurement of a moving seal on land among ten or more seals of similar size cannot be taken until after the seal is dead. At age seven most male fur seals show secondary sexual characteristics such as growth of a mane and broadening of the sagittal crest, neck, and shoulders (Scheffer 1962) that provide a reliable means for subsistence users to distinguish adult males from juveniles during both the hunting season and the harvest season. Thus, rather than being regulated by a precise length limitation that can only be confirmed after the fact, Pribilovians will be able to take seals under seven years old based on broad age distinctions that can be used in the field to reliably determine eligibility for subsistence use during either the hunting or harvesting season before taking the animals.

Accordingly, the proposed rule would remove the provision at 50 CFR 216.72(e)(5) that only subadult male fur seals 124.5 cm or less in length may be taken. Instead, the proposed rule would authorize the subsistence use to include both hunting and harvesting of juvenile seals (those less than seven years old), including pups. The subsistence harvest regulations for St. George Island (50 CFR 216.72(d)) will retain the 124.5 cm length restriction and will continue to use the term sub-adult male to refer to animals less than that size. St. George harvesters take younger seals on average than St. Paul, and this length restriction has had no impact on their subsistence use. If petitioned to do so or if warranted, NMFS may propose changing those provisions for St. George via subsequent rulemaking.

The proposed rule would authorize Pribilovians on St. Paul to kill juvenile northern fur seals from January 1 through May 31 by using firearms only, although alternative hunting methods consistent with the FSA and 50 CFR 216.71 could be developed by NMFS and ACSPI through the Co-management Council. Northern fur seals are not observed on land for most (January 1 through May 1) of the proposed hunting season (Bigg 1990, NMFS 2017), so ACSPI petitioned NMFS to allow Pribilovians to hunt from land on St. Paul Island for animals in or adjacent to the water using firearms. NMFS proposes to define firearm in the same manner as NMFS has previously defined the term. In a regulatory prohibition on discharge of firearms at or within 100 yards of a Steller sea lion west of 144° W longitude (see 50 CFR 224.103(d)(1)(i)), NMFS has defined a firearm as any weapon, such as a pistol or rifle, capable of firing a missile using an explosive charge as a propellant. NMFS proposes to adopt the same definition in 50 CFR 216.72(e)(1) for the St. Paul hunting season. Pribilovians currently hunt with firearms to take Steller sea lions for subsistence uses during this time of year. During scoping and public comments on the DSEIS, Pribilovians indicated that they historically hunted fur seals at this time of year and this would not only allow them to restore traditional cultural practices but also allow them to secure fresh fur seal meat from January to May, thereby promoting greater food security year-round on St. Paul Island since other sources of fresh meat (including sea lions) are limited during those months.

NMFS has not considered the use of firearms to take northern fur seals for subsistence uses from January through May in previous rulemakings. A primary rationale for why the proposed take of fur seals using firearms would be a sound practice for subsistence use is that fur seal behavior and ecology are substantially different in the winter and spring versus the summer and autumn. Fur seals spend most of their lives at sea and are not reliably available on the Pribilof Islands in the winter and spring, indicating that the hunt is not likely to take breeding fur seals, is not likely to take a significant number of fur seals, and is not likely to incidentally harass non-harvested seals (NMFS 2017), as discussed next.

Adult male northern fur seals land on the Pribilof Islands to breed beginning in early May (Bigg 1986, Gentry 1998). Pribilovians have observed small numbers (fewer than 20 per month in any year) of juvenile and adult male northern fur seals swimming in the nearshore waters on the Pribilof Islands during the winter and spring, and these observations are substantiated by satellite telemetry data (NMFS 2017). A few fur seals are observed on land in the winter, but unlike their behavior in the summer they are typically found very close to the water's edge and cannot be approached closely (NMFS 2017). Progressively younger males arrive and land on the Pribilof Islands from May through December, though there are no data to determine the ages of seals arriving in May (Bigg 1986). The satellite telemetry data also indicate that female fur seals are not observed within 100 nautical miles of the Pribilof Islands from January through May, indicating the probability of accidentally taking female fur seals during the hunting season would be very low (NMFS 2017). Because there is a small likelihood that breeding fur seals are present on or near St. Paul and would be taken during the hunting season, the hunt of fur seals from January 1 to May 31 is not expected to impact the breeding population of northern fur seals or population trends over time.

NMFS (2017) analyzed the potential subsistence mortality of six-year old males during the hunting season. The best available data to estimate the probable mortality rate for fur seals comes from the hunting effort (i.e., available weather days to hunt) and success rates (i.e., struck and lost at sea) for Steller sea lions. NMFS (2017) combined these two sources of information from sea lion hunting to estimate that about 20 to 40 fur seals may be killed during the subsistence hunting season. This represents a practical estimate, without any direct data about fur seal hunting or fur seal availability at this time of the year. We assumed that the number of hunting days and hunter success was most influenced by weather, and that the species (sea lion versus fur seal) would have less influence. We do not know the probability of hunters encountering four-, five-, or six-year-old seals while hunting, but would predict based on the preferences identified during the earlier subsistence harvests (Zimmerman and Melovidov, 1987; Hansen et al., 1992) that hunters would choose the smallest (i.e., youngest) of those juveniles available while they are hunting. Bigg (1986) described the timing of arrival of different aged male fur seals on St. Paul based on the kill data from the commercial harvest that generally started on July 1. Thus, Bigg's (1986) analysis is informative, but there are no data from observations of known-aged individuals from January through May.

