Federal Register Vol. 83, No.25,

Background of Growers' Trust Protection

Congress examined the sufficiency of the PACA fifty years after its inception and determined that prevalent financing practices in the perishable agricultural commodities industry were placing the industry in jeopardy. Particularly, Congress focused on the increase in the number of buyers who failed to pay, or were slow in paying their suppliers, and the impact of such payment practices on small suppliers who could not withstand a significant loss or delay in receipt of monies owed. Congress was also concerned by the common practice of produce buyers granting liens on their inventories to their lenders, which covered all proceeds and receivables from the sales of perishable agricultural commodities, while produce suppliers remained unpaid. This practice elevated the lenders to a secured creditor position in the case of the buyer's insolvency, while the sellers of perishable agricultural commodities remained unsecured creditors with little or no legal protection or means of recovery in a suit for damages.

Deeming this situation a “burden on commerce,” Congress amended the PACA in 1984 (Pub. L. 98-273) to include a statutory trust provision, which provides increased credit security in the absence of prompt payment for perishable agricultural commodities.

Pursuant to this 1984 amendment, perishable agricultural commodities, inventories of food or other derivative products, and any receivables or proceeds from the sale of such commodities or products are to be held in a non-segregated floating trust for the benefit of unpaid sellers. This trust is created by operation of law upon the purchase of such goods, and the produce buyer is the statutory trustee for the benefit of the produce seller.

The trust is a non-segregated “floating trust” made up of all of a buyer's commodity-related assets, under which there may be a commingling of trust assets. There is no need to identify specific trust assets through each step of the accrual and disposal process. Since commingling is contemplated, all trust assets would be subject to the claims of unpaid sellers, suppliers and agents to the extent of the amount owed them. As each supplier gives ownership, possession, or control of perishable agricultural commodities to a buyer, and preserves its trust rights, that supplier becomes a participant in the trust. Consequently, trust participants remain trust beneficiaries until they have been paid in full.

Since 1984, the District Courts of the United States have had jurisdiction to entertain actions by trust beneficiaries to enforce payment from the trust (7 U.S.C. 499e(c)(5)). Therefore, in the event of a business failure, produce creditors may enforce their trust rights by filing a trust action against the buyer in federal district court. In the event of a bankruptcy by a produce buyer, that is, the produce “debtor,” the debtor's trust assets are not property of the bankruptcy estate and are not available for distribution to secured lenders and other creditors until all valid PACA trust claims have been satisfied.

Because of the PACA trust provisions, unpaid sellers, including those outside the United States, have recovered hundreds of millions of dollars that most likely would not otherwise have been collected. The PACA trust provisions protect not only growers, but also other firms trading in fruits and vegetables since each buyer in the marketing chain becomes a seller in its own turn and can preserve its own trust eligibility accordingly. Because each creditor that buys produce can preserve trust rights for the benefit of its own suppliers, any money recovered from a buyer that goes out of business is passed back through preceding sellers until ultimately the grower also realizes the financial benefits of the trust provisions. This is particularly important in the produce industry due to the highly perishable nature of the commodities as well as the many hands such commodities customarily pass through to the end customer.

In 1995, Congress amended the PACA (Pub. L. 104-48), changing several requirements of the PACA trust. Changes included no longer requiring sellers or suppliers to file notices of intent to preserve trust benefits with USDA, and allowing PACA licensees to have their invoices or other billing documents serve as the trust notice. The PACA offers two approaches to unpaid sellers, suppliers, and agents to preserve trust protection. One option allows PACA licensees to declare at the time of sale that the produce is sold subject to the PACA trust, providing protection in the event that payment is late or the payment instrument is not honored. This option allows PACA licensees to protect their trust rights by including specified language on their invoices or other billing statements (7 U.S.C. 499e(c)(4)). The second option for PACA licensees to preserve their trust rights, and the sole method for all non-licensed sellers, requires the seller to provide a separate, independent notice to the buyer of its intent to preserve its trust benefits. The notice must include sufficient details to identify each transaction covered by the trust (7 U.S.C. 499e(c)(3)).

Recent court decisions have invalidated the trust claims of unpaid growers against their growers' agent because the growers did not file a trust notice directly with the growers' agent. Growers' agents sell and distribute produce for or on behalf of growers and may provide such services as financing, planting, harvesting, grading, packing, labor, seed, and containers. The growers have argued that it is not necessary to file a trust notice with their growers' agent because growers' agents are required to preserve the growers' rights as a trust beneficiary against the buyer (7 CFR 46.46(d)(2)). Some courts have ruled that while the growers' agent is required to preserve the growers' trust benefits with the buyer of the produce, the grower has the responsibility to preserve its trust benefits with the growers' agent. This action provides guidance to growers to clarify their responsibilities in preserving their trust rights.

The 1995 amendments to the PACA require written notification to USDA as a precursor to investigations of alleged violations of the PACA. In recent years, produce entities have challenged the USDA's jurisdiction to conduct investigations based on their narrow reading of the definition of “written notification” stated in § 46.49 of the regulations (7 CFR 46.49). The amendment of § 46.49 (7 CFR 46.49) makes it clear that public filings such as bankruptcy petitions, civil trust actions, and judgments constitute written notification. Moreover, AMS clarifies that the filing of a written notification with USDA may be accomplished by a myriad of means including, but not limited to, delivery by regular or commercial mail service, hand delivery, or electronic means such as email, text, or facsimile message. Furthermore, a written notification published in any public forum including, but not limited to, a newspaper or internet website, will be considered filed with USDA upon its visual inspection by any office or official of USDA responsible for administering the Act. Clarification of the meaning of “written notification” ensures that PACA licensees and entities operating subject to the PACA understand the breadth of documentation that could trigger USDA's authority to initiate an investigation of alleged PACA violations.

In order to enhance clarity and improve the administration and enforcement of the PACA, a proposed rule to amend PACA regulations was published in the Federal Register on December 14, 2016 [81 FR 90255]. The comment period initially closed on February 13, 2017. However, the comment period was extended an additional 30 days. The reopening of the comment period was published in the Federal Register on February 17, 2017. The second comment period closed on March 15, 2017.

This final rule amends 7 CFR 46.46 by revising paragraphs (d) and (f)(1)(vi) to clarify that growers or other types of principals who employ agents to sell perishable agricultural commodities on their behalf are among the class of “suppliers or sellers” referenced in section 5(c) of the PACA (7 U.S.C. 499e(c)) and, as such, must preserve their trust benefits against their agents. The revision of paragraph (f)(1)(iv) will identify additional types of documents that can be used in a notice of intent to preserve trust benefits.

This final rule also amends 7 CFR 46.49 by revising it to clarify the meaning of “written notification” as the term is used in section 6(b) of the PACA (7 U.S.C. 499f(b)). Additionally, to reflect current industry practices and advancements in electronic communication, AMS revises § 46.49(d) (7 CFR 46.49(d)) to allow the Secretary to serve a notice or response, as it relates to paragraph (d), by any electronic means, such as registered email, that provides proof of receipt to the electronic mail address or phone number of the subject of the investigation.

AMS received timely filed comments from three parties. One commenter did not address the proposed amendments to the regulations.

The second commenter, a California agricultural trade association, strongly supported the revision to § 46.49 (7 CFR 46.49) stating, that “[t]his clarification now will insure that the industry . . . will understand the breadth of documentation that could trigger USDA's authority to initiate an investigation of alleged PACA violations.” This commenter generally supported the proposed amendment to § 46.46 (7 CFR 46.46) and recommended that “a mechanism for non-licensed growers be instituted to allow for a simplified method and clear pathway which allows growers to preserve their PACA Trust rights.” This commenter also suggested the possibility of “a reduced license fee for growers based on their volume,” allowing them to obtain a PACA license “at a reduced rate that permits them to utilize the automatic method of preserving Trust rights by applying the necessary PACA language to their billing documents.”

We do not adopt the suggestion for a reduced fee for growers based on the grower's volume because it raises significant concerns with respect to implementation on the part of the agency. Adopting a PACA license fee structure based on a grower's “volume” as the commenter suggested would require that growers disclose sales and financial information currently not requested or required of growers to obtain a PACA license, thereby placing an additional burden on the growers to supply confidential information. Similarly, it would subject growers to regular monitoring and verification of the growers' sales information. As the commenter recognizes, the PACA stipulates that only PACA licensees can preserve their trust rights by including trust language on their invoices or other billing documents. Growers are currently not required to obtain a PACA license, but may choose to do so at the established fee, thus enabling them to include the statutory trust language on their billing documents. The statute currently does not provide for the creation of a separate fee structure for growers or a simplified method that allows unlicensed growers to preserve their trust rights as proposed by the commenter.

The third commenter, an attorney, did not comment on the proposed amendment of § 46.46 (7CFR 46.46) but strongly objected to the proposed revisions to § 46.49 (7 CFR 46.49), alleging that they unlawfully expand USDA's authority, contrary to the PACA. The commenter raised four primary concerns with the revision, contending that:

1. The revision circumvents the clear statutory language of PACA. The commenter states that, with respect to initiating an investigation, “instead of merely acknowledging new types of triggering media, the proposed rule goes too far by removing the necessary middle man (i.e., an “interested person”) required by Congress.” The commenter contends that the proposed revision circumvents the requirement that an interested person must file written notice with the USDA or with an employee of the USDA administering the Act.

2. The proposed revision renders portions of PACA meaningless, bypassing jurisdictional requirements. The commenter contends that the proposed revision circumvents the filing requirement, claiming, for instance, that, “[i]f an employee of the USDA administering PACA can merely look at a document and the same will be deemed filed, the meaning of the term “filing” is lost. Further, there would be no “interested person” making the filing subject to penalty for falsity,” and there would be no filing of a notice, no delivery to USDA, and no “written notification” to inform USDA of an alleged violation of the PACA.

3. The proposed revision frustrates PACA's election of remedies provision under 7 U.S.C. 499e(5). The commenter reasons that “[t]he proposed amendment frustrates this election of remedies, in that it would allow the filing of a complaint or other similar legal document in a court of competent jurisdiction (e.g., U.S. District Court or U.S. Bankruptcy Court) to be deemed a filed written notification sufficient to initiate an investigation by the USDA as well.”

4. The proposed revision frustrates the purpose and practical application of 7 CFR 46.46(e)(3). The commenter asserts that the proposed revision would allow the USDA to ignore parties' decision not to notify or involve USDA in a private dispute and “to exceed its jurisdictional grant and insert itself into the private contractual affairs of businesses in the industry.”

We disagree with the commenter's assertion that the revision unlawfully expands USDA's authority, contrary to the PACA. Congress established the PACA in 1930 to protect buyers and sellers of fresh and frozen fruits and vegetables, and the statute and the accompanying regulations have been amended over time to remain relevant to the industry that the PACA serves. The proposed revisions to § 46.49 (7 CFR 46.49) recognize the current realities of the information age that were not readily available when Congress last amended the PACA in 1995. The USDA cannot ignore public information that is relevant to the implementation of the PACA simply because Congress did not anticipate the expanding availability of digital information. Currently, information is much more likely to be generated, stored, and disseminated in electronic or digital format. The USDA has an obligation to properly enforce the PACA as Congress intended, protecting the buyers and sellers of perishable agricultural commodities. When electronic information is readily available to USDA, its hands should not be tied and the information ignored, when those it is tasked to protect could be negatively affected by that lack of action.

The 1995 amendments to the PACA require written notification as a precursor to the investigation of alleged violations of the PACA. The amendments were designed to protect against arbitrary or capricious investigations of licensees and unwarranted prosecutions; the amendments ensured that a source outside the agency of the Department of Agriculture that administers the Act, including but not limited to “any other interested person who has knowledge of or information regarding a possible violation”, provided the impetus for investigation. The proposed revisions to § 46.49 (7 CFR 46.49) do not alter that proposition or erode those protections.

As stated, the proposed revisions are intended to address societal advances in information transmittal and communication, and technological evolution of the industry that the PACA serves. They in no way circumvent the requirement that a written notification be made by an “interested party” that is impartial, insofar as that party is not charged with administering the Act. Nor do they in any way reduce the reliability of the written notification; the submitters of a written notification, prior to the revisions, were not subject to penalty for unreliability or falsity (as is suggested by the third commenter), nor are they post-revisions.

It has always been the purview of the USDA to determine the reliability of any written notice and to decide whether an investigation based on that notice is reasonable and warranted.

Section 6(c) of the PACA (7 U.S.C. 499e(c)) concerns investigations of complaints and notifications listed in both paragraphs (a) and (b) of section 6 of the Act. This section states that: “[i]f there appears to be, in the opinion of the Secretary, reasonable grounds for investigating a complaint made under subsection (a) or a written notification made under subsection (b), the Secretary shall investigate such complaint or notification.” USDA will evaluate the information it receives and determine if an investigation is warranted. If the information is meaningless, meritless or unverifiable, USDA will not initiate an investigation.

Written allegations from an outside source (outside the PACA Division), are merely precursors to a possible investigation under the PACA. It is USDA's responsibility to determine if violations against the PACA were committed, regardless of whether USDA receives an allegation directly from an interested party or from a competent source (e.g., State government documents, court filings, official bankruptcy records). When USDA receives notice of an allegation, the allegation must necessarily be examined, processed, and deliberated upon to assess whether reasonable grounds exist to investigate. There are intervening steps between the receipt of a written notice and an investigation.

The proposed amendment adds an alternative manner in which written notifications may be filed with USDA. The original method of filing contained in the regulations remains unchanged. Public records (court filings, news articles, etc.) that allege a violation of the PACA constitute written notification, and upon review by USDA, are deemed “filed” and may be sufficient to warrant the initiation of an investigation. The complaining party has to file or submit its complaint to some entity that has the authority to make its complaint public in order for USDA to be able to view it. An alleged violator of the PACA should not be able to avoid a possible administrative enforcement investigation simply because its accuser did not provide its written notification directly to USDA.

The third commenter states that the proposed revisions frustrate the PACA's election of remedies provision (7 U.S.C. 499e(5)) and the purpose and practical application of 7 CFR 46.46(e)(3). Those sections of the Act and regulations outline the remedies available to any private person or persons seeking to recover monetary damages resulting from any PACA violation(s), and eligibility of that person or persons to claim trust benefits under the Act. The proposed revisions to § 46.49 (7 CFR 46.49) pertain only to the authority of USDA to investigate alleged PACA violation(s) for administrative enforcement purposes pursuant to section 6(b) of the Act. The proposed regulatory amendments neither implicate nor frustrate the intent or application of the election of remedies or trust provisions of the Act and regulations referenced by the commenter.

