Federal Register Vol. 83, No.36,

Federal Register Volume 83, Issue 36 (February 22, 2018)

Page Range7593-7948
FR Document

83_FR_36
Current View
Page and SubjectPDF
83 FR 7777 - Sunshine Act MeetingPDF
83 FR 7702 - Office of Postsecondary Education; Solicitation of Third-Party Comments Concerning the Performance of Accrediting AgenciesPDF
83 FR 7710 - Response to June 1, 2016 Clean Air Act Section 126(b) Petition From ConnecticutPDF
83 FR 7846 - Hino Motors, Ltd., Receipt of Petition for Decision of Inconsequential NoncompliancePDF
83 FR 7847 - General Motors, LLC, Grant of Petition for Decision of Inconsequential NoncompliancePDF
83 FR 7719 - Proposed Information Collection Request; Comment Request; National Fish Program (Formerly Referred to as the National Listing of Fish Advisories) (Renewal)PDF
83 FR 7776 - Request for Public Comment on Proposed Revision of NIJ Standard 0101.06, Ballistic Resistance of Body ArmorPDF
83 FR 7776 - Request for Public Comment on Proposed Specification Threat Levels and Associated Ammunition To Test Equipment Intended To Protect U.S. Law Enforcement Against Handguns and RiflesPDF
83 FR 7616 - Methyl-alpha-D-mannopyranoside (Alpha Methyl Mannoside); Exemption From the Requirement of a TolerancePDF
83 FR 7655 - Polyethylene Terephthalate Resin From Brazil, Indonesia, the Republic of Korea, Pakistan, and Taiwan: Postponement of Preliminary Determinations of Antidumping Duty InvestigationsPDF
83 FR 7750 - National Institute of Mental Health; Notice of Closed MeetingsPDF
83 FR 7749 - National Institute of Mental Health; Notice of Closed MeetingsPDF
83 FR 7750 - National Institute of General Medical Sciences; Notice of Closed MeetingPDF
83 FR 7749 - Center for Scientific Review; Notice of Closed MeetingPDF
83 FR 7593 - Energy Labeling RulePDF
83 FR 7776 - Notice of Lodging of Proposed Consent Decree Under the Clean Water ActPDF
83 FR 7644 - Safety Zone; Pensacola Bay, Pensacola, FLPDF
83 FR 7762 - 30-Day Notice of Proposed Information Collection: Public Housing Agencies Service Areas Solicitation of Comments: WithdrawalPDF
83 FR 7835 - Public Notice for Waiver of Aeronautical Land Use Assurance; Great Falls International Airport, Great Falls, MTPDF
83 FR 7832 - Public Notice for Waiver of Aeronautical Land Use Assurance; Great Falls International Airport, Great Falls, MTPDF
83 FR 7833 - Notice of Intent of Waiver With Respect to Land; Akron-Canton Airport, North Canton, OHPDF
83 FR 7721 - Privacy Act of 1974; System of Records.PDF
83 FR 7725 - Next Meeting of the North American Numbering CouncilPDF
83 FR 7636 - Coastal Migratory Pelagic Resources of the Gulf of Mexico and Atlantic Region; 2017-2018 Commercial Hook-and-Line Closure for King Mackerel in the Gulf of Mexico Southern ZonePDF
83 FR 7828 - Public Availability of Social Security Administration Fiscal Year (FY) 2016 Service Contract InventoryPDF
83 FR 7703 - Notice of Technical ConferencePDF
83 FR 7707 - Zeeland Farm Services, Inc.; Notice of Amended Petition for Declaratory OrderPDF
83 FR 7709 - Northern Natural Gas Company; Notice of Request Under Blanket AuthorizationPDF
83 FR 7708 - Combined Notice of Filings #1PDF
83 FR 7829 - Academy Bus, LLC and Franmar Leasing LLC-Purchase of Certain Assets of Daniel's Charters & Tours LLCPDF
83 FR 7720 - Agency Information Collection Activities: Notice of Submission for OMB Review; Comment RequestPDF
83 FR 7762 - Notice of Public Meeting for the Southeast Oregon Resource Advisory CouncilPDF
83 FR 7764 - Notice of Intent To Repatriate Cultural Items: Field Museum of Natural History, Chicago, ILPDF