While the most likely outcome of the hunting season will be mortality of a mixed number of four-, five-, and six-year old males, NMFS (2017) and Towell and Williams (unpublished) took a conservative approach and modeled the mortality of 2,000 six-year old males for 25 years. This modeling approach is conservative in evaluating the population consequences for several reasons. The longer an individual survives the more likely it will survive to reproduce and contribute to the population. And because survival increases as animals approach sexual maturity, the use of the oldest available seals (six-year-olds) would be removing the seals more likely to successfully contribute to reproduction once sexually mature. A six-year old seal has a higher probability of surviving to the next year than a younger seal. For example, if killing 2,000 four-year-olds, 15-20 percent of them (400) would have died naturally. Modeling for the mortality of six-year-old seals that had survived to near-sexual maturity represents the maximum effect to reproduction and the population. Any hunting mortality of younger seals (four- or five-year-olds), which is likely, would reduce the effect relative to the possible (but unlikely) hunting mortality of exclusively six-year-olds. NMFS (2017) model results indicated a one to two percent reduction in the estimated number of adult males counted in July in the population due to a possible kill of 2,000 six-year-old males compared to a kill of 2,000 males less than 124.5 cm (i.e., males two to four years old). This low percent reduction (one to two percent) is not likely to impact the northern fur seal population overall.

The incidental harassment of non-targeted northern fur seals during the hunting season is not likely to affect many seals. NMFS (2017) reported that due to their general solitary nature and rare occurrence on the Pribilof Islands during the majority of the hunting season, the level of incidental harassment of fur seals on or near St. Paul Island due to the use of firearms to hunt seals on St. Paul Island would be very low. NMFS (2017) reported that the average number of seals observed on St. Paul for the months of January through May was 19, 3, 1, 19, and 42 fur seals each month, respectively. Supporting the on-land observations, NMFS (2017) also estimated that fur seals spend significantly more time in the North Pacific Ocean than in the Bering Sea during the months of January, February, March and April, and May. Thus, on any particular day when a hunter would be hunting, there would be few if any seals on land (likely less than 42), and possibly a slightly higher number in the water. This alleviates concerns about the possibility of noise from firearms disturbing or harassing a significant number of seals or causing seals onshore to stampede offshore. The breeding season starts in late June and, as discussed earlier, female seals are not present and breeding males are not usually present on St. Paul Island between January and May. Therefore, limiting the use of firearms to January 1 through May 31 alleviates concerns about the possibility of harassing breeding fur seals on land. Also, limiting the use of firearms to January 1 through May 31 alleviates concerns about the safety of fur seal researchers and tourists since few, if any, researchers or visitors would be present during that timeframe.

Public comments received on the DSEIS expressed concern that the use of firearms to kill fur seals for subsistence is a wasteful manner of taking, as this method increases the likelihood of struck and lost seals. NMFS has evaluated the taking of fur seals with firearms, and there is no viable alternative method to obtain fur seals at the time of year proposed. The traditional harvest method (see next section) is not practical in the winter and spring because the few fur seals that are present on land from January through May are not found in the inland areas typically occupied during the summer and autumn. If the proposed rule is finalized, NMFS will work with ACSPI and hunters both independently and within the co-management framework to monitor and characterize number of fur seals struck and lost and, if necessary, identify measures to reduce the number of seals lost. These estimated numbers and rates of struck and lost fur seals will be compared to those obtained for Steller sea lions and other marine mammals to determine whether the take may be considered wasteful (i.e., not likely to assure the killing and retrieval of the fur seal (51 FR 24828, 24834; July 9, 1986)), and whether the Co-management Council should consider modifying hunting practices to address waste. In addition, NMFS and ACSPI through the Co-management Council could develop alternative hunting methods. Any alternative methods would need to be non-wasteful and otherwise consistent with Section 105(a) of the FSA and 50 CFR 216.71, and would need to result in substantially similar effects (including, but not limited to, levels of harassment of non-hunted seals). Because alternative methods for hunting seals may have different effects than the methods analyzed by NMFS, NMFS would consider whether any such differences warrant additional rulemaking and NEPA analysis before being implemented.

The proposed rule would authorize Pribilovians on St. Paul to kill juvenile northern fur seals from June 23 through December 31 by harvesting. The proposed rule specifies that subsistence harvest would be without the use of firearms and may be by traditional harvest methods of herding and stunning followed immediately by exsanguination, although alternative harvest methods consistent with the FSA and 50 CFR 216.71 could be developed by NMFS and ACPSI through the Co-management Council. The proposed harvest season is significantly longer than the currently authorized season from June 23 through August 8. When viewed in conjunction with the proposed hunting season from January 1 through May 31 and the proposed limit of 2,000 fur seals for subsistence use, the net effect is to allow the hunting and harvest of the same maximum number of fur seals annually as has been authorized under existing regulations, but spread over a longer period of time. This would allow subsistence users to obtain fresh fur seal meat during more of the year, increasing food security for ACSPI. ACSPI also has indicated they prefer the flexibility of one harvest season defined in the regulations rather than multiple regulated harvest seasons for different ages of available seals as NMFS promulgated for St. George in 2014 (79 FR 65327, November 4, 2014). This proposed rule provides for that flexibility by setting one harvest season from June 23 to December 31 for any male fur seals less than 7 years old (i.e., juvenile).