For the reasons outlined above, the proposed revisions to §§ 46.46 and 46.49 (7 CFR 46.46 and 46.49) remain unchanged in the final rule.

This final rule has been reviewed under Executive Order 12866 supplemented by Executive Order 13563 and it has been determined that this final rule is not considered a significant regulatory action under section 3(f) of Executive Order 12866 and, therefore, it was not reviewed by the Office of Management and Budget. This rule is not an Executive Order 13771 regulatory action because this rule is not significant under Executive Order 12866.

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform, and is not intended to have retroactive effect. This final rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule. There are no administrative procedures that must be exhausted prior to any judicial challenge to the provisions of this final rule.

This final rule has been reviewed in accordance with the requirements of Executive Order 13175, consultation and Coordination with Indian Tribal governments. The review reveals that this regulation will not have substantial and direct effects on Tribal governments and will not have significant Tribal implications.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), USDA has considered the economic impact of this final rule on small entities. The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Accordingly, Agricultural Marketing Service (AMS) has prepared this final regulatory flexibility analysis.

Small agricultural service firms are defined by the Small Business Administration as those having annual receipts of less than $7,500,000, and small agricultural producers are defined as those having annual receipts of less than $750,000 (13 CFR 121.201). There are approximately 14,500 firms licensed under the PACA, a majority of which could be classified as small entities. Historically, the produce industry has been an entry-level job market. There is a constant turnover involving the closing and opening of businesses. Produce firms generally start as small business entities.

AMS believes that these amendments to the PACA regulations will help all growers, sellers, and suppliers of produce, small or large, to protect their rights under the PACA trust, resulting in the potential recovery of millions of dollars in unpaid produce debt. Moreover, AMS believes that these regulatory amendments more accurately reflect the intent of Congress when it amended the PACA to require written notification as a precursor to investigations by the Secretary of Agriculture.

AMS believes this final rule increases the clarity of the PACA regulations and improves AMS's enforcement of the PACA. AMS has determined that this rule will have no significant economic impact on a substantial number of small entities.

In accordance with OMB regulations (5 CFR part 1320) that implement the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the information collection and recordkeeping requirements that are covered by this final rule are currently approved under OMB number 0581-0031. No changes to those requirements are necessary as a result of this action. Should any changes become necessary, they will be submitted to OMB for approval.

USDA is committed to complying with the E-Government Act, which requires Government agencies in general to provide the public the option of submitting information or transacting business electronically to the maximum extent possible. Forms are available on the PACA website at http://www.ams.usda.gov/rules-regulations/paca and can be printed, completed, and submitted by email, facsimile, or postal delivery.

Under the regulations in “Subpart-Fruits and Vegetables” (7 CFR 319.56-1 through 319.56-81, referred to below as the regulations), the Animal and Plant Health Inspection Service (APHIS) of the United States Department of Agriculture (USDA) prohibits or restricts the importation of fruits and vegetables into the United States from certain parts of the world in an effort to prevent plant pests from being introduced into and spread within the United States.

Section 319.56-3, which includes general import requirements for fruits and vegetables, authorizes the importation of fresh sweet orange (Citrus sinensis (L.), grapefruit (Citrus paradisi MacFad), mandarin (Citrus reticulata Blanco), clementine (Citrus clementina Hort. Ex Tanaka), and tangerine (Citrus tangerine Tanaka) fruit from Colombia into the United States. The general import requirements include an import permit issued by APHIS and inspection of the fruit by APHIS officials at the port of first arrival. Additionally, as a condition of entry,1 APHIS requires consignments of fresh citrus fruit from Colombia to undergo cold treatment in accordance with 7 CFR part 305.

In March 1963, USDA authorized imports of citrus fruit into the United States from Colombia. In 1995, Colombia stopped shipping commercial consignments of citrus fruit to the United States because of decreased citrus production and increased domestic citrus consumption. Twenty years later, in December 2015, Colombia announced their intention to resume exporting commercial consignments of citrus to the United States. That same month, APHIS notified the national plant protection organization (NPPO) of Colombia that it was temporarily suspending its authorization for imports of sweet oranges, tangerines, grapefruit, clementines, and mandarins from Colombia and cancelling permits until further notice. The NPPO of Colombia acknowledged the suspension and no shipments of citrus from Colombia entered the United States. We suspended imports because we noted the emergence of new citrus pests in South America since Colombia initially received approval to export citrus fruit to the United States. In order to protect the United States from plant pests following the pathway of citrus imported from Colombia, we decided to assess the risk potential of these new citrus pests and develop mitigation requirements before considering a request from the NPPO of Colombia on whether to lift the temporary suspension on commercial shipments.

To determine the current pest risk potential, we prepared a pest risk assessment (PRA), followed by a commodity import evaluation document (CIED) that details risk mitigation measures. Copies of the PRA and the CIED may be obtained from the person listed under FOR FURTHER INFORMATION CONTACT or viewed on the Regulations.gov website (see ADDRESSES for instructions for accessing Regulations.gov).

The PRA, titled “Importation of Fresh Citrus Fruit, including Sweet Oranges (Citrus sinensis (L.), Grapefruit (C. paradisi Macfad.), Mandarin (C. reticulata Blanco), Clementine (C. clementina Hort. Ex Tanaka), and Tangerine (C. tangerina Tanaka) from Colombia into the United States (October 2016),” evaluates the risks associated with the importation of fresh citrus fruit from Colombia into the United States. The CIED relies upon the findings of the PRA to establish phytosanitary risk management measures necessary to ensure the safe importation into the United States of fresh citrus fruit from Colombia.

Eleven pests that could follow the pathway of fresh citrus fruit imported from Colombia met the threshold for unacceptable consequences of introduction into the United States:

• Brevipalpus obovatus Donnadieu, privet mite, ornamental flat mite;

• Brevipalpus phoenicis (Geijskes), red and black flat mite;

• Schizotetranychus hindustanicus (Hirst), Hindustan citrus mite;

• Neosilba pendula Bezzi, cassava shoot fly, lance fly;

• Neosilba zadolicha (McAlphine and Steyskal), lonchaeid fly, lance fly;

• Anastrepha fraterculus (Wiedemann), South American fruit fly;

• Anastrepha serpentina (Wiedemann), sapote fruit fly;

• Anastrepha striata Schiner, guava fruit fly;

• Ceratitis capitata (Wiedemann), Mediterranean fruit fly, Medfly;

• Gymnandrosoma aurantianum (Lima), citrus fruit borer; and

• Citrus leprosis virus, CILV.

Our assessment indicated that the citrus fruit borer, as well as the South American, guava, and Mediterranean fruit flies, have a high likelihood of following the pathway of citrus fruit from Colombia. All other quarantine pests on the list were determined to have a medium likelihood of doing so.

We determined from the PRA that the import requirements originally established for citrus fruit from Colombia were no longer sufficient to mitigate the risk posed by these quarantine pests. These conditions were the general import requirements enumerated in § 319.56-3 and two of the five designated phytosanitary measures listed under § 319.56-4(b), specifically, that citrus fruit be treated in accordance with 7 CFR part 305 and inspected by APHIS officials at the port of first arrival.

Under § 319.56-4(d) of the regulations, if we determine that one or more of the five designated phytosanitary measures is not sufficient to mitigate the risk posed by the fruits and vegetables that are currently authorized for importation into the United States under § 319.56-4, we will prohibit or further restrict importation of the fruit or vegetable and may also publish a document in the Federal Register advising the public of our finding. The document will specify the amended import requirements, provide an effective date for the change, and will invite public comment on the subject. We are publishing this notification of our decision to supplement the import requirements for Colombian citrus in accordance with this provision.

Based on our findings in the PRA, we are requiring the application of the additional pest risk management measures identified in the CIED in order for sweet oranges, tangerines, grapefruit, clementines, and mandarins to be eligible for importation from Colombia into the United States. These measures, discussed in further detail below, are: (1) Importation in commercial consignments only, (2) production of fruit only in places of production registered and approved by the NPPO, (3) effective fruit fly trapping programs in the places of production, and (4) standard packinghouse procedures. Furthermore, each commercial consignment must be accompanied by a phytosanitary certificate with an additional declaration issued by the NPPO of Colombia.

APHIS and the NPPO of Colombia have agreed to an operational workplan that details how the risk management measures listed in the CIED will be carried out, subject to APHIS' approval. APHIS will be directly involved with the NPPO in monitoring and auditing implementation of the operational workplan. The additional import requirements for fresh citrus from Colombia are described below.

We are requiring that only commercial consignments of fresh sweet oranges, tangerines, grapefruit, clementines, and mandarins be accepted for export from Colombia into the United States. Produce grown commercially is less likely to be infested with plant pests than noncommercial consignments. Noncommercial consignments are more prone to infestations because the commodity is often ripe to overripe, could be of a variety with unknown susceptibility to pests, or is grown with little or no pest control. Commercial consignments, as defined in § 319.56-2 of the regulations, are consignments that an inspector identifies as having been imported for sale and distribution.

In addition, fresh sweet oranges, tangerines, grapefruit, clementines, and mandarins in commercial consignments for export from Colombia into the United States must be practically free of leaves, twigs and other plant parts, except for stems that are less than 1 inch long and attached to the fruit.

We are also requiring that sweet oranges, tangerines, grapefruit, clementines, and mandarins intended for importation into the United States from Colombia be grown only in places of production that are registered with, and approved by, the NPPO of Colombia. APHIS reserves the right to conduct audits and inspect the places of production, as necessary.

Identity and origin of the fruit must be maintained from the grove, through the packing house, and through export of consignments to the United States. Registration makes it easier to trace consignments of fruit back to the place of production and to apply remedial measures or the removal of places of production from the import program in accordance with the operational workplan if quarantine pests are discovered in consignments destined for the United States.

In addition, we are requiring that plant litter and fallen fruit be removed from the places of production to reduce potential fruit fly, lonchaeid fly, and Lepidoptera host material. Plant litter and fallen fruit must not be included in field containers of fruit brought to the packinghouse to be packed for export to the United States.

We are also requiring that the NPPO of Colombia certify that the places of production growing sweet oranges, tangerines, grapefruit, clementines, and mandarins for export to the United States have effective fruit fly trapping programs approved by APHIS and that places of production follow pest control guidelines, when necessary, to reduce regulated pest populations. Personnel conducting the trapping and pest surveys must be hired, trained, and supervised by the NPPO of Colombia or be personnel authorized by the NPPO. Details of the trapping program will be included in the operational workplan.

To ensure that the trapping is being properly conducted, we are requiring that the NPPO of Colombia keep records of fruit fly detections for each trap and make the records available to APHIS upon request. The NPPO is required to maintain such records for at least 3 years. The NPPO of Colombia is also required to regularly visit and inspect places of production through the citrus exporting season, starting 30 days before harvest and continuing until the end of the shipping season, to ensure that growers and packers are following export protocols. If the NPPO of Colombia finds that a place of production is not complying with the requirements of the operational workplan agreed to between APHIS and the NPPO, no fruit from that place of production will be eligible for export to the United States until APHIS and the NPPO conduct an investigation and appropriate remedial actions have been implemented.

Fresh sweet oranges, tangerines, grapefruit, clementines, and mandarins from Colombia intended for importation into the United States must be packed in a packinghouse registered with the NPPO of Colombia. Such registration facilitates traceback of a consignment of citrus to the packinghouse in which it was packed in the event that quarantine pests were discovered in the consignment at the port of first arrival into the United States.

We require the NPPO of Colombia to monitor and audit the harvesting system and ensure that during the time the packinghouse is in use for exporting fruit to the United States, the packinghouse must clearly segregate and identify fruit for export to the United States to prevent commingling with fruit for other markets.

At the packinghouse, we require that the fruit be washed and brushed and any damaged or diseased fruit culled. Many of the quarantine pests listed in the PRA have stages that are visible upon inspection or cause visible damage. Washing and brushing removes insects and mites from fruit, and culling removes fruit with visible signs of insect and mite damage, which reduces the risk that pests will follow the pathway of citrus fruit exported to the United States.

We are requiring that fruit intended for export to the United States be packed within 24 hours of harvest in an enclosed packinghouse or maintained in cold storage. Fruit must be kept in cold storage or cold treatment while in transit until the fruit arrives in the United States.

In addition, the fruit must be inspected by the NPPO of Colombia or personnel authorized by the NPPO following post-harvest processing. A biometric sample, to be jointly determined by APHIS and the NPPO and listed in the operational workplan, will be visually inspected, and a portion of the fruit will be cut open to detect internal pests, such as fruit flies and Lepidoptera larvae. If a single mite (Brevipalpus obovatus, B. phoenicis or Schizotetranychus hindustanicus), any immature stage of Neosilba spp., or immature stage of Gymnandrosoma aurantianum is found during inspection, the entire lot of fruit will be prohibited from importation into the United States.

Fruit may be imported into the United States only if it is treated in accordance with 7 CFR part 305 with an approved quarantine treatment for Ceratitis capitata and Anastrepha spp.2 listed in the Plant Protection and Quarantine Treatment Manual and monitored by an official authorized by APHIS. U.S. Customs and Border Protection personnel will inspect fruit consignments at the port of entry.

We require the NPPO of Colombia to provide oversight for all program activities, including monitoring phytosanitary control programs, by reviewing them at least once a year, and by maintaining all forms and documents related to activities in places of production and packing houses in the export program. APHIS may monitor places of production, packinghouses, and records if necessary.

We require that fresh sweet oranges, tangerines, grapefruit, clementines, and mandarins imported into the United States from Colombia be accompanied by a phytosanitary certificate with an additional declaration issued by the NPPO of Colombia stating that the fruit in the consignment has been produced in accordance with the requirements of the operational workplan.

The amended import requirements are listed in the FAVIR database upon publication of this document. After the close of the comment period, we will publish a second document responding to any comments we receive. Should these comments raise substantive questions or concerns about the supplemental requirements for importation of fresh sweet oranges, tangerines, grapefruit, clementines, and mandarins into the United States from Colombia, we will reevaluate the requirements accordingly.

Authority: 7 U.S.C. 450, 7701-7772, and 7781-7786; 21 U.S.C. 136 and 136a; 7 CFR 2.22, 2.80, and 371.3.