83 FR 7768 - Notice of Intent To Repatriate Cultural Items: New York State Museum, Albany, NYPDF
83 FR 7771 - Notice of Intent To Repatriate Cultural Items: U.S. Department of the Interior, National Park Service, Kaloko-Honokōhau National Historical Park, HIPDF
83 FR 7767 - Notice of Inventory Completion: U.S. Fish and Wildlife Service, Alaska Region, Anchorage, AKPDF
83 FR 7766 - Notice of Intent To Repatriate Cultural Items: United States Army Corps of Engineers, Tulsa District, Tulsa, OKPDF
83 FR 7765 - Notice of Inventory Completion: U.S. Fish and Wildlife Service, Alaska Region, Anchorage, AKPDF
83 FR 7763 - Notice of Intent To Repatriate Cultural Items: New Jersey State Museum, Trenton, NJPDF
83 FR 7764 - Notice of Inventory Completion: History Colorado, Formerly Colorado Historical Society, Denver, COPDF
83 FR 7773 - Notice of Inventory Completion: University of North Carolina at Chapel Hill, Research Laboratories of Archaeology, Chapel Hill, NCPDF
83 FR 7769 - Notice of Intent To Repatriate Cultural Items: Mount Holyoke College Art Museum, South Hadley, MAPDF
83 FR 7770 - Notice of Inventory Completion: U.S. Department of the Interior, Bureau of Land Management, Alaska State Office, Anchorage, AKPDF
83 FR 7772 - Notice of Inventory Completion: U.S. Department of the Interior, Bureau of Land Management, Alaska State Office, Anchorage, AKPDF
83 FR 7647 - Safety Zones; Recurring Events in Captain of the Port Duluth ZonePDF
83 FR 7781 - The Vinyl Chloride Standard; Extension of the Office of Management and Budget's (OMB) Approval of Information Collection (Paperwork) RequirementsPDF
83 FR 7849 - Notice of Open Public HearingPDF
83 FR 7833 - Petition for Exemption; Summary of Petition Received; Donaldson Aerospace & DefensePDF
83 FR 7832 - Petition for Exemption; Summary of Petition Received; Corvus Airlines, Inc.PDF
83 FR 7835 - Transportation Asset Management Plan Development Processes Certification and Recertification Guidance; Transportation Asset Management Plan Consistency Determination Interim GuidancePDF
83 FR 7839 - Fixing America's Surface Transportation (FAST) Act; Equal Access for Over-the-Road Buses GuidancePDF
83 FR 7700 - Publication of Fiscal Year 2016 Service Contract InventoryPDF
83 FR 7680 - Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Astoria Waterfront Bridge Replacement ProjectPDF
83 FR 7744 - Joint Meeting of the Blood Products Advisory Committee and the Microbiology Devices Panel of the Medical Devices Advisory Committee; Notice of MeetingPDF
83 FR 7745 - Agency Information Collection Activities; Proposed Collection; Comment Request; Guidance for Industry and Food and Drug Administration Staff-Class II Special Controls Guidance Document: Automated Blood Cell Separator Device Operating by Centrifugal or Filtration PrinciplePDF
83 FR 7732 - Determination of Regulatory Review Period for Purposes of Patent Extension; ESBRIETPDF
83 FR 7655 - Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental To Site Characterization Surveys Off of New YorkPDF
83 FR 7734 - Determination of Regulatory Review Period for Purposes of Patent Extension; LYMPHOSEEKPDF
83 FR 7735 - Agency Information Collection Activities; Proposed Collection; Comment Request; New Animal Drugs for Investigational UsePDF
83 FR 7728 - Agency Information Collection Activities; Proposed Collection; Comment Request; Medical Device Labeling RegulationsPDF
83 FR 7738 - Parke-Davis, Subsidiary of Pfizer, Inc. et al.; Withdraw of Approval of 38 New Drug Applications and 43 Abbreviated New Drug ApplicationsPDF
83 FR 7747 - Determination of Regulatory Review Period for Purposes of Patent Extension; OFEVPDF