NMFS distinguishes the harvest as a coordinated and organized effort during the harvest season of multiple subsistence users to provide many seals to meet the subsistence needs of many community members at one time, rather than individual hunters obtaining one seal at a time during the hunting season for use by a small number of individuals. Unlike the hunting season, the proposed rule would not authorize the use of firearms during the harvest season. Instead, the harvest season will continue to use methods consistent with those described as “traditional harvesting techniques” (see 51 FR 24828, July 9, 1986). Thus, the harvest of juvenile fur seals will continue to be by traditional harvest methods of herding and stunning followed immediately by exsanguination.

In addition, NMFS and ACSPI through the Co-management Council could develop alternative harvesting methods. Any alternative methods would need to be non-wasteful and otherwise consistent with Section 105(a) of the FSA and 50 CFR 216.71, and would need to result in substantially similar effects (including, but not limited to, levels of harassment of non-harvested seals). Because alternative methods for harvesting seals may have different effects from the methods analyzed by NMFS, NMFS would consider whether any such differences warrant additional rulemaking and NEPA analysis before being implemented. This approach would allow for the development of alternative harvest methods through the Co-management Council, rather than NMFS attempting to dictate all aspects of harvest methods in regulation. This approach facilitates cooperative management of an important subsistence resource for Pribilovians and ensures Pribilovians who harvest seals will have a role in developing harvest methods that are consistent with the allowable take of fur seals at 50 CFR 216.71.

In addition, the proposed approach recognizes the significant role the commercial harvest and Federal management has played in shaping subsistence use of northern fur seals on the Pribilof Islands and in defining a particular harvest method as “traditional.” The “traditional harvesting techniques” described in the 1986 rule were based on the commercial method of visiting a particular non-breeding fur seal resting area, preventing those seals present on land from escaping into the water, and slowly moving those seals into a group from the resting area to an area inland. The inland area was called the killing field and all seals within the harvestable size limits were killed (Bigg 1986). This was possible because it was estimated that about 80 percent of non-breeding males are not on shore on any particular harvest day (Gentry 1981), and thus escaped the commercial harvest. It was estimated that on average the commercial harvest killed about 41 percent of the three-year old males and 53 percent of the four-year old males available in the population (Marine Mammal Biological Lab 1972). NMFS maintained this level of commercial harvests of sub-adult males for over 30 consecutive years until the herd reduction program was instituted (NMFS 2007, 2014, 2017). This aspect of the “traditional harvesting technique” is known as a round-up and drive, and has been modified for subsistence uses by allowing both excess seals for the daily subsistence need or unwanted seals (e.g., large males or females) to escape prior to them being driven to the killing field. The accepted method of taking on the killing field has included seals being stunned unconscious by a blow to the head with a club and exsanguinated by severing the aorta (51 FR 24828, July 9, 1986). An independent panel of veterinarians reviewed this method of killing and determined it to be painless and humane (51 FR 24828, July 9, 1986).

The harvest season would continue the established subsistence method as has occurred in the past on St. Paul Island and would also authorize harvesting pups using the same technique, though adapted to pup behavior. This approach would enable ACSPI to resume a traditional cultural practice (the subsistence use of fur seal pups) that is prohibited by existing regulations (for more background on the traditional harvest of pups, see the preamble to the St. George proposed rule at 79 FR 43007, 43010-11; July 24, 2014). As explained earlier, NMFS (2014, 2017) has shown that a harvest of pups has a lower biological effect on the population than a similar harvest of sub-adult or juvenile males because at least 50 percent of pups do not survive their first two years at sea after weaning (Lander 1981). NMFS (2017) modeled the mortality of 2,000 male pups, 2,000 two- to four-year-old males, and 2,000 six-year-old males annually for 25 years and estimated a possible reduction in the number of adult males in the twenty-fifth year of about four, six, and eight percent, respectively when compared to a population with no harvest mortality.

ACSPI has indicated an interest in harvesting male pups during the latter half of the proposed harvest season. ACSPI did not identify specific regulatory dates or other regulatory restrictions to harvest pups, but instead wanted to retain the flexibility of allowing subsistence users to determine the best times, locations, and modifications to the methods to harvest pups. The proposed rule does not limit the opportunities to harvest male pups during the harvest season. Adult male fur seals' territorial behavior in July and August limits safe access by humans into areas occupied by pups. Adult males typically prevent entry of people or other seals into breeding areas until late August, when most females are no longer coming into estrous (Gentry 1998). Subsistence users can handle pups safely up until weaning in order to distinguish male from female seals prior to harvest, but this and other restrictions will be managed and monitored within the co-management process, not by regulations.