Discussion

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2017-0257R1, dated January 9, 2018 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Airbus Model A318, A319, and A320 series airplanes, and Model A321-111, -112, -131, -211, -212, -213, -231, -232 airplanes. The MCAI states:

Section 201 of the Controlled Substances Act (CSA), 21 U.S.C. 811, provides the Attorney General with the authority to temporarily place a substance in schedule I of the CSA for two years without regard to the requirements of 21 U.S.C. 811(b) if he finds that such action is necessary to avoid an imminent hazard to the public safety. 21 U.S.C. 811(h)(1). In addition, if proceedings to control a substance permanently are initiated under 21 U.S.C. 811(a)(1) while the substance is temporarily controlled under section 811(h), the Attorney General may extend the temporary scheduling 1 for up to one year. 21 U.S.C. 811(h)(2).

Where the necessary findings are made, a substance may be temporarily scheduled if it is not listed in any other schedule under section 202 of the CSA, 21 U.S.C. 812, or if there is no exemption or approval in effect for the substance under section 505 of the Federal Food, Drug, and Cosmetic Act (FD&C Act), 21 U.S.C. 355. 21 U.S.C. 811(h)(1). The Attorney General has delegated scheduling authority under 21 U.S.C. 811 to the Administrator of the DEA. 28 CFR 0.100.

It is well known that deaths associated with the abuse of substances structurally related to fentanyl 2 in the United States are on the rise and have already reached alarming levels. While a number of factors appear to be contributing to this public health crisis, chief among the causes is the sharp increase in recent years in the availability of illicitly produced, potent substances structurally related to fentanyl. Fentanyl is approximately 100 times more potent than morphine, and the substances structurally related to fentanyl that DEA is temporarily controlling also tend to be potent substances. Typically, these substances are manufactured outside the United States by clandestine manufacturers and then smuggled into the United States.

Fentanyl is often mixed with heroin and other substances (such as cocaine and methamphetamine) or used in counterfeit pharmaceutical prescription drugs. As a consequence, users who buy these substances on the illicit market are often unaware of the specific substance they are actually consuming and the associated risk. According to the Centers for Disease Control and Prevention (CDC), drug overdose deaths involving synthetic opioids (excluding methadone), such as fentanyl and tramadol, increased from 5,544 in 2014 to 9,580 in 2015. According to provisional data released in August 2017 by the CDC, National Center for Health Statistics, an estimated 55 Americans are dying every day from overdoses of synthetic opioids (excluding methadone).3 Drug overdose deaths involving synthetic opioids excluding methadone for the 12-month period ending in January of 2017 (20,145 deaths) more than doubled from the corresponding data for the period ending in January of 2016 (9,945 deaths).

DEA has responded to this crisis by issuing eight temporary scheduling orders to control seventeen substances structurally related to fentanyl since 2015. However, this approach has not been completely effective in preventing the emergence of new substances structurally related to fentanyl. This is because when DEA temporarily controls a given substance structurally related to fentanyl, illicit manufacturers located abroad begin producing new such substances through other structural modifications. Those new nonscheduled substances then are smuggled into the United States, where they are distributed by traffickers in this country as a purportedly “noncontrolled” substance.4 In this way, traffickers are effectively circumventing the temporary control mechanism that Congress established under 21 U.S.C. 811(h) to combat newly emerging dangerous drugs. Post mortem toxicology and medical examiner reports collected by the DEA show mortality connected to substances structurally related to fentanyl. Control of these substances is necessary to avoid an imminent hazard to the public safety.

Given the gravity of the ongoing fentanyl-related overdose crisis in the United States, protection of the public safety demands the utilization of 21 U.S.C. 811(h) in a manner that cannot be readily circumvented by drug traffickers. Specifically, in issuing this temporary scheduling order, DEA exercises its authority to avoid an imminent hazard to the public safety by placing fentanyl-related substances, as defined later in this document, in schedule I. As explained below, these fentanyl-related substances—including those that have not yet been introduced by traffickers into the U.S. market—present a significant risk to the public health and safety and need to be controlled under section 811(h) to avoid an imminent hazard to the public safety. It should also be noted that none of the substances that is being temporarily controlled has a currently accepted medical use in treatment in the United States; nor is any of the substances the subject of an exemption or approval under section 505 of the FD&C Act. In accordance with section 811(h), if any exemption or approval is in effect under section 505 of the FD&C Act with respect to a substance that falls within the definition of a fentanyl-related substance set forth in this document, such substance is excluded from the temporary scheduling order.

On December 29, 2017, as required by 21 U.S.C. 811(h)(A), the DEA Administrator published a notice of intent to issue an order temporarily placing fentanyl-related substances in schedule I. 82 FR 61700. This temporary order places fentanyl-related substances in schedule I of the CSA for two years. DEA may extend the temporary scheduling for an additional year (a total of three years) if proceedings to permanently schedule the substances are pending. As defined in the notice of intent, as well as in this temporary order, fentanyl-related substances includes any substance not otherwise controlled in any schedule (i.e., not included under any other Administration Controlled Substance Code Number) that is structurally related to fentanyl by one or more of the following modifications:

(A) Replacement of the phenyl portion of the phenethyl group by any monocycle, whether or not further substituted in or on the monocycle;

(B) substitution in or on the phenethyl group with alkyl, alkenyl, alkoxyl, hydroxyl, halo, haloalkyl, amino or nitro groups;

(C) substitution in or on the piperidine ring with alkyl, alkenyl, alkoxyl, ester, ether, hydroxyl, halo, haloalkyl, amino or nitro groups;

(D) replacement of the aniline ring with any aromatic monocycle whether or not further substituted in or on the aromatic monocycle; and/or

(E) replacement of the N-propionyl group by another acyl group.

As indicated, the temporary scheduling order includes all substances that fall within the above definition—even if such substances have not yet emerged on the illicit market in the United States. As a result, DEA cannot currently specify the chemical name of every potential substance that might fall under this new definition. However, because the definition of fentanyl-related substance describes a unique chemical structure, DEA has the authority to under 21 U.S.C. 811(h) to temporarily schedule this category of substance. In the future, if and when DEA identifies a specific new substance that falls under the definition, the agency will publish in the Federal Register, and on the agency website, the chemical name of such substance. Thus, the text of the definition of fentanyl-related substance includes language indicating that it “includes, but is not limited to, the following substances:” It bears emphasis, however, that even in the absence of a future publication by DEA specifically identifying such a substance, the substance is controlled by virtue of this temporary scheduling order if it falls within the definition of fentanyl-related substance.

Section 201(h)(4) of the CSA, 21 U.S.C. 811(h)(4), requires the Administrator to notify the Secretary of the Department of Health and Human Services (HHS) of his intention to temporarily place a substance in schedule I of the CSA.5 On November 6, 2017, the Administrator transmitted notice by letter to the Assistant Secretary for Health of HHS of his intent to place fentanyl-related substances, unless listed in another schedule, in schedule I on a temporary basis. The Assistant Secretary responded by letter dated November 29, 2017, and advised that based on a review by the Food and Drug Administration (FDA), they are not aware of any investigational new drug applications or approved new drug applications for fentanyl-related substances as defined above under section 505 of the FD&C Act, 21 U.S.C. 355, and that HHS has no objection to the temporary placement of these substances in schedule I of the CSA. As indicated, in accordance with section 811(h), fentanyl-related substances are defined under this temporary scheduling order to exclude any substance for which an exemption or approval is in effect under section 505 of the FD&C Act.

To find that placing a substance temporarily in schedule I of the CSA is necessary to avoid an imminent hazard to the public safety, the Administrator is required to consider three of the eight factors set forth in 21 U.S.C. 811(c): The substance's history and current pattern of abuse; the scope, duration and significance of abuse; and what, if any, risk there is to the public health. 21 U.S.C. 811(h)(3). These factors include, but are not limited to, actual abuse, diversion from legitimate channels, and clandestine importation, manufacture, or distribution. Id. DEA has considered these factors for fentanyl-related substances, as defined above, and finds that the information is consistent across this class of substances. The DEA's three-factor analysis is available in its entirety under “Supporting and Related Material” of the public docket for this action at www.regulations.gov under Docket Number DEA-476.

Substances that are included in the above-listed structural modifications and any combination of these structural modifications have been found to cause pharmacological effects that are similar to those of fentanyl. It therefore is reasonable to expect that all such substances, even if they have yet to appear on the illicit market in the United States, share the dangerous and potentially lethal properties that have caused the recent spike in fentanyl-related overdose deaths in the United States. While these substances may not yet have appeared in the domestic illicit market, with 21 U.S.C. 811(h), Congress empowered DEA to act proactively to “avoid an imminent hazard to the public safety” by scheduling dangerous substances on a temporary basis before they adversely impact the public safety. Thus, where, as here, DEA has evidence indicating that certain substances, due to their chemical structure and resulting pharmacological properties, as well as observed patterns of production and trafficking of closely related substances, will pose an imminent hazard to the public safety in the absence of control in schedule I (having considered the relevant factors under 21 U.S.C. 811(h)(3)), DEA may issue a temporary order under 21 U.S.C. 811(h). By temporarily placing these fentanyl-related substances in schedule I, it is DEA's intention to deter the production and introduction of these substances into the United States that traffickers might be considering—before such activity even begins—thereby avoiding an imminent hazard to the public safety. The alternative approach, of only temporarily controlling substances that have already appeared in the illicit U.S. market, is beneficial but has not eliminated the danger these newly created substances pose and is not as effective in preventing future deaths and serious injuries associated with these substances. In addition, by controlling fentanyl-related substances, the temporary scheduling order will facilitate the development of international, national, and local prevention strategies that decrease morbidity and mortality from overdoses caused by or associated with fentanyl-related substances.

For these reasons, DEA has concluded that issuing a temporary scheduling order is necessary to avoid an imminent hazard to the public safety.

A substance meeting the statutory requirements for temporary scheduling may only be placed in schedule I. 21 U.S.C. 811(h)(1). Substances in schedule I are those that have a high potential for abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety for use under medical supervision. 21 U.S.C. 812(b)(1).

As indicated, DEA finds that the fentanyl-related substances that are temporarily controlled by virtue of this order have a high potential for abuse. Information provided by the Assistant Secretary of HHS indicates that these fentanyl-related substances, as defined, have no currently accepted medical use in treatment in the United States and lack accepted safety for use under medical supervision.

In accordance with the provisions of section 201(h) of the CSA, 21 U.S.C. 811(h), the Administrator issues this temporary scheduling order to place fentanyl-related substances in schedule I of the CSA. Because the Administrator hereby finds that it is necessary to temporarily place fentanyl-related substances in schedule I to avoid an imminent hazard to the public safety, this temporary order scheduling these substances is effective on the date the order is published in the Federal Register, and is in effect for a period of two years. DEA may extend the temporary scheduling for an additional year (a total of three years) if proceedings to permanently schedule the substances are pending. 21 U.S.C. 811(h)(1) and (2).

Upon the effective date of this temporary order, fentanyl-related substances will be subject to the regulatory controls and administrative, civil, and criminal sanctions applicable to the manufacture, distribution, reverse distribution, importation, exportation, engagement in research, and conduct of instructional activities or chemical analysis with, and possession of schedule I controlled substances including the following:

1. Registration. Any person who handles (manufactures, distributes, reverse distributes, imports, exports, engages in research, or conducts instructional activities or chemical analysis with, or possesses), or who desires to handle, fentanyl-related substances must be registered with the DEA to conduct such activities pursuant to 21 U.S.C. 822, 823, 957, and 958 and in accordance with 21 CFR parts 1301 and 1312, as of February 6, 2018. Any person who currently handles fentanyl-related substances, and is not registered with the DEA, must submit an application for registration and may not continue to handle fentanyl-related substances as of February 6, 2018, unless the DEA has approved that application for registration pursuant to 21 U.S.C. 822, 823, 957, 958, and in accordance with 21 CFR parts 1301 and 1312. Retail sales of schedule I controlled substances to the general public are not allowed under the CSA. Possession of any quantity of these substances in a manner not authorized by the CSA on or after February 6, 2018 is unlawful and those in possession of any quantity of these substances may be subject to prosecution pursuant to the CSA.

2. Disposal of stocks. Any person who does not desire or is not able to obtain a schedule I registration to handle fentanyl-related substances must surrender all currently held quantities of fentanyl-related substances.

3. Security. Fentanyl-related substances are subject to schedule I security requirements and must be handled and stored pursuant to 21 U.S.C. 821, 823, 871(b), and in accordance with 21 CFR 1301.71-1301.93, as of February 6, 2018.

4. Labeling and packaging. All labels, labeling, and packaging for commercial containers of fentanyl-related substances must be in compliance with 21 U.S.C. 825, 958(e), and be in accordance with 21 CFR part 1302. Current DEA registrants shall have 30 calendar days from February 6, 2018, to comply with all labeling and packaging requirements.

5. Inventory. Every DEA registrant who possesses any quantity of fentanyl-related substances on the effective date of this order must take an inventory of all stocks of these substances on hand, pursuant to 21 U.S.C. 827 and 958, and in accordance with 21 CFR 1304.03, 1304.04, and 1304.11. Current DEA registrants shall have 30 calendar days from the effective date of this order to be in compliance with all inventory requirements. After the initial inventory, every DEA registrant must take an inventory of all controlled substances (including fentanyl-related substances) on hand on a biennial basis, pursuant to 21 U.S.C. 827 and 958, and in accordance with 21 CFR 1304.03, 1304.04, and 1304.11.

6. Records. All DEA registrants must maintain records with respect to fentanyl-related substances pursuant to 21 U.S.C. 827 and 958, and in accordance with 21 CFR parts 1304, 1312, and 1317. Current DEA registrants shall have 30 calendar days from the effective date of this order to be in compliance with all recordkeeping requirements.

7. Reports. All DEA registrants who manufacture or distribute fentanyl-related substances must submit reports pursuant to 21 U.S.C. 827 and in accordance with 21 CFR parts 1304 and 1312 as of February 6, 2018.

8. Order Forms. All DEA registrants who distribute fentanyl-related substances must comply with order form requirements pursuant to 21 U.S.C. 828 and in accordance with 21 CFR part 1305 as of February 6, 2018.

9. Importation and Exportation. All importation and exportation of fentanyl-related substances must be in compliance with 21 U.S.C. 952, 953, 957, 958, and in accordance with 21 CFR part 1312 as of February 6, 2018.

10. Quota. Only DEA registered manufacturers may manufacture fentanyl-related substances in accordance with a quota assigned pursuant to 21 U.S.C. 826 and in accordance with 21 CFR part 1303 as of February 6, 2018.

11. Liability. Any activity involving fentanyl-related substances not authorized by, or in violation of, the CSA, occurring as of February 6, 2018, is unlawful, and may subject the person to administrative, civil, and/or criminal sanctions.