83 FR 7740 - Agency Information Collection Activities; Proposed Collection; Comment Request; Medical Device Recall AuthorityPDF
83 FR 7742 - Agency Information Collection Activities; Proposed Collection; Comment Request; Administrative Practices and Procedures; Formal Evidentiary Public HearingPDF
83 FR 7727 - Peripheral and Central Nervous System Drugs Advisory Committee; Notice of Meeting; Establishment of a Public Docket; Request for CommentsPDF
83 FR 7752 - Accreditation and Approval of Saybolt LP (Clarksville, IN) as a Commercial GaugerPDF
83 FR 7751 - Accreditation and Approval of Saybolt LP (LaPlace, LA) as a Commercial LaboratoryPDF
83 FR 7841 - Environmental Impact Statement; Henry County, VirginiaPDF
83 FR 7650 - Fisheries Off West Coast States; West Coast Salmon Fisheries; Management Measures To Limit Fishery Impacts on Sacramento River Winter Chinook SalmonPDF
83 FR 7829 - Notice of Public Meeting of the International Telecommunication Advisory Committee and Preparations for Upcoming International Telecommunications MeetingsPDF
83 FR 7829 - Meeting of the United States-Bahrain Joint Forum on Environmental Cooperation and Request for Comments on the Meeting Agenda and the 2017-2021 Work ProgramPDF
83 FR 7789 - International Product Change-Global Expedited Package Services-Non-Published RatesPDF
83 FR 7774 - Ripe Olives From Spain; Scheduling of the Final Phase of Countervailing Duty and Antidumping Duty InvestigationsPDF
83 FR 7793 - Self-Regulatory Organizations; Chicago Stock Exchange, Inc.; Order Setting Aside Action by Delegated Authority and Disapproving a Proposed Rule Change, as Modified by Amendments No. 1 and No. 2, Regarding the Acquisition of CHX Holdings, Inc. by North America Casin Holdings, Inc.PDF
83 FR 7789 - Advisory Committee on Reactor Safeguards (Acrs) Meeting of the Acrs Subcommittee on Planning and Procedures; Notice of MeetingPDF
83 FR 7638 - Special Conditions: SWS Certification Services, Ltd., Boeing Model 747-8 Airplanes; Installation of an Overhead Passenger-Sleeping Compartment in the Main DeckPDF
83 FR 7849 - Agency Information Collection Activity: Application for Reimbursement of Licensing or Certification Test FeesPDF
83 FR 7849 - Agency Information Collection Under OMB Review: Application for Service-Disabled Veterans InsurancePDF
83 FR 7726 - Announcement of Intent To Issue One OPDIV-Initiated Supplement to BCFS Health and Human Services Under the Standing Announcement for Residential (Shelter) Services for Unaccompanied Children, HHS-2017-ACF-ORR-ZU-1132PDF
83 FR 7608 - Technical Amendment to List of User Fee Airports: Name Changes of Several Airports and the Addition of Five AirportsPDF
83 FR 7761 - Agency Information Collection Activities; Revision of a Currently Approved Collection: Notice of Appeal of Decision Under Section 210 or 245APDF
83 FR 7842 - Notice of Funding Opportunity for Law Enforcement Strategies for Reducing Trespassing Pilot Grant ProgramPDF
83 FR 7699 - Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Gull and Climate Monitoring/Research in Glacier Bay National Park, AlaskaPDF
83 FR 7752 - Agency Information Collection Activities: Proposed Collection; Comment Request; Transcript Request FormPDF
83 FR 7756 - National Advisory CouncilPDF
83 FR 7760 - Final Flood Hazard DeterminationsPDF
83 FR 7753 - Proposed Flood Hazard DeterminationsPDF
83 FR 7757 - Changes in Flood Hazard DeterminationsPDF
83 FR 7782 - Standard on Confined Spaces in Construction; Extension of the Office of Management and Budget's (OMB) Approval of Information Collection (Paperwork) RequirementsPDF