NMFS has worked with the Traditional Council of St. George Island since 2014 to implement the regulations authorizing the harvest of pups on St. George Island (79 FR 65327, November 4, 2014). NMFS has independently monitored all pup harvests from 2014 through 2017. No female pups have been accidentally harvested by the Pribilovians on St. George Island during this timeframe. If the proposed rule is finalized, NMFS expects similar cooperation with ACSPI and a similarly low level of accidental female pup mortality on St. Paul Island.

The 1986 emergency final rule included two harvest termination provisions regarding the taking of females during the subsistence harvest of male fur seals (51 FR 24828, July 9, 1986). The first provision established a termination threshold of one-half of one percent of the total number of seals harvested per island. Therefore, the harvest termination thresholds in 1986 based on the harvest range of 2,400 to 8,000 males would have been 12 to 40 females. The second provision established a termination threshold when the number of females harvested during any consecutive seven-day period after August 8 exceeds five. Both of these provisions were removed in 1992 when NMFS removed the option to extend the harvest after August 8 (57 FR 33900, July 31, 1992). The probability of encountering immature female fur seals on the hauling grounds increases after August 1 (57 FR 33900, July 31, 1992). Non-breeding female fur seals arrive on the hauling grounds later than similarly-aged males (Bigg 1986).

NMFS and ACSPI are still concerned about the killing of females during the subsistence use seasons on St. Paul Island and the ability of subsistence users to distinguish young females from young males. However, rather than preclude subsistence opportunities in an attempt to prevent any female mortality, NMFS is proposing a safe threshold for female mortality associated with the subsistence hunting and harvest seasons and a female mortality termination provision similar to the previous termination provision (51 FR 24828, July 9, 1986) to minimize population consequences. Since the duration of the combined proposed hunting and harvest seasons would be longer than the current subsistence harvest season, NMFS is proposing to authorize for subsistence use the incidental mortality of up to 20 female fur seals each year (i.e., one percent of the allowable mortality). NMFS also proposes to include a provision to terminate the subsistence use on St. Paul for the rest of the year if 20 female fur seals are killed at any point during a calendar year. Although it is more likely female fur seals would be encountered and killed during the harvest season, the subsistence limit and termination provision apply once 20 female fur seals are killed at any point during a calendar year.

The authorized level of female mortality (20) is higher than allowed under the current Co-management Agreement (8). NMFS and ACSPI will revise the Co-management Agreement so that it is consistent with the proposed regulation if it is finalized. The annual limit on female mortality will incentivize avoiding incidental take of females and other causes of accidental mortality and will not have negative consequences at a population level. NMFS modeled the potential population impact of the different female mortality thresholds of all the alternatives in the DSEIS (NMFS 2017, Towell and Williams unpublished report). NMFS modeled the mortality of 20 female pups and 20 juvenile females (less than six years old) and reported that effects included both lost adult females and changes in reproduction. For the mortality of 20 female pups per year over 25 years, that effect was estimated as a 0.04 percent loss in adult females and 0.04 percent reduction in reproduction using two different historical estimates of female survival (Towell and Williams unpublished report). For the mortality of 20 juvenile females per year over 25 years, that effect was estimated to range from a 0.07 to 0.12 percent loss in adult females and a 0.12 to 0.39 percent reduction in reproduction using two different historical estimates of female survival (Towell and Williams unpublished report). The use of two different estimates of female survival was not expected to show any difference when considering the mortality of female pups, but was expected to provide the range observed for the mortality of up to 20 juvenile females. This low percent reduction in adult females and in reproduction is not likely to impact the northern fur seal population overall.

The Co-management Council may establish interim thresholds of female mortality below the regulatory limit of 20 in order to adjust subsistence use practices. The intent is for the revised Co-management Agreement to incentivize avoiding incidental take and mortality of females, and other sources of accidental mortality. Thus the non-regulatory measures within the management plans developed in the Co-management process would further reduce the likelihood of reaching the limit of 20 female mortalities.

NMFS evaluated ACSPI's petition for rulemaking along with other alternatives in a DSEIS (82 FR 22797, January 13, 2017) and determined that the “taking” of fur seals, including incidental taking of females, must be authorized by regulation (16 U.S.C. 1152, 1155(a)). As noted previously, the proposed rule adds a regulatory provision to the petitioned alternative to authorize the incidental or accidental mortality of up to 20 female fur seals each year. ACSPI petitioned NMFS to include a regulatory provision under the FSA that would allow ACSPI to co-manage subsistence use of northern fur seals under a co-management agreement. The proposed rule does not include this petitioned regulatory provision because co-management of subsistence use is authorized under Section 119 of the MMPA (16 U.S.C. 1388) and so no implementing regulations under the FSA are necessary to allow for co-management between NMFS and ACSPI. ACSPI will be able to continue co-management with NMFS under the MMPA.