Section 201(h) of the CSA, 21 U.S.C. 811(h), provides for a temporary scheduling action where such action is necessary to avoid an imminent hazard to the public safety. As provided in this subsection, the Attorney General may, by order, schedule a substance in schedule I on a temporary basis. Such an order may not be issued before the expiration of 30 days from (1) the publication of a notice in the Federal Register of the intention to issue such order and the grounds upon which such order is to be issued and (2) the date that notice of the proposed temporary scheduling order is transmitted to the Assistant Secretary of HHS. 21 U.S.C. 811(h)(1).

Inasmuch as section 201(h) of the CSA directs that temporary scheduling actions be issued by order and sets forth the procedures by which such orders are to be issued, the notice-and-comment requirements of section 553 of the Administrative Procedure Act (APA), 5 U.S.C. 553, do not apply to this temporary order. In the alternative, even if this order were subject to section 553 of the APA, the Administrator would find that there is good cause to forgo the notice-and-comment requirements of section 553, as any further delays in the process for issuance of temporary scheduling orders would be contrary to the public interest in view of the urgent need to control fentanyl-related substances to avoid an imminent hazard to the public safety.

Since this temporary scheduling action is not a “rule” as defined by 5 U.S.C. 601(2), it is not subject to the requirements of the Regulatory Flexibility Act (RFA). The requirements for the preparation of an initial regulatory flexibility analysis in 5 U.S.C. 603(a) are not applicable where, as here, the DEA is not required by section 553 of the APA or any other law to publish a general notice of proposed rulemaking.

Additionally, this action is not a significant regulatory action as defined by Executive Order 12866 (Regulatory Planning and Review), section 3(f), and, accordingly, this action has not been reviewed by the Office of Management and Budget.

This action will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132 (Federalism) it is determined that this action does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

As noted above, this action is an order, not a rule. Accordingly, the Congressional Review Act is inapplicable, as it applies only to rules. However, if this were a rule, pursuant to the Congressional Review Act, “any rule for which an agency for good cause finds that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest, shall take effect at such time as the federal agency promulgating the rule determines.” 5 U.S.C. 808(2). It is in the public interest to schedule these substances immediately to avoid an imminent hazard to the public safety. This temporary scheduling action is taken pursuant to 21 U.S.C. 811(h), which is specifically designed to enable the DEA to act in an expeditious manner to avoid an imminent hazard to the public safety. 21 U.S.C. 811(h) exempts the temporary scheduling order from standard notice and comment rulemaking procedures to ensure that the process moves swiftly. For the same reasons that underlie 21 U.S.C. 811(h), that is, the DEA's need to move quickly to place these substances in schedule I because they pose an imminent hazard to the public safety, it would be contrary to the public interest to delay implementation of the temporary scheduling order. Therefore, this order shall take effect immediately upon its publication. The DEA has submitted a copy of this temporary order to both Houses of Congress and to the Comptroller General, although such filing is not required under the Small Business Regulatory Enforcement Fairness Act of 1996 (Congressional Review Act), 5 U.S.C. 801-808 because, as noted above, this action is an order, not a rule.

For the reasons set out above, the DEA amends 21 CFR part 1308 as follows:

On November 2, 2015, the President signed into law the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Sec. 701 of Pub. L. 114-74) (“the Act”). The Act requires Federal agencies to adjust the level of civil monetary penalties with an initial “catch-up” adjustment through rulemaking and then make subsequent annual adjustments for inflation. The purpose of these adjustments is to maintain the deterrent effect of civil penalties and to further the policy goals of the underlying statutes.

The Office of Management and Budget (OMB) issued guidance for Federal agencies on calculating the catch-up adjustment. See February 24, 2016, Memorandum for the Heads of Executive Departments and Agencies, from Shaun Donovan, Director, Office of Management and Budget, re: Implementation of the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (M-16-06). Under the guidance, the Department identified applicable civil monetary penalties and calculated the catch-up adjustment. A civil monetary penalty is any assessment with a dollar amount that is levied for a violation of a Federal civil statute or regulation, and is assessed or enforceable through a civil action in Federal court or an administrative proceeding. A civil monetary penalty does not include a penalty levied for violation of a criminal statute, or fees for services, licenses, permits, or other regulatory review. The calculated catch-up adjustment is based on the percent change between the Consumer Price Index for all Urban Consumers (CPI0-U) for the month of October in the year of the previous adjustment (or in the year of establishment, if no adjustment has been made) and the October 2015CPI-U.

The Bureau issued an interim final rule providing for calculated catch-up adjustments on June 30, 2016 (81 FR 42478) with an effective date of August 1, 2016, and requesting comments post-promulgation. The Bureau issued a final rule affirming the catch-up adjustments set forth in the interim final rule on December 2, 2016 (81 FR 86953). The Bureau then issued a final rule making the next scheduled annual inflation adjustment for 2017 on January 23, 2017 (82 FR 7649).

OMB recently issued guidance to assist Federal agencies in implementing the annual adjustments required by the Act which agencies must complete by January 15, 2018. See December 15, 2017, Memorandum for the Heads of Executive Departments and Agencies, from Mick Mulvaney, Director, Office of Management and Budget, re: Implementation of the Penalty Inflation Adjustments for 2018, Pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (M-18-03). The guidance states that the cost-of-living adjustment multiplier for 2018, based on the Consumer Price Index (CPI-U) for the month of October 2017, not seasonally adjusted, is 1.02041. (The annual inflation adjustments are based on the percent change between the October CPI-U preceding the date of the adjustment, and the prior year's October CPI-U. For 2017, OMB explains, October 2017 CPI-U (246.663)/October 2016 CPI-U (241.729) = 1.02041.) The guidance instructs agencies to complete the 2018 annual adjustment by multiplying each applicable penalty by the multiplier, 1.02041, and rounding to the nearest dollar. Further, agencies should apply the multiplier to the most recent penalty amount that includes the initial catch-up adjustment required by the Act.

The annual adjustment applies to all civil monetary penalties with a dollar amount that are subject to the Act. This final rule adjusts the following civil monetary penalties contained in the Bureau's regulations for 2018 by multiplying 1.02041 (i.e., the cost-of-living adjustment multiplier for 2018) by each penalty amount as updated by the adjustment made in 2017:

Consistent with the Act, the adjusted penalty levels for 2018 will take effect immediately upon the effective date of the adjustment. The adjusted penalty levels for 2018 will apply to penalties assessed after that date including, if consistent with agency policy, assessments associated with violations that occurred on or after November 2, 2015 (the date of the Act). The Act does not, however, change previously assessed penalties that the Bureau is collecting or has collected. Nor does the Act change an agency's existing statutory authorities to adjust penalties.

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

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

E.O. 13771 of January 30, 2017, directs Federal agencies to reduce the regulatory burden on regulated entities and control regulatory costs. E.O. 13771, however, applies only to significant regulatory actions, as defined in Section 3(f) of E.O. 12866. OIRA has determined that agency regulations exclusively implementing the annual adjustment are not significant regulatory actions under E.O. 12866, provided they are consistent with OMB Memorandum M-18-03 (See OMB Memorandum M-18-03 at 3). Therefore, E.O. 13771 does not apply to this final rule.

This rule will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) because the rule makes adjustments for inflation.

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

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

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

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

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

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

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

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

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

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

The Department of the Interior strives to strengthen its government-to-government relationship with Indian tribes through a commitment to consultation with Indian Tribes and recognition of their right to self-governance and tribal sovereignty. We have evaluated this rule under the Department's consultation policy and under the criteria in Executive Order 13175 and have determined that it has no substantial direct effects on federally recognized Indian Tribes and that consultation under the Department's Tribal consultation policy is not required.

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

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

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

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

(a) Be logically organized;

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

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

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

(e) Use lists and tables wherever possible.

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

The Act requires agencies to publish annual inflation adjustments by no later than January 15, 2018, notwithstanding section 553 of the Administrative Procedure Act (APA) (5 U.S.C. 553). OMB has interpreted this direction to mean that the usual APA public procedure for rulemaking—which includes public notice of a proposed rule, an opportunity for public comment, and a delay in the effective date of a final rule—is not required when agencies issue regulations to implement the annual adjustments to civil penalties that the Act requires. Accordingly, we are issuing the 2018 annual adjustments as a final rule without prior notice or an opportunity for comment and with an effective date immediately upon publication in the Federal Register.

Section 553(b) of the Administrative Procedure Act (APA) provides that, when an agency for good cause finds that “notice and public procedure . . . are impracticable, unnecessary, or contrary to the public interest,” the agency may issue a rule without providing notice and an opportunity for prior public comment. Under section 553(b), the Bureau finds that there is good cause to promulgate this rule without first providing for public comment. It would not be possible to meet the deadlines imposed by the Act if we were to first publish a proposed rule, allow the public sufficient time to submit comments, analyze the comments, and publish a final rule. Also, the Bureau is promulgating this final rule to implement the statutory directive in the Act, which requires agencies to publish a final rule and to update the civil penalty amounts by applying a specified formula. The Bureau has no discretion to vary the amount of the adjustment to reflect any views or suggestions provided by commenters. Accordingly, it would serve no purpose to provide an opportunity for public comment on this rule prior to promulgation. Thus, providing for notice and public comment is impracticable and unnecessary.

Furthermore, the Bureau finds under section 553(d)(3) of the APA that good cause exists to make this final rule effective immediately upon publication in the Federal Register. In the Act, Congress expressly required Federal agencies to publish annual inflation adjustments to civil penalties in the Federal Register by January 15, 2018, notwithstanding section 553 of the APA. Under the statutory framework and OMB guidance, the new penalty levels take effect immediately upon the effective date of the adjustment. The statutory deadline does not allow time to delay this rule's effective date beyond publication. Moreover, an effective date after January 15 would delay application of the new penalty levels, contrary to Congress's intent.

For the reasons given in the preamble, the Department of the Interior amends 25 CFR Chapter I as follows:

This rule revises 32 CFR part 286 to implement section 552 of title 5, United States Code (U.S.C.) and incorporate the provisions of the OPEN Government Act of 2007 and the FOIA Improvement Act of 2016. This part promotes uniformity in the DoD FOIA Program across the entire Department.

The FOIA, 5 U.S.C. 552, requires agencies to “promulgate regulations, pursuant to notice and receipt of public comment, specifying the schedule of fees applicable to the processing of requests [the FOIA] and establishing procedures and guidelines for determining when such fees should be waived or reduced.” Additionally, according to the FOIA, an agency may, in its regulation, designate those components that can receive FOIA requests, provide for the aggregation of certain requests, and provide for multitrack processing of requests. Finally, the FOIA requires agencies to “promulgate regulations . . . providing for expedited processing of requests for records.”

This rule implements changes to conform to the requirements of the following amendments to the FOIA: The OPEN Government Act of 2007, Public Law 110-175 and the FOIA Improvement Act of 2016, Public Law 114-185. These changes include the roles of the FOIA Public Liaison in § 286.4, § 286.5, § 286.8, § 286.9, and § 286.12; the roles of the FOIA Requesters Service Centers in § 286.3, § 286.4, § 286.5, § 286.8, § 286.9, § 286.11, and § 286.12; the processing of FOIA requests, § 286.7; the timing of responses to FOIA requests, § 286.8; and the fees schedules, Subpart E.

On Thursday, January 5, 2017 (82 FR 1192-1206), the Department of Defense published an interim final rule titled “DoD Freedom of Information Act (FOIA) Program” for a 60-day public comment period. The public comment period ended on March 6, 2017. Two public comments were received. This section addresses the public comments.

Comment: From my reading of changes proposed to this regulation, I fully support this. I support this because it is making reporting and process of FOIA requests the same thought the entire Department of Defense. If this regulation was not passed it would make getting information much more complicated as some areas in the department could deny requests while others could over report. With the uniformity in this regulation, there would be less room for error in the department. Overall this should be implemented as soon as possible because the United States can't afford to under or over report our defense actions.

Response: The Department of Defense appreciates this commenter's support for our regulation.

Comment: The “FOIA” provides access to the inner-workings of the government. The government, including the military represents “we the people.” It's important that we not create a different standard for the disclosure of information that serves the public interest. Even though the government can exercise its discretion as to what information to release, it's important that there be a “uniform” standard across different agencies of the government. For this reason, I support this proposal.

Response: The Department of Defense appreciates this commenter's support for our regulation.

The Department of Defense currently has 14 separate FOIA rules. With the finalization of this department-wide rule, DoD will revoke all component-level FOIA rules. This rulemaking will reduce costs to the public by consolidating the requirements for requests for access to DoD information.

FOIA requesters are a diverse community, including lawyers, industry professionals, reporters, and members of the public. Costs for these requestors can include the time required to research the current FOIA rule for each component and the time and preparation required to submit a request/appeal. DoD FOIA subject matter experts estimate that 40% of FOIA requests to DoD may involve consultation of the Code of Federal Regulations and the department's several FOIA regulations. DoD estimates the consolidation to one FOIA regulation will save those referring to the CFR for FOIA guidance approximately 30 minutes of research, review, and compliance time.

For purposes of estimating opportunity costs, DoD subject matter experts deemed it reasonable to use the average of a lawyer's/judicial law clerk's mean hourly wage ($66.44/hour), as informed by the Bureau of Labor and Statistics, and the 2016 federal minimum wage ($9/hour) to approximate an hourly wage for an average FOIA requester. That rate is $37.72/hour.

Through this consolidation, DoD expects to save the requester community at least $384,080 annually, as reflected in the chart below using FY 2016 data (annualized costs over perpetuity at a 7 percent discount rate is −$384,080; present value costs is −$5,486,857). The cost savings anticipated by the repeal of the DoD Component rules are accounted for in this rulemaking. Individual repeal actions for the DoD Component rules will refer back to this rule.

Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distribute impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule is not a significant regulatory action under E.O. 12866.

This final rule is considered an E.O. 13771 deregulatory action. Details on the estimated cost savings of this rule are discussed in the “expected cost savings” section of the rule.

This final rule is not subject to the Unfunded Mandates Reform Act because it does not contain a federal mandate that may result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100M or more in any one year.

It has been certified that this final rule is not subject to the Regulatory Flexibility Act because it does not have a significant economic impact on a substantial number of small entities. The rule implements the procedures for processing FOIA requests within the Department of Defense, which do not create such an impact.

This final rule does not impose reporting or recordkeeping requirements under the Paperwork Reduction Act of 1995.

Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a rule that imposes substantial direct requirement costs on state and local governments, preempts state law, or otherwise has federalism implications. This final rule will not have a substantial effect on state and local governments, or otherwise have federalism implications.

Accordingly, the interim rule published at 82 FR 1192-1206 on January 5, 2017, is adopted as final with the following changes:

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because doing so would be impracticable and contrary to the public interest. The Coast Guard was unable to publish an NPRM and hold a comment period for this rulemaking due to the short time period between event planners notifying the Coast Guard of the event and publication of this security zone. It is necessary for the Coast Guard to establish this security zone for this event to ensure the appropriate level of protection for high-ranking United States officials and the public. Delaying the rulemaking to allow for opportunity for comment would be contrary to the security zone's intended objectives of protecting the high-ranking United States officials and the public, as it would introduce vulnerability to the safety and security of high-ranking United States officials and the general public.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this temporary rule effective less than 30 days after publication in the Federal Register because doing so would be impracticable and contrary to the public interest for the same reasons discussed above for forgoing notice and comment.

The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The COTP Maryland-National Capital Region has determined that a security zone is needed to protect VIPS (very important persons) and the public, mitigate potential terrorist acts, and enhance public and maritime safety and security in order to safeguard life, property, and the environment on or near the navigable waters near the Hyatt Regency Chesapeake Bay Golf Resort, Spa and Marina in Cambridge, MD.

An event will be held at the Hyatt Regency Chesapeake Bay Golf Resort, Spa and Marina in Cambridge, MD, during February 7-9, 2018. A gathering of high-ranking U.S. officials is expected to take place at this event at Cambridge, MD. This rule establishes a security zone from noon on February 7, 2018, through 1 p.m. on February 9, 2018. The security zone will include all navigable waters of the Choptank River, within 2,000 yards of the Hyatt Regency Chesapeake Bay Golf Resort, Spa and Marina's Breakwater Pavilion, in position latitude 38°33′54″ N, longitude 076°02′47″ W, located in Cambridge, MD. This location is entirely within the Area of Responsibility of the Captain of the Port Maryland-National Capital Region, as set forth at 33 CFR 3.25-15.

Entry into this security zone is prohibited, unless specifically authorized by the COTP Maryland-National Capital Region. Except for public vessels and vessels already at berth, mooring, or at anchor, this rule temporarily requires all vessels in the designated security zone as defined by this rule to immediately depart the security zone. Coast Guard personnel will be present to prevent the movement of unauthorized persons into the zone. Federal, state, and local agencies may assist the Coast Guard in the enforcement of this rule. The Coast Guard will issue Broadcast Notices to Mariners to further publicize the security zone and notify the public of changes in the status of the zone. Such notices will continue until the event is complete.

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

E.O.s 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. E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has not been designated a “significant regulatory action” under E.O. 12866. Accordingly, it has not been reviewed by the Office of Management and Budget.

This regulatory action determination is based on the size, location, and duration of the security zone. This security zone will impact the waters affected by this rule during an enforcement period of approximately two days. Due to the time of year, the amount of vessel traffic that will be prohibited from accessing the security zone is expected to be minimal. In addition, notifications will be made to the maritime community via marine information broadcasts so mariners may adjust their plans accordingly. Such notifications will be updated as necessary to keep the maritime community informed of the status of the security zone.

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves establishing a security zone that is 49 hours in duration and is necessary to provide security for high-ranking U.S. officials and the public. It is categorically excluded from further review under paragraph L60(a) of Figure 2-1 of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES.

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

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

The Environmental Protection Agency (“EPA”) and the Department of the Army (“Army”) (together “the agencies”) are publishing a final rule adding an applicability date to the “Clean Water Rule: Definition of `Waters of the United States' ” (the “2015 Rule”) of February 6, 2020. The effective date of the 2015 Rule was August 28, 2015. On July 27, 2017, the agencies published a proposed rule to initiate the first step in a comprehensive, two-step process intended to review and revise, as appropriate and consistent with law, the definition of “waters of the United States,” after a review initiated in light of Executive Order 13778, “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the `Waters of the United States' Rule” (Feb. 28, 2017). The first step in the process (“Step One”) proposed to rescind the definition of “waters of the United States” promulgated by the agencies in 2015 in the Code of Federal Regulations and revert to the previous definition of “waters of the United States” in place before the 2015 Rule, which defines the scope of the waters covered by the Clean Water Act (“CWA”). In a second step (“Step Two”), the agencies intend to pursue a public notice-and-comment rulemaking in which the agencies would conduct a substantive re-evaluation of the definition of “waters of the United States.”

The agencies have been implementing the previous definition of “waters of the United States” in place before the 2015 Rule as a result of a decision issued by the U.S. Court of Appeals for the Sixth Circuit staying the 2015 Rule nationwide and a decision by the U.S. District Court for the District of North Dakota enjoining the 2015 Rule in 13 States. On January 22, 2018, the Supreme Court held that the courts of appeals do not have original jurisdiction to review challenges to the 2015 Rule. With this final rule adding an applicability date to the 2015 Rule, the agencies intend to provide clarity and certainty about the definition of “waters of the United States” for an interim period while they continue to work on the two-step rulemaking process.

The addition of the applicability date to the 2015 Rule of February 6, 2020 under this final rule would provide that the scope of the CWA remains consistent nationwide and, for a defined, interim period, remains the same as it was prior to promulgation of the rule in 2015 and as it has been since the 2015 Rule was stayed nationwide on October 9, 2015. Furthermore, this rule is necessary in light of the Supreme Court's decision that the courts of appeals do not have original jurisdiction to review challenges to the 2015 Rule and remand of the case with instructions to the Sixth Circuit to dismiss the petitions for review for lack of jurisdiction, which will directly impact the Sixth Circuit's existing nationwide stay of the 2015 Rule. This final rule adding an applicability date to the 2015 Rule maintains the legal status quo and thus provides continuity and certainty for regulated entities, the States and Tribes, agency staff, and the public. Subject to further action by the agencies, until the applicability date of the 2015 Rule, the agencies will administer the regulations in place prior to the 2015 Rule, and will continue to interpret the statutory term “waters of the United States” to mean the waters covered by those regulations, as they are currently being implemented, consistent with Supreme Court decisions and practice, and as informed by applicable agency guidance documents.

State, tribal, and local governments have well-defined and longstanding relationships with the federal government in implementing CWA programs and these relationships are not altered by this final rule. This final rule does not establish any new regulatory requirements. Rather, this rule adds an applicability date to the 2015 Rule and, as a result, leaves in place the current legal status quo nationwide while the agencies continue to engage in substantive rulemaking to reconsider the definition of “waters of the United States.”

In 2015, the agencies published the “Clean Water Rule: Definition of `Waters of the United States' ” (80 FR 37054, June 29, 2015). The 2015 Rule had an effective date of August 28, 2015. On August 27, 2015, the U.S. District Court for the District of North Dakota enjoined the applicability of the 2015 Rule in the 13 States challenging the 2015 Rule in that court, and on October 9, 2015, the U.S. Court of Appeals for the Sixth Circuit stayed the 2015 Rule nationwide pending further action of the court. On November 22, 2017, the agencies proposed to add an applicability date of two years from the date of final action on the proposal. The effective date of the 2015 Rule was established by a document published by the agencies in the Federal Register (80 FR 37054, June 29, 2015). The Code of Federal Regulations text does not include an applicability date; therefore, after consideration of public comment, the agencies are amending the text of the Code of Federal Regulations to add an applicability date. Subject to further action by the agencies, until the applicability date of the 2015 Rule, the agencies will administer the regulations in place prior to the 2015 Rule, and will continue to interpret the statutory term “waters of the United States” to mean the waters covered by those regulations, as they are currently being implemented, consistent with Supreme Court decisions and practice, and as informed by applicable agency guidance documents, as the agencies have been operating pursuant to the Sixth Circuit's October 9, 2015, order. Thus, this final rule allows the current legal status quo to remain in place nationwide.

Congress enacted the Federal Water Pollution Control Act Amendments of 1972, Pub. L. 92-500, 86 Stat. 816, as amended, Pub. L. 95-217, 91 Stat. 1566, 33 U.S.C. 1251 et seq. (“Clean Water Act” or “CWA” or “Act”) “to restore and maintain the chemical, physical and biological integrity of the Nation's waters.” Section 101(a). A primary tool in achieving that purpose is a prohibition on the discharge of any pollutants, including dredged or fill material, to “navigable waters,” except in accordance with the Act. Section 301(a). The CWA provides that “[t]he term `navigable waters' means the waters of the United States, including the territorial seas.” Section 502(7).

The regulations defining the “waters of the United States” currently applicable were established in large part in 1977 (42 FR 37122, July 19, 1977). While EPA administers most provisions in the CWA, the U.S. Army Corps of Engineers (“Corps”) administers the permitting program under section 404. During the 1980s, both of these agencies adopted substantially similar definitions of the term “waters of the United States” (51 FR 41206, Nov. 13, 1986, amending 33 CFR 328.3; 53 FR 20764, June 6, 1988, amending 40 CFR 232.2).

In 2015, the agencies published a final rule defining “waters of the United States” (80 FR 37054). Thirty-one States and other parties sought judicial review in multiple actions in federal district courts and circuit courts of appeal, raising concerns about the scope and legal authority for the 2015 Rule. One district court issued an order granting a motion for preliminary injunction one day prior to the rule's effective date that applies to the 13 plaintiff States in that case, State of North Dakota et al. v. U.S. EPA, No. 15-00059, slip op. at 1-2 (D.N.D. Aug. 27, 2015, as clarified by order issued on September 4, 2015), and several weeks later, the Sixth Circuit stayed the 2015 Rule nationwide to restore the “pre-Rule regime, pending judicial review.” In re U.S. Dep't of Def. & U.S. Envtl. Prot. Agency Final Rule: Clean Water Rule, No. 15-3751 (lead), slip op. at 6. Consistent with the Sixth Circuit's order, the agencies are applying the definition of “waters of the United States” that preceded the 2015 Rule nationwide. On January 13, 2017, the U.S. Supreme Court granted certiorari on the question of whether the court of appeals has original jurisdiction to review challenges to the 2015 Rule. The Sixth Circuit granted petitioners' motion to hold in abeyance the briefing schedule in the litigation challenging the 2015 Rule pending a Supreme Court decision on the question of the court of appeals' jurisdiction. On October 11, 2017, the Supreme Court held oral argument, and on January 22, 2018, the Supreme Court held that the courts of appeals lacked original jurisdiction to review challenges to the 2015 Rule.

Separate from today's final rule, the agencies are engaged in a two-step process intended to review and revise, as appropriate and consistent with law, the definition of “waters of the United States.” This process began in response to an Executive Order issued on February 28, 2017 by the President entitled “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the `Waters of the United States' Rule.” Section 1 of the Order states, “[i]t is in the national interest to ensure that the Nation's navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of the Congress and the States under the Constitution.” The Executive Order directed the EPA and the Army to review the 2015 Rule for consistency with the policy outlined in section 1 of the Order, and to issue a proposed rule rescinding or revising the 2015 Rule as appropriate and consistent with law (Section 2). The Executive Order also directed the agencies to “consider interpreting the term `navigable waters' . . . in a manner consistent with” Justice Scalia's plurality opinion in Rapanos v. United States, 547 U.S. 715 (2006) (Section 3).

On July 27, 2017, the agencies proposed the Step One rule to rescind the 2015 Rule and replace it with the regulatory text that governed prior to the promulgation of the 2015 Rule (82 FR 34899), as informed by applicable guidance documents and consistent with Supreme Court decisions and agency practice and which the agencies are currently implementing consistent with the court stay of the 2015 Rule. The agencies are reviewing and considering the large volume of public comments that they received on the Step One proposal.

This final rule adds an applicability date to the 2015 Rule such that it will not be implemented until February 6, 2020. Until the applicability date of the 2015 Rule and subject to further action by the agencies, the agencies will continue to implement nationwide the previous regulatory definition of “waters of the United States,” and will continue to interpret the statutory term “waters of the United States” to mean the waters covered by those regulations, as they are currently being implemented, consistent with Supreme Court decisions and practice, and as informed by applicable agency guidance documents (the 2003 and 2008 guidance documents 1 ) as the agencies have been operating pursuant to the Sixth Circuit's October 9, 2015, order and the North Dakota district court's injunction. The previous regulatory definitions the agencies will continue to implement, as informed by the 2003 and 2008 guidance documents, are the EPA and the Corps separate regulations defining the statutory term “waters of the United States,” which are interpreted identically and have remained largely unchanged since 1977 (see 42 FR 37122, 37124, 37127 (July 19, 1977)). During the 1980s, both of these agencies adopted definitions substantially similar to those in the 1977 regulations (51 FR 41206, Nov. 13, 1986, amending 33 CFR 328.3; 53 FR 20764, June 6, 1988, amending 40 CFR 232.2).2 The scope of CWA jurisdiction is an issue of national importance, and therefore, the agencies will endeavor to provide for robust deliberations and public engagement as they re-evaluate the definition of “waters of the United States.” While engaging in such deliberations, however, the agencies recognize the need to provide clarity, certainty, and consistency nationwide. The pre-2015 Rule regulatory regime is applicable today as a result of the Sixth Circuit's stay and the District of North Dakota's preliminary injunction of the 2015 Rule. The stay and the preliminary injunction provided some level of certainty and stability for the public while issues regarding the 2015 Rule were reviewed by the courts and are now being re-evaluated by the agencies.

The Supreme Court's decision that the courts of appeals do not have original jurisdiction to review challenges to the 2015 Rule and remand of the case with instructions to the Sixth Circuit to dismiss the petitions for review for lack of jurisdiction will directly impact the Sixth Circuit's stay of the 2015 Rule. As noted previously, prior to the Sixth Circuit's stay order, the U.S. District Court for the District of North Dakota preliminarily enjoined the 2015 Rule in the States that are parties in that litigation (North Dakota, Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, South Dakota, and Wyoming).3 Therefore, when the Sixth Circuit's nationwide stay expires, the 2015 Rule would be enjoined under the District of North Dakota's order in States covering a large geographic area of the country, but the rule would be in effect in the rest of the country pending further judicial action or rulemaking by the agencies. In addition, many other district court cases on the 2015 Rule are pending, including several in which challengers have filed motions for preliminary injunctions. Litigation of these cases, which involve different parties in different courts, may lead to judicial orders affecting the applicability of the 2015 Rule. The agencies have concluded that all of these actions are likely to lead to uncertainty and confusion as to the regulatory regime applicable, and to inconsistencies between the regulatory regimes applicable in different States, pending further rulemaking by the agencies. Having different regulatory regimes in effect throughout the country would be complicated and inefficient for both the public and the agencies.