83 FR 7827 - Investment Company Act Release No. 33005A; File No. 812-14808 Morningstar Funds Trust, et al.; Notice of ApplicationPDF
83 FR 7643 - Guides for the Nursery IndustryPDF
83 FR 7812 - Self-Regulatory Organizations; The Nasdaq Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Rule 7039 To Modify Pricing for the Nasdaq Last Sale Data Product and To Make Other Related Changes to Nasdaq RulesPDF
83 FR 7824 - Self-Regulatory Organizations; MIAX PEARL LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Rule 517A, Aggregate Risk Manager for EEMs (“ARM-E”), and Rule 517B, Aggregate Risk Manager for Market Makers (“ARM-M”)PDF
83 FR 7820 - Self-Regulatory Organizations; MIAX PEARL, LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Expand the Short Term Option Series ProgramPDF
83 FR 7790 - Self-Regulatory Organizations: Notice of Filing and Immediate Effectiveness of a Proposed Rule Change by Miami International Securities Exchange, LLC To Expand the Short Term Option Series ProgramPDF
83 FR 7701 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; Program for International Student Assessment (PISA 2018) Main StudyPDF
83 FR 7789 - Product Change-Priority Mail and First-Class Package Service Negotiated Service AgreementPDF
83 FR 7831 - 2018 Special 301 Review: Identification of Countries Under Section 182 of the Trade Act of 194; Request for Public Comment and Notice of a Public Hearing; CorrectionPDF
83 FR 7701 - Agency Information Collection Activities; Comment Request; Migrant Student Information Exchange User Application FormPDF
83 FR 7788 - Advisory Committee on Reactor Safeguards (ACRS); Meeting of the ACRS Subcommittee on Metallurgy and Reactor Fuels; Notice of MeetingPDF
83 FR 7750 - Predictive Models for Acute Oral Systemic Toxicity; Notice of Meeting; Registration InformationPDF
83 FR 7749 - National Institute on Aging; Notice of MeetingPDF
83 FR 7709 - The City of Alexandria, Louisiana v. EnLink LIG, LLC; Notice of ComplaintPDF
83 FR 7707 - Goose River Hydro, Inc.; Notice of Application Tendered for Filing With the Commission and Soliciting Additional Study RequestsPDF
83 FR 7779 - Petition for Modification of Application of Existing Mandatory Safety StandardPDF
83 FR 7778 - Agency Information Collection Activities; Submission for OMB Review; Comment Request, Homeless Veterans Reintegration Program (HVRP) Impact Evaluation, New CollectionPDF
83 FR 7654 - Availability of a Final Environmental Assessment and Finding of No Significant Impact for Release of Aceria drabae for Biological Control of Hoary CressPDF
83 FR 7777 - Advisory Committee on Veterans' Employment, Training and Employer Outreach (ACVETEO): MeetingPDF
83 FR 7654 - Agenda and Notice of Public Meeting of the Rhode Island Advisory CommitteePDF
83 FR 7725 - Proposed Agency Information Collection Activities; Comment RequestPDF
83 FR 7619 - Cable Television Technical and Operational StandardsPDF
83 FR 7723 - Information Collection Being Submitted to the Office of Management and BudgetPDF
83 FR 7614 - Approval of Arizona Air Plan Revisions, Arizona Department of Environmental QualityPDF
83 FR 7610 - Approval and Promulgation of Air Quality Implementation Plans; Virginia; Revisions To Implement the Revocation of the 1997 Ozone NAAQSPDF
83 FR 7852 - Restoring Internet FreedomPDF
83 FR 7631 - General Services Administration Acquisition Regulation; Unenforceable Commercial Supplier Agreement TermsPDF
83 FR 7924 - Waste Prevention, Production Subject to Royalties, and Resource Conservation; Rescission or Revision of Certain RequirementsPDF