If the proposed rule is finalized, NMFS and ACSPI would revise the Co-management Agreement to reflect the new regulatory framework governing the subsistence take of fur seals on St. Paul Island. NMFS and ACSPI would also finalize an in-season monitoring and management plan, which would specify details of hunting and harvest management that the Co-management Council would implement via consensus within the parameters of the regulations. For example, the in-season monitoring and management plan could include non-regulatory provisions that limit the hunting and harvest of fur seals to particular sites, or suspend the hunting and harvest seasons temporarily if a certain number of females (below the regulatory limit of 20) are killed. This approach would strengthen co-management consistent with Section 119 of the MMPA (16 U.S.C. 1388), insofar as ACSPI would be an equal partner with NMFS in determining the details of how the subsistence use seasons are managed under the regulations. ACSPI would monitor the juvenile male hunting and harvest seasons with occasional independent monitoring by NMFS representatives. NMFS and ACPSI would monitor the pup harvest and hunting season consistent with the intent of the revised Co-management Agreement, while ensuring compliance with regulatory requirements and any restrictions or limitations identified in the in-season monitoring and management plan.

NMFS proposes to remove 50 CFR 216.74(b), which states that Pribilovians who engage in the harvest of seals are required to cooperate with scientists who may need assistance in recording tag or other data and collecting tissue or other fur seal samples for research purposes and that Pribilovians who take fur seals for subsistence uses must cooperate with NMFS representatives on the Pribilof Islands who are responsible for compiling harvest information. These requirements reflected NMFS's relationship with St. Paul subsistence users in the 1980s, but the relationship has evolved through co-management to be collaborative and cooperative, rather than hierarchical, and thus the regulatory mandates in 50 CFR 216.74(b) are unnecessary. Instead, NMFS proposes to remove the heading “St. George Island” from current section 216.74(a), which describes the co-management process and the respective roles of NMFS and the tribes, to clarify that 50 CFR 216.74(a) applies to both St. George and St. Paul. Thus, section 216.74 would no longer have subsections.

NMFS proposes to replace the regulatory restriction at 50 CFR 216.72(e), which states that seals on St. Paul Island may only be harvested from the Zapadni, English Bay, Northeast Point, Polovina, Lukanin, Kitovi, and Reef haulout areas and that no haulout area may be harvested more than once per week. When NMFS promulgated this regulation, NMFS did not indicate why haulout areas on St. Paul Island required additional protection regarding the frequency of harvest (once per week) when compared to those areas on St. George that could be harvested twice per week (51 FR 24828, July 9, 1986). It appears NMFS was simply continuing the frequency of commercial harvests on St. Paul as noted in the emergency interim rule (50 FR 27914, July 8, 1985). NMFS's decision about the frequency of subsistence harvests appears to have been influenced by concerns about overharvest and disturbance on the Islands (51 FR 24837, July 9, 1986), but those concerns were not explained relative to differences in effort (and presumably effects) between the commercial harvest and subsistence harvest and relative to different authorized practices (frequency of harvest allowed) between St. Paul Island and St. George Island. The 1986 subsistence harvest on St. Paul Island was limited in the regulations to one harvest per hauling ground for a total of 2,400-8,000 seals less than 124.5 cm in length over 19 harvest days. When examined in the context of the actual harvest effort in 1984 and 1986, and the data collected and analyzed in 1978 and 1979 by Gentry (1981) and Griben (1979) showing that there were no movements of seals from harvested areas or any evidence of a lack of seals at the end of the commercial harvest season, this concern about disturbance during the subsistence harvest appears without basis. It is also not clear whether disturbance to the rookeries from the subsistence harvest on haulout areas would be any different than that observed for the much larger commercial harvest.

In addition, the final rule did not include a rationale for the designation of the harvestable haulout areas (51 FR 24828, July 9, 1986), and some of the place names are problematic. Northeast Point is a geographic region on St. Paul Island, not a haulout area. Northeast Point includes two rookeries, named Vostochni and Morjovi, both of which include at least three separate haulout areas. English Bay refers to a body of water on the southern coast of St. Paul Island, not a haulout area. Four different rookeries around English Bay are occupied by fur seals: Tolstoi, Zapadni Reef, Little Zapadni, and Big Zapadni. Each of these rookeries include at least one separate haulout area that was commercially harvested. Reef is a peninsula of land on the southeast coast that includes three rookeries named Reef, Gorbatch, and Ardiguen. Reef and Gorbatch rookeries each include at least two separate haulout areas, and Ardiguen is separated by a cliff on the inland side with no associated harvestable haulout area. These discrepancies and inconsistencies in identifying the haulout areas in 50 CFR 216.72(e), combined with the unclear original rationale, render that regulatory provision ineffective today. Moreover, there is no present rationale to dictate harvest frequency and location by regulation, particularly in light of the preference of NMFS and ACSPI to manage the subsistence use of fur seals through a non-regulatory, yet effective, co-management process. In lieu of identifying in regulation the specific sites where subsistence use may occur, the proposed rule would leave in-season management of the hunting and harvest seasons to the Co-management Council, including the scheduling and identification of locations and frequency of hunting and harvesting through an annual in-season monitoring and management plan, thereby supporting co-management of the subsistence use of marine mammals by Alaska Natives per Section 119 of the MMPA (16 U.S.C. 1388).