This final rule establishes a framework for an interim period of time that avoids these inconsistencies, uncertainty, and confusion, pending further rulemaking action by the agencies. The rule ensures that, during an interim period, the scope of CWA jurisdiction will be administered nationwide exactly as it is now being administered by the agencies, and as it was administered prior to the promulgation of the 2015 Rule.

In addition, the agencies are finalizing an applicability date of February 6, 2020, in order to ensure the implementation of a consistent nationwide framework while the agencies continue work on the regulatory process for reconsidering the definition of “waters of the United States.” The agencies are undertaking an extensive outreach effort to gather information and recommendations from States and Tribes, regulated entities, and the public. The scope of the Clean Water Act is of great national interest, and there were more than 680,000 public comments submitted to the agencies on the Step One proposal and approximately 6,400 recommendations submitted in response to the agencies' outreach efforts in 2017. The agencies continue to work as expeditiously as possible on the two-step rulemaking process. Addition of an applicability date to the 2015 Rule will result in additional clarity and predictability and will ensure the application of a consistent interpretation and definition of “waters of the United States” nationwide during the pendency of these rulemaking efforts.

The agencies recognize that this action may be confused with the Step One and Step Two rulemaking efforts. But to be clear, the agencies' Step One proposed rule and any future Step Two actions are separate from today's final rule. The comment period for the Step One proposed rule addressing the rescission of the 2015 Rule closed on September 27, 2017, and the agencies are considering those comments. In addition, the agencies are developing the Step Two proposal addressing potential substantive changes to the definition of the term “waters of the United States.” The agencies today are finalizing this targeted rule to ensure regulatory certainty and consistent implementation of the CWA nationwide while the agencies work on the Step One and Step Two regulatory actions.

1. Docket. An official public docket for this action has been established under Docket ID No. EPA-HQ-OW-2017-0644. The official public docket consists of the documents specifically referenced in this action, and other information related to this action. The official public docket is the collection of materials that is available for public viewing at the OW Docket, EPA West, Room 3334, 1301 Constitution Ave. NW, Washington, DC 20004. This Docket Facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The OW Docket telephone number is 202-566-2426. A reasonable fee will be charged for copies.

2. Electronic Access. You may access this Federal Register document electronically under the “Federal Register” listings at http://www.regulations.gov. An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may access EPA Dockets at http://www.regulations.gov to view public comments as they are submitted and posted, access the index listing of the contents of the official public docket, and access those documents in the public docket that are available electronically. For additional information about EPA's public docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the Docket Facility.

The authority for this action is the Federal Water Pollution Control Act, 33 U.S.C. 1251, et seq., including sections 301, 304, 311, 401, 402, 404, and 501.

The agencies have determined that there are no economic costs and unquantifiable benefits associated with this action. For purposes of considering potential economic impacts of this final rule, the agencies believe it is reasonable and appropriate in light of the ongoing, complex litigation over the 2015 Rule to use the legal status quo as a baseline. This final rule has the effect of providing the public with regulatory certainty while the agencies pursue a substantive rulemaking process. This final rule eliminates a source of uncertainty for the regulated community as they consider investments. While the agencies recognize that there are likely to be benefits associated with the regulatory certainty provided by this final rule, we are unable to quantify those benefits for purposes of considering potential economic impacts of this final rule. The agencies have prepared a memorandum to the record to provide the public with information about this conclusion with respect to the potential economic impacts associated with this action. A copy of the memorandum is available in the docket for this action.

This final rule is effective immediately upon publication. Section 553(d) of the Administrative Procedure Act (“APA”), 5 U.S.C. 553(d), provides that final rules shall not become effective until 30 days after publication in the Federal Register, “except . . . as otherwise provided by the agency for good cause,” among other exceptions. The purpose of this provision is to “give affected parties a reasonable time to adjust their behavior before the final rule takes effect.” Omnipoint Corp. v. FCC, 78 F.3d 620, 630 (D.C. Cir. 1996); see also United States v. Gavrilovic, 551 F.2d 1099, 1104 (8th Cir. 1977) (quoting legislative history). Thus, in determining whether good cause exists to waive the 30-day delay, an agency should “balance the necessity for immediate implementation against principles of fundamental fairness which require that all affected persons be afforded a reasonable amount of time to prepare for the effective date of its ruling.” Gavrilovic, 551 F.2d at 1105.

This final rule will not require affected persons to take action or change behavior to come into compliance, as the rule does not establish any new regulatory requirements. Rather, this rule has the effect of maintaining the legal status quo that has been in place since the Sixth Circuit's nationwide stay of the 2015 Rule and before the promulgation of the 2015 Rule. In addition, the agencies find that there is an immediate need for this rule to go into effect as soon as possible to provide regulatory certainty, as the Supreme Court has ruled that the Sixth Circuit did not have original jurisdiction over the 2015 Rule. See Gavrilovic, 551 F.2d at 1104 (recognizing “urgency of conditions” along with “demonstrated and unavoidable limitations of time” as legitimate grounds for a section 553(d)(3) good cause finding). As discussed herein, the Supreme Court's decision will indirectly impact the existing regulatory framework and likely will result in inconsistent nationwide application of the scope of the CWA unless this final rule becomes effective upon publication. By effectuating this rule immediately, the agencies seek to avoid the nationwide inconsistencies, uncertainty, and confusion that would result from the application of different definitions of “waters of the United States” in different States at different times. Cf. Riverbend Farms, Inc. v. Madigan, 958 F.2d 1479, 1486 (9th Cir. 1992) (finding good cause where the 30-day delay would “throw[] the entire regulatory program out of kilter”). For these reasons, the agencies find that good cause exists under section 553(d)(3) to make this rule effective immediately upon publication.

The agencies received approximately 4,600 public comments on the proposed rule. The agencies have carefully considered those comments.

Some commenters expressed confusion that the pre-publication version of the proposed rule was titled an amendment to the “effective date” of the 2015 Rule, while the Federal Register notice was titled an amendment to the “applicability date” of the 2015 Rule. Other commenters requested clarification of the use of the term “applicability date” in the rule. In accordance with the Document Drafting Handbook of the Office of the Federal Register, the term “effective date” is a term of art used exclusively to mean the date that the Office of Federal Register amends the Code of Federal Regulations by following the amendatory instructions in an agency's final rule. “Document Drafting Handbook,” Office of the Federal Register (Revision 5, dated October 2, 2017) at 3-8. Thus the “effective date” of the 2015 Rule for purposes of the Office of the Federal Register was August 28, 2015, the date the Office of the Federal Register amended the Code of Federal Regulations. The agencies are not changing that “effective date.” However, with this rule, the agencies are making a targeted change to the text of the 2015 Rule in the Code of Federal Regulations by adding an applicability date, which establishes a new date on which the 2015 Rule would apply for purposes of implementation and enforcement of the Clean Water Act, subject to a future rulemaking action taken by the agencies. Those commenters further expressed confusion as to what the impact of the new applicability date would be, in particular on existing permits and ongoing and new requests for jurisdictional determinations. If the new applicability date is reached without further final action by the agencies, the agencies explained in the preamble to the 2015 Rule how they will proceed with respect to existing and new permits and jurisdictional determinations when a changed definition of “waters of the United States” becomes effective, in terms of both the Office of the Federal Register and legal requirements (80 FR 37073-37074).

Commenters in support of this rulemaking to establish an applicability date asserted that the agencies have the discretion to postpone implementation of regulations that have gone into effect where the agencies are in the process of revising a rule, and that the agencies have discretion to establish an applicability date that differs from an effective date. Commenters opposed to the proposed rule stated that the agencies lack statutory authority to postpone the effective date of a rule after its effective date has passed. The agencies disagree that they lack statutory authority to add an applicability date to the 2015 Rule; the agencies' statutory authority flows from their discretionary authority under the Clean Water Act to define “waters of the United States.” Nothing in the Clean Water Act requires the agencies to promulgate a regulatory definition of “waters of the United States,” and, further, nothing in the Clean Water Act requires that any such definition be in effect, or applicable, by a certain time after promulgation. Congress is very clear in the Clean Water Act when it requires EPA to promulgate a particular rule and when it requires a rule to be in effect by a specific time after promulgation. For example, under Section 304(b) of the Act, EPA must promulgate and revise, if appropriate, effluent limitations guidelines. Once those regulations are promulgated, Section 301(b) of the Act requires compliance with those effluent limitations guidelines no later than three years after they are established. In contrast, here, the agencies could have promulgated the same rule in 2015 with an applicability date any number of years in the future. That the agencies chose not to exercise their authority to do so at that time does not divest the agencies of such authority now. Exercise of that authority must be reasonable under the APA, and here the agencies have explained that it is reasonable to change the applicability date of a rule that is currently stayed nationwide by court order, and that was in effect for a short time and only in part of the country.

Some commenters stated that the agencies lack authority under Section 705 of the Administrative Procedure Act, which provides that when an agency finds that justice requires, it may postpone the effective date of an action pending judicial review. The agencies are not utilizing Section 705 in this final rule. For purposes of this final rule, the agencies decided to use their rulemaking authority to provide the public with notice and opportunity to comment through the normal rulemaking process, if on a somewhat shortened timeframe.

Adding an applicability date does not upset the ongoing implementation of the Clean Water Act and the programs governed by the definition of “waters of the United States” because those programs will continue to be implemented as they have been under the nationwide stay and before the promulgation of the 2015 Rule—indeed as they have been for more than a decade since the Rapanos decision. Further, the agencies have reasonably exercised their authority by promulgating a specific end date, rather than an open-ended suspension of the 2015 Rule.

Commenters in support of the addition of an applicability date noted that the rule will help maintain the status quo and thus provide continuity and regulatory certainty throughout the litigation over the 2015 Rule and the agencies' subsequent rulemaking. One commenter asserted that such clarity would be needed to make investment decisions regarding infrastructure and energy projects. Commenters also stated the view that the extension would preserve the status quo and eliminate inconsistencies in the regulatory framework. For example, one commenter suggested that this rule will allow “[f]armers, ranchers, and foresters” to “operate on a level playing field” by removing the potential for the same activities in different States to be subject to different rules. Several commenters representing industry and the regulated community also noted that the rulemaking process could take “years” and indicated that adding an applicability date to the 2015 Rule would reduce uncertainty.

Commenters opposed to the rule asserted that delaying the 2015 Rule will increase regulatory uncertainty because the pre-2015 regulatory regime was confusing and required case-by-case jurisdictional determinations. Further, commenters stated that the agencies cannot “suspend” a rule on the basis that it may be stayed in some parts of the country but not others, or because the agencies may revise the rule. After consideration of these comments, the agencies disagree that the final rule will increase regulatory uncertainty and have concluded that the final rule will increase regulatory certainty. First, the 2015 Rule noted the extensive experience of the agencies in making jurisdictional determinations. Since the Rapanos decision, the agencies, most often the U.S. Army Corps of Engineers, have made more than 400,000 CWA jurisdictional determinations (80 FR 37065). This experience, and the agencies' interpretation and implementation of the scope of “waters of the United States” for more than a decade since the Rapanos decision, provides the certainty that the Sixth Circuit sought when it stayed the rule in order to maintain the status quo. Further, in determining whether the agencies have reasonably concluded that this rule will provide regulatory certainty across the nation, the proper comparison is not to a regulatory regime that never existed—nationwide implementation of the 2015 Rule—but rather to the uncertainty that the agencies have identified as a reasonable concern: Different definitions of “waters of the United States” enjoined or stayed in various judicial districts, States, or groups of States such that the scope of the Clean Water Act varies depending upon where a discharge may occur. The final rule is designed to address that uncertainty by maintaining the status quo for both the public and the State and federal agencies which implement the Clean Water Act. Further, this final rule provides additional certainty because it maintains the status quo for a set period of time, rather than an uncertain one based on the actions by parties and judges in various cases.

Commenters also claimed that this rule establishing an applicability date would result in a regulatory gap because the prior regulatory regime was repealed in 2015 and the new regulatory regime would not apply for another two years. Upon consideration of these comments, the agencies have concluded that there will not be a regulatory gap. As a threshold matter, the text of the rule that was modified by the 2015 Rule is still being applied by the agencies today. The 2015 Rule never went into effect in Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, North Dakota, Nebraska, New Mexico, Nevada, South Dakota, and Wyoming, and was only briefly in effect in the remainder of the country until the Sixth Circuit issued its nationwide stay. That order stayed implementation of the 2015 Rule Furthermore, the agencies clearly explained in the preamble to the proposed rule that, until the new applicability date or a subsequent rulemaking action by the agencies, the agencies will continue to implement the prior regulatory definitions, informed by applicable agency guidance documents and consistent with Supreme Court decisions and longstanding agency practice, as the agencies have been operating pursuant to the Sixth Circuit's October 9, 2015 stay order.

Additionally, the statutory regime remains in place and, until the new applicability date or a subsequent rulemaking action by the agencies, the agencies will continue to interpret the statutory provision “[t]he term `navigable waters' means the waters of the United States, including the territorial seas,” CWA Section 502(7), to mean the waters identified by the prior regulatory definitions, informed by applicable agency guidance documents and consistent with Supreme Court decisions and agency practice. Therefore, during this interim time period the agencies will continue to interpret and implement the Clean Water Act as they have been, informed by pre-2015 Rule definitions and applicable agency guidance documents, and consistent with Supreme Court decisions and longstanding agency practice. The hundreds of thousands of jurisdictional determinations issued primarily by the Corps and the enforcement actions taken by the agencies provide further interpretations of the geographic scope of the Clean Water Act and further basis for the agencies' conclusion that the addition of an applicability date is a reasonable means of maintaining the status quo. The agencies' longstanding interpretation and implementation of the Clean Water Act since Rapanos means that there will not be a gap, nor will it be unclear to the public or the regulated community as to how the agencies intend to continue to implement the Act.