Issue

83 36 Thursday, February 22, 2018 Contents Agriculture Agriculture Department See

Animal and Plant Health Inspection Service

Animal Animal and Plant Health Inspection Service NOTICES Environmental Assessments; Availability, etc.: Release of Aceria drabae for Biological Control of Hoary Cress, 7654 2018-03552 Children Children and Families Administration NOTICES Funding Announcements: BCFS Health and Human Services, 7726-7727 2018-03583 Civil Rights Civil Rights Commission NOTICES Meetings: Rhode Island Advisory Committee, 7654-7655 2018-03550 Coast Guard Coast Guard PROPOSED RULES Safety Zones: Pensacola Bay, Pensacola, FL, 7644-7647 2018-03663 Recurring Events in Captain of the Port Duluth Zone, 7647-7650 2018-03624 Commerce Commerce Department See

International Trade Administration

See

National Oceanic and Atmospheric Administration

Court Court Services and Offender Supervision Agency for the District of Columbia NOTICES Fiscal Year 2016 Service Contract Inventory, 7700-7701 2018-03616 Education Department Education Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Migrant Student Information Exchange User Application Form, 7701 2018-03561 Program for International Student Assessment Main Study, 7701-7702 2018-03564 Requests for Comments: Performance of Accrediting Agencies, 7702-7703 2018-03686 Energy Department Energy Department See

Federal Energy Regulatory Commission

Environmental Protection Environmental Protection Agency RULES Air Quality State Implementation Plans; Approvals and Promulgations: Arizona Air Plan Revisions, Arizona Department of Environmental Quality, 7614-7616 2018-03526 Virginia; Revisions to Implement the Revocation of the 1997 Ozone NAAQS, 7610-7614 2018-03524 Pesticide Tolerances; Exemptions: Methyl-alpha-D-mannopyranoside (Alpha Methyl Mannoside), 7616-7619 2018-03671 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: National Fish Program (Formerly Referred to as the National Listing of Fish Advisories) (Renewal), 7719 2018-03676 Response to June 1, 2016 Clean Air Act Petition from Connecticut, 7710-7719 2018-03679 Equal Equal Employment Opportunity Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 7720-7721 2018-03643 Federal Aviation Federal Aviation Administration PROPOSED RULES Special Conditions: SWS Certification Services, Ltd., Boeing Model 747-8 Airplanes; Installation of Overhead Passenger-Sleeping Compartment in Main Deck, 7638-7643 2018-03587 NOTICES Exemption Petitions; Summaries: Corvus Airlines, Inc., 7832-7833 2018-03619 Donaldson Aerospace and Defense, 7833 2018-03620 Intent of Waiver with Respect to Land: Akron-Canton Airport, North Canton, OH, 7833-7834 2018-03654 Waiver of Aeronautical Land Use Assurance: Great Falls International Airport, Great Falls, MT, 7832, 7835 2018-03656 2018-03658 Federal Communications Federal Communications Commission RULES Cable Television Technical and Operational Standards, 7619-7631 2018-03547 Restoring Internet Freedom, 7852-7922 2018-03464 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 7723-7724 2018-03546 Meetings: North American Numbering Council, 7725 2018-03652 Privacy Act; Systems of Records, 7721-7723 2018-03653 Federal Emergency Federal Emergency Management Agency NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Transcript Request Form, 7752-7753 2018-03577 Flood Hazard Determinations, 7760-7761 2018-03575 Flood Hazard Determinations; Changes, 7757-7760 2018-03573 Flood Hazard Determinations; Proposals, 7753-7756 2018-03574 Requests for Nominations: National Advisory Council, 7756-7757 2018-03576 Federal Energy Federal Energy Regulatory Commission NOTICES Combined Filings, 7708-7709 2018-03645 Complaints: City of Alexandria, Louisiana v. EnLink LIG, LLC, 7709 2018-03557 Declaratory Orders; Petitions: Zeeland Farm Services, Inc.; Amendment, 7707 2018-03647 Hydroelectric Applications: Goose River Hydro, Inc., 7707-7708 2018-03556 Meetings: Participation of Distributed Energy Resource Aggregations in Markets Operated by Regional Transmission Organizations and Independent System Operators, Distributed Energy Resources—Technical Considerations for the Bulk Power System; Technical Conference, 7703-7707 2018-03649 Requests under Blanket Authorizations: Northern Natural Gas Co., 7709-7710 2018-03646 Federal Highway Federal Highway Administration NOTICES Environmental Impact Statements; Availability, etc.: Henry County, Virginia, 7841-7842 2018-03597 Fixing America's Surface Transportation Act: Equal Access for Over-the-Road Buses Guidance, 7839-7841 2018-03617 Guidance: Transportation Asset Management Plan Development Processes Certification and Recertification Guidance; Transportation Asset Management Plan Consistency Determination Interim Guidance, 7835-7839 2018-03618 Federal Railroad Federal Railroad Administration NOTICES Funding Opportunities: Law Enforcement Strategies for Reducing Trespassing Pilot Grant Program, 7842-7845 2018-03579 Federal Reserve Federal Reserve System NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 7725-7726 2018-03549 Federal Trade Federal Trade Commission RULES Energy Labeling Rule, 7593-7608 2018-03665 PROPOSED RULES Guides for the Nursery Industry, 7643-7644 2018-03569 Food and Drug Food and Drug Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Administrative Practices and Procedures; Formal Evidentiary Public Hearing, 7742-7744 2018-03604 Guidance for Industry and Food and Drug Administration Staff—Class II Special Controls Guidance Document: Automated Blood Cell Separator Device Operating by Centrifugal or Filtration Principle, 7745-7747 2018-03613 Medical Device Labeling Regulations, 7728-7732 2018-03608 Medical Device Recall Authority, 7740-7742 2018-03605 New Animal Drugs for Investigational Use, 7735-7738 2018-03609 Determinations of Regulatory Review Periods for Purposes of Patent Extensions: ESBRIET, 7732-7733 2018-03612 LYMPHOSEEK, 7734-7735 2018-03610 OFEV, 7747-7749 2018-03606 Meetings: Blood Products Advisory Committee and the Microbiology Devices Panel of the Medical Devices Advisory Committee, 7744-7745 2018-03614 Peripheral and Central Nervous System Drugs Advisory Committee, 7727-7728 2018-03603 New Drug Applications: Parke-Davis, Subsidiary of Pfizer, Inc. et al.; Withdraw of Approval, 7738-7740 2018-03607 General Services General Services Administration RULES Acquisition Regulations: Unenforceable Commercial Supplier Agreement Terms, 7631-7636 2018-03350 Health and Human Health and Human Services Department See