NMFS proposes to replace 50 CFR 216.72(e)(1), which states that the scheduling of the harvest is at the discretion of the Pribilovians, but must minimize stress to the harvested fur seals, and that the Pribilovians must give adequate advance notice of their harvest schedules to NMFS representatives. The existing regulatory language that requires the Pribilovians to notify NMFS of their harvest schedules was based on the premise that NMFS would provide the exclusive harvest monitoring. However, under the existing Co-management Agreement, the Pribilovians on St. Paul Island have taken responsibility for regular monitoring of subsistence use, and have identified and implemented measures to reduce stress to harvested and unharvested seals. Under the Co-management agreement, they have re-instituted morning harvests, slowed the driving times from the haulout areas to the killing fields, and canceled harvests when weather conditions create a high risk for seals overheating. ACSPI has also instituted cool-down periods after the initial drive of seals to the killing fields, in between periods of stunning on the killing field, or if other unforeseen circumstances warrant. There have been no cases of seals overheating during the harvest in the past decade, in contrast to the commercial harvest and the first twenty years of the subsistence harvest (see annual harvest reports https://alaskafisheries.noaa.gov/pr/fur-seal). Under the proposed rule, the Pribilovians would continue to work with NMFS on the cooperative management of the proposed subsistence use seasons, and the Co-management Council would schedule subsistence use and identify the locations and frequency of hunting and harvesting in the annual in-season monitoring and management plan. These measures would help improve the quality of the meat collected for subsistence use. Moreover, allowing the Co-management Council to develop measures for the location, frequency, and timing of subsistence use would respect the cultural identity of the Pribilovians and their stewardship responsibility towards fur seals.

NMFS proposes to replace 50 CFR 216.72(e)(3), and revise 50 CFR 216.72(e)(2) to authorize subsistence harvests without the use of firearms by traditional methods of herding and stunning followed immediately by exsanguination. Currently, 50 CFR 216.72(e)(3) prescribes that no fur seal may be taken except by experienced sealers using the traditional harvesting methods. The rationale for this provision was based on the determination by NMFS in the first years of the subsistence harvest that the traditional method of harvest was certified as humane and the premise that only experienced sealers would be able to maintain the high level of performance required to meet the humane standard. However, experienced sealers are often not available during the current subsistence season on St. Paul Island, which coincides with other limited employment opportunities on the Island, such as commercial fishing (56 FR 36735, 36739; August 1, 1991). A consequence of the regulatory requirement for experienced sealers resulted in a canceled harvest on the last day of the 1992 season (58 FR 32893; June 14, 1993). Specifically, a harvest of approximately 100 seals was scheduled to occur on St. Paul on August 8, 1992, the last available date of the 1992 harvest season. However, due to a family emergency the harvest foreman and other family members had to leave the Island on that date. Thus a lack of available experienced sealers caused the harvest to be canceled.

NMFS (2017) evaluated the tradeoffs of using regulatory requirements to prescribe the methods, scheduling, and personnel for the subsistence use seasons on St. Paul Island, compared to whether NMFS and ACSPI could effectively use a more collaborative non-regulatory approach to meet the regulatory requirement of ensuring the subsistence use is not accomplished in a wasteful manner (50 CFR 216.71(b)). NMFS (2017) determined that subsistence use activities on St. Paul Island, including the individuals authorized to participate in the hunting and harvest seasons, would be more effectively managed by the St. Paul Co-management Council, rather than prescribed by regulation. Such a process will allow the Co-Management Council to manage the hunting and harvest seasons to accommodate the diversity of subsistence use activities on St. Paul Island. The Co-management Council can consider the availability of subsistence users to participate at different times, while ensuring that Pribilovians can preserve their cultural practices and environmental stewardship of fur seals.

NMFS developed the proposed northern fur seal subsistence use regulations to accomplish the intent of the ACSPI's petition, remove duplicative and unnecessary regulatory provisions for Pribilovians on St. George Island, and enhance the conservation and management of northern fur seals. NMFS solicits public comment on the proposed regulations and on the Initial Regulatory Flexibility Analysis (IRFA) prepared for this proposed rule.

NMFS prepared a DSEIS evaluating the impacts of the subsistence harvest of northern fur seals on St. Paul Island on the human environment, and will complete a final SEIS prior to issuing a final rule. NMFS will also prepare a Supplemental Information Report to the St. George Final SEIS prior to issuing a final rule.

This proposed rule has been determined to be not significant for purposes of Executive Order (E.O.) 12866.

An RIR was prepared to assess the costs and benefits of available regulatory alternatives. A copy of this Analysis is available from NMFS (see ADDRESSES). NMFS recommends this action based on those measures that maximize net benefits to the Nation. Specific aspects of the economic analysis related to the impact of the proposed rule on small entities are discussed below in the Initial Regulatory Flexibility Analysis section.