Commenters opposed to the proposed rule stated that postponing the effective date of a rule is tantamount to repeal, and therefore, must proceed through proper rulemaking procedures, including examining the scientific basis of the 2015 Rule and the alternatives, costs and benefits of the delay. Therefore, they claim that the agencies have failed to address certain issues, including: the scientific record supporting the 2015 Rule; the inadequacies of the pre-existing regulatory regime that the 2015 Rule discussed, including the confusion and case-by-case litigation resulting from SWANCC and Rapanos; and why a desire for certainty outweighs the CWA's objectives. Addition of a new applicability date to a rule is not tantamount to a repeal of a rule. Repeal would mean the text of the regulation would no longer exist in the Code of Federal Regulations, and that is not what this final rule does; instead, it adds text to the 2015 Rule. As the Supreme Court noted about the November 2017 proposed rule: “That proposed rule does not purport to rescind the WOTUS Rule; it simply delays the WOTUS Rule's effective date.” National Ass'n of Manufacturers v. Dep't of Defense, et al, 16-299 (2018) at n.5. Because this final rule has been promulgated through proper rulemaking procedures and simply maintains the status quo for an interim period, and does not repeal or replace the 2015 Rule, the agencies are under no obligation to address the merits of the 2015 Rule because the addition of an applicability date to the 2015 Rule does not implicate the merits of that rule. In addition, the agencies believe that the certainty of continued implementation of the agencies' longstanding interpretation of the Clean Water Act for an interim period is not inconsistent with the Clean Water Act's objectives and is not the product of an improper balancing of applicable factors.

The agencies received a number of comments about the length of the comment period. Commenters claimed that a 21-day comment period was insufficient time to adequately respond to the notice of proposed rulemaking, in part because the comment period coincided with the Thanksgiving holiday. Several commenters noted that Executive Order 12866 suggests a 60-day comment period, while other commenters suggested a 30-day minimum. Additionally, some commenters contrasted the 21-day comment period with the 60-day comment period provided for the Step One proposed rule and the six-month comment period provided for the proposed 2015 Rule. The agencies also received requests to extend the comment period.

The APA does not specify a minimum number of days for accepting comment. Rather, agencies must provide the public with a “meaningful opportunity” to comment on a proposed rule. Rural Cellular Ass'n v. FCC, 588 F.3d 1095, 1101 (D.C. Cir. 2009). Though the length of the comment period is a factor in determining whether the public was afforded a “meaningful opportunity” to comment, courts have upheld comment periods of less than 30 days where, for example, the agency was acting under exigent circumstances. See, e.g., Omnipoint Corp. v. FCC, 78 F.3d 620, 629-30 (D.C. Cir. 1996) (upholding 15-day comment period where there was “urgent necessity for rapid administrative action under the circumstances” and the public was not harmed).

Here, the agencies received more than 4,600 comments. Commenters provided a thoughtful analysis of issues relevant to the agencies' proposed rule, including the agencies' legal rationale and authority for adding an applicability date, the factors related to the economic analysis, and the timeframe for the delay. Although the agencies provided longer comment periods for the Step One proposed rule and the proposed 2015 Rule, a shorter comment period for this rule was warranted given the need to proceed expeditiously. Indeed, the Supreme Court issued a decision on the question of original jurisdiction over challenges to the 2015 Rule on January 22, 2018, demonstrating that there was an urgent need to establish a clear regulatory framework to avoid the possible inconsistencies, uncertainty, and confusion that could result from the effects of the Court's ruling. Further, the length of the comment period was appropriate for the scope of this rulemaking, which is a narrowly tailored action adding an applicability date to the 2015 Rule.

Several commenters suggested that the agencies have not approached this rulemaking with an open mind, thus violating the APA and the commenters' due process rights. These commenters also cited to specific examples of Administrator Pruitt's remarks and appearances, including the Administrator's involvement in litigation against the 2015 Rule, as potential evidence that the Administrator has an “unalterably closed mind” and should be disqualified from participating in this rulemaking. See Ass'n of Nat'l Advertisers, Inc. v. FTC, 627 F.2d 1151, 1154 (D.C. Cir. 1979).

To satisfy the APA's notice and comment requirements, agencies must provide a “meaningful opportunity” for comment and “remain sufficiently open minded.” Rural Cellular Ass'n v. FCC, 588 F.3d 1095, 1101 (D.C. Cir. 2009). An agency demonstrates the requisite open mind where it engages in a thoughtful review and consideration of comments, as the agencies have done here. See Mortgage Inv'rs Corp. v. Gober, 220 F.3d 1375, 1378-79 (Fed. Cir. 2000). Further, an agency's failure to revise or change a rule in response to comments is not indicative of a closed mind. Advocates for Highway & Auto Safety v. Fed. Highway Admin., 28 F.3d 1288, 1292-93 (D.C. Cir. 1994).

Moreover, Administrator Pruitt is not disqualified from this rulemaking. An administrator is “presumed to be objective and `capable of judging a particular controversy fairly on the basis of its own circumstances.'” United Steelworkers of Am. v. Marshall, 647 F.2d 1189, 1208 (D.C. Cir. 1980). This presumption is not overcome where an administrator has “taken a public position,” “expressed strong views,” or held “an underlying philosophy with respect to an issue.” Id. Indeed, “[t]he legitimate functions of a policymaker . . . demand an interchange and discussion about important issues.” 627 F.2d at 1168. For this reason, “discussion of policy or advocacy on a legal question . . . is not sufficient to disqualify an administrator” in the rulemaking context. Id. at 1171; see also id. at 1174 (“We would eviscerate the proper evolution of policymaking were we to disqualify every administrator who has opinions on the correct course of his agency's future action.”). Here, neither Administrator Pruitt's statements nor his participation in earlier proceedings related to the 2015 Rule require his recusal. See 647 F.2d at 1208-09. Contrary to some commenters' suggestions, Administrator Pruitt has expressed support for broad public comment to help the agencies make an informed decision.

One commenter alleged that documents released pursuant to a Freedom of Information Act request suggest that the purpose of the proposed rule is to prevent implementation of and facilitate the repeal of the 2015 Rule due to a substantive disagreement with that rule. The commenter further asserts that the agencies' failure to solicit comment on the rule's “true” rationale violates the APA by depriving the public of an opportunity to comment on this issue. Other commenters suggested the purpose of this rule is to avoid judicial review of the 2015 Rule.

Consistent with the APA, agencies must provide sufficient information in a notice of proposed rulemaking such that the public has the opportunity to meaningfully comment on the basis of a proposed rule. See Portland Cement Ass'n v. Ruckelshaus, 486 F.2d 375, 393-94 & n.67 (D.C. Cir. 1973). As discussed herein, the agencies' rationale for this rule is to provide for regulatory certainty and to maintain the legal status quo nationwide. By giving the public an opportunity to comment on this rationale, the agencies have satisfied this obligation under the APA. See also Ad Hoc Metals Coal. v. Whitman, 227 F. Supp. 2d 134, 143 (D.D.C. 2002) (“Judicial review of agency action should be based on an agency's stated justifications, not the predecisional process that led up to the final, articulated decision.”). While the agencies are indeed undertaking rulemaking that could rescind and replace the 2015 Rule, those separate rulemaking efforts do not change the scope and nature of this action, which is simply an effort to provide implementation certainty for a limited period of time.

With respect to the time period of this rule, the agencies proposed establishing an applicability date for the 2015 Rule of two years after a final rule and sought comment on whether the time period should be shorter or longer, and on whether adding the applicability date contributes to regulatory certainty. Relatively few commenters directly addressed whether the timeframe for extending the applicability date was the appropriate length of time.

Of those commenters opposed to the proposed addition of an applicability date, none directly addressed whether the proposed two-year timeframe was appropriate or proposed an alternate timeframe. A number of commenters opposed the extension generally, citing concerns that the delay would result in harm to the environment by not protecting certain categories of waters. One noted that “two years of compromised protection for our nation's waters is not a `relatively short period of time,' ” but did not suggest an alternative. Some commenters called the two-year period “arbitrary,” but did not suggest an alternative.

Of those commenters who supported the proposal to delay implementation of the 2015 Rule, most appeared to directly or indirectly support the proposed two-year timeframe. A number of commenters referred to the need for adequate time to complete rulemaking. One commenter noted that the two-year timeframe was “appropriately tailored to provide a reasonable length of time for the Agencies to undertake this rulemaking to define the geographic scope of WOTUS in a manner that is true to the Clean Water Act (“CWA”), Constitution, and Supreme Court precedent, and that shows proper deference to the States.” Another commenter noted that the two-year extension would provide sufficient time to “carefully and thoroughly” develop “workable, legally defensible regulations.” A commenter further noted that the extension would provide the time for both the agencies and the regulated community to devote their limited resources to engage in the second step of the rulemaking process to develop a new definition of “waters of the United States.”

Two commenters supported the idea of a delayed applicability date but noted that two years might not be sufficient to fully complete the “regulatory process for reconsidering the definition of `waters of the United States.' ” These two commenters recommended an applicability date delayed by three years. Another commenter also noted that two years would be insufficient and as a result recommended that the applicability date for the 2015 Rule be extended indefinitely.

The agencies prepared a memorandum to the record for the proposed rule to provide the public with information about the activities envisioned in support of a comprehensive rulemaking process. The agencies selected the two-year time period as a reasonable time period within which to finalize a rule with a new definition of “waters of the United States.” Indeed, one commenter noted, “The Memorandum for the Record details the tasks and timeline to develop a final rule and supporting documents, including critical stakeholder outreach. . . . The Proposal is narrowly tailored to this timeline.”

Based on the information in the memorandum to the record, as explained in the proposal, and as supported by most comments responding to direct questions about the appropriate timeframe, the agencies conclude that the two-year timeframe is reasonable.

Commenters also stated that the Administrator failed to undergo an ethics review in accordance with procedures set out in 5 CFR 2635.502 (“the impartiality rules”). EPA clarifies that the impartiality regulations in the Standards of Ethical Conduct for Employees of the Executive Branch, 5 CFR part 2635, subpart E, set forth provisions to ensure that employees take appropriate steps to avoid a loss of impartiality in the performance of their official duties. To be clear, the regulation at 5 CFR 2635.502(a) applies primarily to particular matters involving specific parties. While the impartiality regulation may possibly apply to a broader category of particular matters, that occurs only in the most unusual circumstances. As set forth in a legal advisory from the Office of Government Ethics, “the impartiality rule generally focuses on particular matters involving specific parties . . . [and] rulemaking would not, except in unusual circumstances covered under section 502(a)(2), raise an issue under section 502(a).” See Office of Government Ethics Legal Advisory, DO-06-029, “ `Particular Matter Involving Specific Parties,' `Particular Matter,' and `Matter,' ” (Oct. 4, 2006), n. 10. With respect to the proposed rule, EPA notes that the impartiality rules do not apply at all because the proposed rulemaking is not even a “particular matter” within the meaning of the federal ethics rules. For purposes of the ethics rules, particular matters are focused on a discrete and identifiable class of persons such as a particular industry or profession, or involve specific parties, such as a contract or grant. In contrast, this rulemaking affects a large and diverse group of persons and applies across many sectors of the economy. While the rulemaking may be classified as a “matter,” it is not a particular matter. Since this rulemaking does not fall within the definition of a particular matter, the impartiality rules do not apply.

Commenters have stated that this rule is subject to the requirements of National Environmental Policy Act (“NEPA”). It is not; generally speaking, the Clean Water Act exempts actions of the EPA Administrator from NEPA obligations. 33 U.S.C. 1371(c)(1) (With two exceptions not relevant here, “no action of the [EPA] Administrator taken pursuant to [the CWA] shall be deemed a major Federal action significantly affecting the quality of the human environment within the meaning of [NEPA].”). As the Senate Conference Report advised: “If the actions of the Administrator under [the CWA] were subject to the requirements of NEPA, administration of the Act would be greatly impeded.” S. Conf. Rep. No. 92-1236, as reprinted in 1972 U.S.C.C.A.N. 3776, 3827.

The statutory exemption applies here despite the fact that EPA is promulgating this rule jointly with the Army. Nothing in the CWA's exemption from NEPA limits it to actions taken by EPA alone. See, e.g., Murray Energy Corp. v. U.S. Dep't of Def., 817 F.3d 261, 273 (6th Cir. 2016) (“That the Clean Water Rule was promulgated jointly by the EPA Administrator and the Secretary of the Army does not defeat the fact that it represents action, in substantial part, of the Administrator.”); see also Municipality of Anchorage v. United States, 980 F.2d 1320, 1328-29 (9th Cir. 1992) (holding that an action “does not cease to be `action of the Administrator' merely because it was adopted and negotiated in conjunction with the Secretary of the Army and the Corps”). The Municipality court found that a Memorandum of Agreement between EPA and the Corps providing guidance for administration of the section 404 permitting program was exempt from NEPA under section 1371(c). 980 F.2d at 1329. This rule adds an applicability date to a rule that concerns the jurisdictional scope of the entire Act, implicating the many CWA programs administrated only by EPA (EPA shares its CWA authority with the Army only with respect to section 404, 33 U.S.C. 1344). EPA has the ultimate authority to determine the scope of CWA jurisdiction, see Administrative Authority to Construe section 404 of the Federal Water Pollution Control Act, 43 Opp. Att'y Gen. 197 (1979), and the rule is an “action of the Administrator.” In re Dep't of Def., 817 F.3d at 273.

Many tribal commenters objected to EPA and the Army not consulting with Tribes pursuant to Executive Order 13175 on this rulemaking. Several Tribes commented that the trust relationship between Tribes and EPA obligates EPA to conduct meaningful government-to-government consultation with Tribes on EPA actions that will directly affect Tribes, and EPA did not do so for this proposed action. Some tribal commenters characterize “meaningful government-to-government” consultation as in-person meetings between federal and tribal government leaders, and not webinars or phone calls. Tribal commenters noted potential impacts of postponing the 2015 Rule's applicability date, including causing increased uncertainty for protections of culturally significant plants, animals, and waters.

Because this current rule does not change the legal status quo that has been in effect for many years (but rather reinforces it), it has no tribal implications as described in Executive Order 13175, and the Executive Order does not apply to this final action. As noted elsewhere, the agencies have engaged in, and continue to engage in, consultation with Tribes on the consideration of substantive revisions to the “waters of the United States” definition.

A few commenters stated that the agencies should have engaged in federalism consultation with the States pursuant to Executive Order 13132. Because this rule merely reinforces the legal framework that has been in place under the statute for many years, this action does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. As noted elsewhere, the agencies have engaged in, and continue to engage in, consultation with States and local governments on consideration of substantive revisions to the “waters of the United States” definition.

This action is a significant regulatory action under Executive Order 12866 so it was submitted to the Office of Management and Budget (“OMB”) for review. Any changes made in response to OMB review have been documented in the docket.

In addition, the agencies prepared a memorandum to the record regarding analysis of the potential economic impacts associated with this action. The agencies have determined that there are no costs and unquantifiable benefits associated with this action. This action simply adds an applicability date to the 2015 Rule, which has been stayed nationwide, and the legal status quo continues to remain in place. A copy of the memorandum is available in the docket for this action.