Children and Families Administration

See

Food and Drug Administration

See

National Institutes of Health

Homeland Homeland Security Department See

Coast Guard

See

Federal Emergency Management Agency

See

U.S. Citizenship and Immigration Services

See

U.S. Customs and Border Protection

Housing Housing and Urban Development Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Public Housing Agencies Service Areas Solicitation of Comments: Withdrawal, 7762 2018-03661 Interior Interior Department See

Land Management Bureau

See

National Park Service

International Trade Adm International Trade Administration NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Polyethylene Terephthalate Resin from Brazil, Indonesia, the Republic of Korea, Pakistan, and Taiwan, 7655 2018-03670 International Trade Com International Trade Commission NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Ripe Olives from Spain, 7774-7776 2018-03591 Justice Department Justice Department See

Justice Programs Office

See

Parole Commission

NOTICES Proposed Consent Decrees: Clean Water Act, 7776 2018-03664
Justice Programs Justice Programs Office NOTICES Proposed Revision of NIJ Standard 0101.06, Ballistic Resistance of Body Armor, 7776-7777 2018-03674 Threat Levels and Associated Ammunition to Test Equipment Intended to Protect U.S. Law Enforcement Against Handguns and Rifles, 7776 2018-03672 Labor Department Labor Department See

Mine Safety and Health Administration

See

Occupational Safety and Health Administration

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Homeless Veterans Reintegration Program Impact Evaluation, 7778-7779 2018-03553 Meetings: Advisory Committee on Veterans' Employment, Training and Employer Outreach, 7777-7778 2018-03551
Land Land Management Bureau PROPOSED RULES Waste Prevention, Production Subject to Royalties, and Resource Conservation: Rescission or Revision of Certain Requirements, 7924-7948 2018-03144 NOTICES Meetings: Southeast Oregon Resource Advisory Council, 7762-7763 2018-03642 Mine Mine Safety and Health Administration NOTICES Petitions for Modifications: Application of Existing Mandatory Safety Standard, 7779-7780 2018-03555 National Highway National Highway Traffic Safety Administration NOTICES Petitions for Decisions of Inconsequential Noncompliance: General Motors, LLC, 7847-7849 2018-03677 Hino Motors, Ltd., 7846-7847 2018-03678 National Institute National Institutes of Health NOTICES Meetings: Center for Scientific Review, 7749 2018-03666 National Institute of General Medical Sciences, 7750 2018-03667 National Institute of Mental Health, 7749-7750 2018-03668 2018-03669 National Institute on Aging, 7749 2018-03558 Predictive Models for Acute Oral Systemic Toxicity, 7750-7751 2018-03559 National Oceanic National Oceanic and Atmospheric Administration RULES Coastal Migratory Pelagic Resources of the Gulf of Mexico and Atlantic Region: 2017-2018 Commercial Hook-and-Line Closure for King Mackerel in Gulf of Mexico Southern Zone, 7636-7637 2018-03651 PROPOSED RULES Fisheries Off West Coast States: West Coast Salmon Fisheries; Management Measures to Limit Fishery Impacts on Sacramento River Winter Chinook Salmon, 7650-7653 2018-03596 NOTICES Takes of Marine Mammals Incidental to Specified Activities: Site Characterization Surveys off of New York, 7655-7680 2018-03611 Takes of Marine Mammals: Gull and Climate Monitoring/Research in Glacier Bay National Park, AK, 7699-7700 2018-03578 Incidental to Astoria