This Initial Regulatory Flexibility Analysis (IRFA) was prepared for this proposed rule, as required by section 603 of the Regulatory Flexibility Act (RFA) (5 U.S.C. 603), to describe the economic impact this proposed rule, if adopted, would have on small entities. An IRFA describes why this action is being proposed; the objectives and legal basis for the proposed rule; the number of small entities to which the proposed rule would apply; any projected reporting, recordkeeping, or other compliance requirements of the proposed rule; any overlapping, duplicative, or conflicting Federal rules; and any significant alternatives to the proposed rule that would accomplish the stated objectives, consistent with applicable statutes, and that would minimize any significant adverse economic impacts of the proposed rule on small entities. Descriptions of this proposed rule, its purpose, and the legal basis are contained earlier in this preamble and are not repeated here.

NMFS prepared an analysis under the Regulatory Flexibility Act (RFA) that carefully examined the potential impacts, including possible economic benefits and costs, and potential adverse economic burdens that may accrue uniquely to small entities, attributable to the action described above. NMFS affirms that the analysts have used the best available scientific data and commercial information to examine the possibility that a small entity, directly regulated by the proposed action, may potentially incur a significant adverse economic impact attributable to adoption of this action.

The harvest of northern fur seals on the Pribilof Islands, Alaska, is for subsistence purposes only by Pribilovians. This action directly regulates the subsistence use of northern fur seals by Alaska Natives residing in the community of St. Paul and St. George (i.e., Pribilovians). Individual Pribilovians, through the coordination of their Tribal Governments, organize volunteer crews to take northern fur seals for subsistence use consistent with the regulations. The RFA recognizes and defines three kinds of small entities: (1) Small businesses; (2) small non-profit organizations; and (3) and small government jurisdictions. Thus, subsistence harvesters do not meet the RFA definition of small entities.

NMFS has identified two small entities that may be affected by this action—the Aleut Community of St. Paul Island, Tribal Government (ACSPI), and the Traditional Council of St. George Island, Tribal Government (Traditional Council) (i.e., both Federally-recognized tribal governments). The tribal governments on behalf of their members report on the level of the subsistence use of northern fur seals to NMFS and therefore may represent an affected small government jurisdiction.

No significant alternatives were identified that would accomplish the stated objectives for deregulating the subsistence use of northern fur seals in the Pribilof Islands, are consistent with applicable statutes, that would reduce costs to potentially affected small entities more than the proposed rule and that is directly responsive to the ACSPI petition.

The Alaska Native residents of St. Paul and St. George rely on a traditional subsistence lifestyle. The proposed rule would improve the management of fur seal subsistence use on St. Paul and St. George and would improve the ability of Pribilovians on both Islands to meet their subsistence needs. For both Islands, the proposed rule removes or reduces regulatory burdens on NMFS and Pribilovians by removing a requirement for NMFS to publish every three years subsistence determinations for each year, by ceasing to use a lower and upper limit to specify harvest levels, and by eliminating or revising regulations related to the lower and upper limit and the suspension and termination of the subsistence use season. For both Islands, the proposed rule also removes duplicative and therefore unnecessary regulations. The proposed rule balances an approach to streamline and simplify the regulations that govern the subsistence use of fur seals on the Pribilof Islands, while recognizing that a non-regulatory approach would prevent the subsistence use of fur seals on the Pribilof Islands. Under the FSA, all taking of fur seals is prohibited, unless authorized in regulations deemed necessary and appropriate for the conservation, management, and protection of the fur seal population (16 U.S.C. 1155(a)). NMFS will continue to regulate some aspects of subsistence use because an exclusively non-regulatory approach is not appropriate to ensure both the conservation goals for fur seals on the Pribilof Islands and the continued subsistence use of fur seals by Pribilovians. As discussed next, however, the preferred alternatives for each Island will streamline and simplify the regulations and have conservation value, while providing positive and beneficial effects for the communities of St. Paul and St. George Islands.

For St. Paul Island, Alternative 2 (Preliminary Preferred/Petitioned Alternative) addresses the subsistence need of the St. Paul community expressed in their petition. The Petitioned Alternative recognizes a formal request by the ACSPI to maximize the use of co-management (i.e., non-regulatory) rather than Federal regulations to restrict and manage subsistence practices. Alternative 2 addresses the petition of ACSPI to reinitiate the pup harvest and winter hunting of fur seals, and Alternative 2 delegates authority to the St. Paul Co-Management Council to develop a process and implement practical, locally-supported conservation controls. These controls may include measures to manage and minimize incidental or accidental mortality of females, monitor and report the subsistence use during all seasons, and prohibit subsistence use at breeding locations where the annual pup production may not sustain such use. Alternative 2 increases opportunities for using fur seals by authorizing harvests of juvenile fur seals from June 23 through December 31, and by adding a hunting season for juvenile fur seals from January 1 through May 31 every year. As a result of this change, the availability of fresh fur seal meat outside the current summer harvest season and the opportunities to co-manage the subsistence use are improved. During the hunting season, firearms would be a permitted method to pursue fur seals on land or in the water. By allowing subsistence use of different age classes of fur seals at more locations on St. Paul, the community would have greater community resilience in meeting the demands of changing future environmental conditions to meet their subsistence need. For example, increasing ambient air temperatures on the Pribilof Islands increases the probability of over-heating seals during the round-up process in the summer, and may result in more canceled harvests. The tribal governments on both islands have begun to collect data to quantify the effects of changing environmental conditions on their ability to meet their subsistence needs. Fur seals may begin to spend more time in the Bering Sea in the winter as less seasonal sea ice forms. As a result they may haul out more frequently on the Pribilof Islands. Alternative 2 would best balance meeting the subsistence needs of the community with the conservation and management of the fur seal population. Alternative 2 also expands co-management of a resource of significant value to the community of St. Paul Island. Therefore, Alternative 2 is believed to have major beneficial effects to the Pribilovians of St. Paul Island. NMFS' preliminary preferred alternative is Alternative 2 due to the high likelihood of positive or beneficial effects on the community, and similar environmental consequences to all other alternatives.