This action is not an Executive Order 13771 regulatory action.

This rule does not involve any information collection activities subject to the PRA, 44 U.S.C. 3501 et seq.

We certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. In making this determination, the impact of concern is any significant adverse economic impact on small entities. An agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, has no net burden or otherwise has a positive economic effect on the small entities subject to the rule. This action simply adds an applicability date to the 2015 Rule, which has been the subject of a nationwide stay, keeping the legal status quo in place. We have therefore concluded that this action will not have a significant impact on small entities. This analysis is contained in a memorandum to the record, which is available in the docket for this action.

This action does not contain an unfunded mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any State, local or tribal governments or the private sector. The definition of “waters of the United States” applies broadly to all CWA programs.

This action does not have federalism implications, as this action is limited to adding an applicability date to the 2015 Rule. It therefore will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. This action simply adds an applicability date to the 2015 Rule, which has been stayed nationwide, and the legal status quo continues to remain in place. Thus, Executive Order 13132 does not apply to this action.

This action does not have Tribal implications, as specified in Executive Order 13175. This action simply adds an applicability date to the 2015 Rule, which has been stayed nationwide, and the legal status quo continues to remain in place. Thus, Executive Order 13175 does not apply to this action.

The agencies interpret Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the agencies have reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk.

This action is not a “significant energy action” because it is not likely to have a significant adverse effect on the supply, distribution or use of energy. This action simply adds an applicability date to the 2015 Rule, which has been stayed nationwide, and the legal status quo continues to remain in place.

This rulemaking does not involve technical standards.

The agencies believe that this action is not subject to Executive Order 12898 (59 FR 7629, February 16, 1994) because it does not establish an environmental health or safety standard. This action simply adds an applicability date to the 2015 Rule, which has been stayed nationwide, and the legal status quo continues to remain in place. The agencies will consider the impact on minority and low-income populations consistent with this Executive Order in the context of possible substantive changes as part of any reconsideration of the 2015 Rule.

This action is subject to the CRA, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. OMB has concluded that it is not a “major rule” as defined by 5 U.S.C. 804(2).

For the reasons set out in the preamble, title 33, chapter II of the Code of Federal Regulations is amended as follows:

For reasons set out in the preamble, title 40, chapter I of the Code of Federal Regulations is amended as follows:

The site to be deleted from the NPL is: Vancouver Water Station #4, Vancouver, Washington. A Notice of Intent to Delete for this Site was published in the Federal Register (82 FR 44545-44548) on September 25, 2017.

The closing date for comments on the Notice of Intent to Delete was October 25, 2017. No public comments were received and EPA is proceeding with deletion.

EPA maintains the NPL as the list of sites that appear to present a significant risk to public health, welfare, or the environment. Deletion from the NPL does not preclude further remedial action. Whenever there is a significant release from a site deleted from the NPL, the deleted site may be restored to the NPL without application of the hazard ranking system. Deletion of a site from the NPL does not affect responsible party liability in the unlikely event that future conditions warrant further actions.

For reasons set out in the preamble, 40 CFR part 300 is amended as follows:

The site to be deleted from the NPL is: Vancouver Water Station #1 Superfund Site, Vancouver, Washington. A Notice of Intent to Delete for this Site was published in the Federal Register (82 FR 44548-44551) on September 25, 2017.

The closing date for comments on the Notice of Intent To Delete was October 25, 2017. One public comment was received. The comment was not a site-specific adverse comment and EPA is proceeding with deletion. A responsiveness summary was prepared and placed in both the docket, EPA-HQ-SFUND-1994-0009, on www.regulations.gov, and in the site information repositories listed above.

EPA maintains the NPL as the list of sites that appear to present a significant risk to public health, welfare, or the environment. Deletion from the NPL does not preclude further remedial action. Whenever there is a significant release from a site deleted from the NPL, the deleted site may be restored to the NPL without application of the hazard ranking system. Deletion of a site from the NPL does not affect responsible party liability in the unlikely event that future conditions warrant further actions.

For reasons set out in the preamble, 40 CFR part 300 is amended as follows:

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

On October 30, 2017, NMFS published a proposed rule for the framework action and requested public comment (82 FR 50104). The proposed rule and framework action outline the rationale for the action contained in this final rule. A summary of the management measure described in the framework amendment and implemented by this final rule is provided below.

This final rule removes the current limitation on the number of unrigged hooks allowed per bottom longline vessel in the eastern Gulf exclusive economic zone (EEZ), while retaining the limit of 750 hooks that can be rigged for fishing.

The limitation on the number of unrigged hooks was put in place by Amendment 31 to the FMP, which contained several management measures to reduce sea turtle takes by the bottom longline component of the Gulf reef fish fishery (75 FR 21512; April 26, 2010). Since the implementation of Amendment 31, bottom longline endorsement holders using bottom longline gear in the eastern Gulf EEZ have reported increases in bottom longline hook losses due to shark bite-offs and through normal fishing effort. Therefore, vessel operators who use bottom longline gear in the eastern Gulf EEZ requested that the Council increase the number of total unrigged hooks per vessel, while still keeping in place the restriction of 750 hooks rigged to fish at any one time.

Observer data from 2010-2016 have shown the average amount of hooks lost per commercial bottom longline trip in the eastern Gulf EEZ is 300 hooks. Under the current total possession limit of 1,000 hooks, if more than 250 hooks are lost, a vessel either has to fish with fewer than 750 hooks, get additional hooks from other vessels to maintain the maximum number of hooks in the water, or return to port. Removing the restriction on the total number of hooks kept on board is expected to make trips more economical by allowing fishing with the maximum number of hooks to continue without having to return to port or request additional hooks from other vessels. In addition, maintaining the current limit of 750 hooks rigged for fishing preserves the reductions in sea turtle interactions since the implementation of Amendment 31.

A total of 20 comments were received on the proposed rule for the framework action. Eleven comments were in support of the proposed rule and five comments disagreed with the proposed rule. Comments supporting the rule stated that removing the 1,000 hooks per vessel restriction would allow vessels to carry adequate replacement hooks, possibly increase net benefits, and ease the burden on law enforcement. Other comments that were outside the scope of the proposed rule and, therefore, are not addressed here, stated that longline fishing should be prohibited in the Gulf or regulated more strictly. Specific comments opposed to the framework action and the proposed rule are grouped as appropriate and summarized below, followed by NMFS' respective responses.

Comment 1: The hook restriction should not be removed. Instead the hook limit should be based on an estimate of hooks lost per day and the total trip length, or the total number of hooks should be increased to a higher defined level.

Response: NMFS disagrees that some form of the unrigged hook restriction should remain in place. It would be difficult to establish a hook limit based on an estimate of hooks lost per day and the total trip length because trip length can vary with every trip due to unexpected circumstances such as weather, vessel mechanics, or personnel issues. So although an estimate of hooks lost per day can be calculated from observer records, this average could not be accurately applied to each vessel at the beginning of each trip. The Council did consider two options for increasing the total number hooks allowed per vessel. However, the Council determined, and NMFS agrees, that those alternatives would increase the burden on law enforcement by requiring officers to count a greater number of unrigged hooks to verify compliance while providing no additional benefit to sea turtles because it is the number of hooks in the water that impacts the frequency of interactions.

Comment 2: Allowing an unlimited number of unrigged hooks will allow vessels to stay out longer and fish more, which could lead to overfishing and more interactions with protected species.

Response: NMFS disagrees that allowing an unlimited number of unrigged hooks on bottom longline vessels will lead to overfishing or more interactions with protected species. The management measures in place restrict the harvest of target species and preserve the reductions in sea turtle interactions since the implementation of Amendment 31. The species targeted by the eastern bottom longline component of the reef fish fishery in the Gulf EEZ are managed under the Individual Fishing Quota (IFQ) programs established in Amendments 26 and 29 to the FMP (71 FR 67447; November 22, 2006, and 74 FR 44732; August 31, 2009, respectively). Under the IFQ programs, harvest is strictly controlled and since the implementation of these programs landings of IFQ species have been constrained to the applicable annual commercial quotas. To limit interactions with protected sea turtles, bottom longline fishing in the eastern Gulf EEZ is restricted by an annual seasonal closure for the months of June through August, and vessels are still limited to 750 hooks rigged for fishing.

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

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

This final rule is considered a deregulatory action under Executive Order 13771.

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

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this rule would not have a significant adverse economic impact on a substantial number of small entities. The factual basis for this determination was published in the proposed rule and is not repeated here. No public comments were made related to the economic implications and potential impacts on small businesses. As a result, a final regulatory flexibility analysis was not required and none was prepared.

This rule is exempt from the requirement to delay the effectiveness of a final rule by 30 days after publication in the Federal Register, under 5 U.S.C. 553(d)(1), because the measure implemented by this final rule relieves a restriction on the regulated community. Specifically, this rule removes the restriction on the number of unrigged hooks that a commercial reef fish vessel with a bottom longline endorsement is allowed on board. This is expected to improve fishers' ability to maintain the maximum number of rigged hooks over the duration of a trip and to make trips more economical by allowing fishing with the maximum number of hooks to continue without having to return to port or request additional hooks from other vessels.

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

In June 2017, the Council voted to recommend maintaining for 2018-2020 the status quo quota levels of 5.33 million bu (288 million L) for the ocean quahog fishery, 3.40 million bu (181 million L) for the Atlantic surfclam fishery, and 100,000 Maine bu (3.52 million L) for the Maine ocean quahog fishery. As further discussed below, NMFS received six comments on the proposed rule (82 FR 58164) published on December 11, 2017. Additional detail on the Council's recommendations and background on the surfclam and ocean quahog specifications is provided in the proposed rule and not repeated here.

Tables 1 and 2 show quotas for 2018 and projected quotas for the 2019-2020 Atlantic surfclam and ocean quahog fishery. NMFS will publish a notice in the Federal Register before the 2019 and 2020 fishing years notifying the public of the final quota for each year.

The Atlantic surfclam and ocean quahog quotas are specified in “industry” bushels of 1.88 ft3 (53.24 L) per bushel, while the Maine ocean quahog quota is specified in Maine bushels of 1.24 ft3 (35.24 L) per bushel. Because Maine ocean quahogs are the same species as ocean quahogs, both fisheries are assessed under the same overfishing definition. When the two quota amounts (ocean quahog and Maine ocean quahog) are added, the total allowable harvest is below the level that would result in overfishing for the entire stock.

The Atlantic surfclam stock is not overfished, and overfishing is not occurring. This rule maintains the status quo surfclam quota of 3.40 million bu (181 million L) for 2018 and projects that same quota for 2019 and 2020 (see table 1).

The 2018 non-Maine quota for ocean quahog is the status quo quota of 5.33 million bu (288 million L).

The 2018 quota for Maine ocean quahogs is the status quo level of 100,000 Maine bu (3.52 million L). The quota represents the maximum allowable quota under the FMP. NMFS projects that these quota levels will be maintained for the 2019 and 2020 ocean quahog fisheries.

The minimum size limit has been suspended annually since 2005. Minimum size limit may not be suspended unless discard, catch, and biological sampling data indicate that 30 percent or less of the Atlantic surfclam resource have a shell length less than 4.75 inches (120 mm), and the overall reduced size is not attributable to harvest from beds where growth of the individual clams has been reduced because of density-dependent factors.

Commercial surfclam data for 2017 were analyzed to determine the percentage of surfclams that were smaller than the minimum size requirement. The analysis indicated that 10.4 percent of the overall commercial landings, to date, were composed of surfclams that were less than the 4.75-inch (120-mm) default minimum size. Based on the information available, the minimum size limit for Atlantic surfclams is suspended in the upcoming fishing year (January 1 through December 31, 2018). The Council will re-evaluate if the minimum size should be suspended for 2019 and 2020 prior to each of those fishing years. NMFS will notify the public if the minimum size is suspended for those fishing years.

We received six comments on the proposed rule; one from the general public and five from industry representatives. One comment from the public was not relevant to the rulemaking. All other comments are in support of the quotas and size suspension in the proposed rule.

Some comments received from industry expressed concern that an overfishing limit (OFL) for surfclams has not been specified. A reported OFL estimate for surfclams was considered highly uncertain, and deemed in the assessment report to be unreliable. Absolute estimates of fishing mortality rate or current stock size were not endorsed by collective scientists conducting the assessment or the assessment peer review panel, so no OFL was estimated.

Some comments from industry were also concerned that the lack of an OFL means that the Council was not able to develop an Allowable Biological Catch (ABC) for surfclam using its standard approach. The Council's Scientific and Statistical Committee recommended an ABC of 29,363 mt, which was adopted by the Council. This ABC is based on a commercial quota of 26,218 mt and 12 percent incidental mortality. This catch level has been sustained by the stock historically, and has prevented overfishing and kept the stock from becoming overfished.

This final rule maintains status quo quotas and the minimum surfclam size is suspended for 2018.

There are no changes from the proposed to final rule.

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the Assistant Administrator for Fisheries, NOAA, has determined that this rule is consistent with the Atlantic Surfclam and Ocean Quahog FMP, other provisions of the Magnuson-Stevens Act, and other applicable law.

This action does not introduce any new reporting, recordkeeping, or other compliance requirements. This rule does not duplicate, overlap, or conflict with other Federal rules.

This rule is exempt from the requirements of E.O. 12866.

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

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for this certification was published in the proposed rule and is not repeated here. No comments were received regarding this certification. As a result, a regulatory flexibility analysis was not required and none was prepared.

NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679. Regulations governing sideboard protections for GOA groundfish fisheries appear at subpart B of 50 CFR part 680.

The A season allowance of the 2018 Pacific cod total allowable catch (TAC) apportioned to vessels using pot gear in the Western Regulatory Area of the GOA is 1,092 metric tons (mt), as established by the final 2017 and 2018 harvest specifications for groundfish of the GOA (82 FR 12032, February 27, 2017) and inseason adjustment (82 FR 60327, December 20, 2017).

In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator) has determined that the A season allowance of the 2018 Pacific cod TAC apportioned to vessels using pot gear in the Western Regulatory Area of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 1,082 mt and is setting aside the remaining 10 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for Pacific cod by vessels using pot gear in the Western Regulatory Area of the GOA. After the effective date of this closure the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the directed fishing closure of Pacific cod by vessels using pot gear in the Western Regulatory Area of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of January 31, 2018.

The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

This action is required by § 679.20 and is exempt from review under Executive Order 12866.