For St. George Island, Alternative 2 will remove duplicative and unnecessary regulations on the take of fur seals and will streamline and simplify the regulations by setting a sustainable maximum harvest level in regulation. Setting in regulation a fixed maximum harvest level for St. George Island will account for the prevailing socio-economic conditions and abundance of the fur seal population on the Pribilof Islands, as well as the variability in the availability of fur seals based on environmental factors and the availability of subsistence users to participate in the subsistence harvests. Alternative 2, as compared to Alternative 1, will reduce current survey burdens on the subsistence harvest on St. George Island while emphasizing a broader consideration of the economic, social, and environmental factors affecting the subsistence use. The result of the regulatory streamlining will improve access and utilization of subsistence resources on St. George Island. This will positively impact food security, availability, and stability for the Pribilovians on St. George Island. Therefore, Alternative 2 is believed to have major beneficial effects to the Pribilovians of St. George Island. NMFS' preliminary preferred alternative is Alternative 2 due to the high likelihood of positive or beneficial effects on the community, and similar environmental consequences to all other alternatives.

NMFS determined that disproportionality is the appropriate standard given the regulated entities are small government jurisdictions. No large entities are allowed to hunt or harvest northern fur seals; therefore the regulatory allowance for tribal members of either the Traditional Council of St. George or the Aleut Community of St. Paul Island to use northern fur seals for subsistence does not create a disproportionate impact that would disadvantage them. NMFS expects this action to have positive economic impacts to the small governmental entities affected by the rule; no negative economic impacts are expected. Based on this analysis, NMFS preliminarily determines that, while there may be two directly regulated small entities that may be beneficially affected by this proposed rule, those entities would not be significantly affected by this proposed rule. However, NMFS has prepared this IRFA to comply with the RFA and to provide potentially affected entities an opportunity to provide comments on this IRFA. NMFS will evaluate any comments received on the IRFA and may consider certifying under section 605 of the RFA (5 U.S.C. 605) that this action will not have a significant economic impact on a substantial number of small entities prior to publication of the final rule.

This proposed rule revises an existing collection-of-information requirement subject to review and approval by OMB under the Paperwork Reduction Act (PRA), although certain collection-of-information requirements would remain in place for both Islands. NMFS obtained OMB control number 0648-0699 for the regulations at 50 CFR 216.71-74, which apply to both Islands. For St. Paul Island, public reporting burden for hunt and harvest reporting for ACSPI is estimated to average 40 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. There are no significant changes in the collection-of-information requirements for St. George as part of this action.

Under the existing regulatory structure, NMFS is required to suspend the subsistence use season for each Island when the lower limit of subsistence use for that Island is reached, and if allowing the season to resume, NMFS is required to determine the number of seals needed to satisfy subsistence need. NMFS substantiates the number of seals needed above the lower limit based on additional information provided from the Pribilovians. Under the proposed rule, these regulatory requirements would be eliminated; therefore, the proposed rule would reduce the burden on the Pribilovians on both Islands to collect and submit additional household surveys or additional information to justify their annual subsistence need.

No duplication, overlap, or conflict between this proposed rule and existing Federal rules has been identified.

The ACSPI petitioned NMFS to revise the northern fur seal subsistence use regulations. NMFS worked with ACSPI and contacted their local Native Corporation (Tanadgusix) about revising the regulations regarding the subsistence use of northern fur seals on St. Paul Island. Their input is incorporated herein. NMFS contacted the tribal government of St. George Island and their local Native Corporation (Tanaq) about revisions to the regulations applicable to the subsistence use of northern fur seals on St. George Island. Their input is incorporated herein. This proposed rule was developed through timely and meaningful consultation and collaboration with the tribal governments of St. Paul and St. George Islands and the local Native Corporations (Tanadgusix and Tanaq).

This proposed rule revises a collection-of-information requirement subject to the Paperwork Reduction Act (PRA). NMFS obtained OMB control number 0648-0699 for the regulations at 50 CFR 216.71-74, which apply to both St. Paul and St. George Islands. For St. Paul Island, public reporting burden for hunt and harvest reporting is estimated to average 40 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. There are no significant changes in the collection-of-information requirements for St. George as part of this action.

NMFS seeks public comment regarding: Whether this revised collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; the accuracy of the burden estimate; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the collection of information, including through the use of automated collection techniques or other forms of information technology. Send comments on these or any other aspects of the collection of information to NMFS at the ADDRESSES above, and email to [email protected] or fax to (202) 395-7285.

Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.