Waterfront Bridge Replacement Project, 7680-7699 2018-03615 National Park National Park Service NOTICES Inventory Completions: History Colorado, Formerly Colorado Historical Society, Denver, CO, 7764-7765 2018-03632 U.S. Department of the Interior, Bureau of Land Management, Alaska State Office, Anchorage, AK, 2018-03628 7770-7772 2018-03629 U.S. Fish and Wildlife Service, Alaska Region, Anchorage, AK, 7765-7768 2018-03634 2018-03636 University of North Carolina at Chapel Hill, Research Laboratories of Archaeology, Chapel Hill, NC, 7773-7774 2018-03631 Repatriation of Cultural Items: Field Museum of Natural History, Chicago, IL, 7764 2018-03639 Mount Holyoke College Art Museum, South Hadley, MA, 7769-7770 2018-03630 New Jersey State Museum, Trenton, NJ, 7763-7764 2018-03633 New York State Museum, Albany, NY, 7768-7769 2018-03638 U.S. Department of the Interior, National Park Service, Kaloko-Honokohau National Historical Park, HI, 7771-7772 2018-03637 United States Army Corps of Engineers, Tulsa District, Tulsa, OK, 7766-7767 2018-03635 Nuclear Regulatory Nuclear Regulatory Commission NOTICES Meetings: Advisory Committee on Reactor Safeguards Subcommittee on Metallurgy and Reactor Fuels, 7788-7789 2018-03560 Advisory Committee on Reactor Safeguards Subcommittee on Planning and Procedures, 7789 2018-03588 Occupational Safety Health Adm Occupational Safety and Health Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Standard on Confined Spaces in Construction, 7782-7788 2018-03571 The Vinyl Chloride Standard, 7781-7782 2018-03623 Parole Parole Commission NOTICES Meetings; Sunshine Act, 7777 2018-03706 Postal Service Postal Service NOTICES Product Changes: Global Expedited Package Services—Non-Published Rates, 7789 2018-03592 Priority Mail and First-Class Package Service Negotiated Service Agreement, 7789-7790 2018-03563 Securities Securities and Exchange Commission NOTICES Applications: Morningstar Funds Trust, et al., 7827-7828 2018-03570 Self-Regulatory Organizations; Proposed Rule Changes: Chicago Stock Exchange, Inc., 7793-7811 2018-03589 Miami International Securities Exchange, LLC, 7790-7793 2018-03565 MIAX PEARL LLC, 7820-7824 2018-03566 The Nasdaq Stock Market LLC, 7812-7820 2018-03568 Social Social Security Administration NOTICES Fiscal Year 2016 Service Contract Inventory, 7828 2018-03650 State Department State Department NOTICES Meetings: International Telecommunication Advisory Committee, 7829 2018-03594 United States-Bahrain Joint Forum on Environmental Cooperation; Meeting Agenda and 2017-2021 Work Program, 7829 2018-03593 Surface Transportation Surface Transportation Board NOTICES Purchases of Certain Assets: Academy Bus, LLC and Franmar Leasing LLC; Daniel's Charters and Tours LLC, 7829-7831 2018-03644 Trade Representative Trade Representative, Office of United States NOTICES Public Hearings: 2018 Special 301 Review: Identification of Countries Under Section 182 of the Trade Act of 194, 7831-7832 2018-03562 Transportation Department Transportation Department See

Federal Aviation Administration

See

Federal Highway Administration

See

Federal Railroad Administration

See

National Highway Traffic Safety Administration

U.S. Citizenship U.S. Citizenship and Immigration Services NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Notice of Appeal of Decision Under Section 210 or 245A, 7761-7762 2018-03580 Customs U.S. Customs and Border Protection RULES Technical Amendment to List of User Fee Airports: Name Changes of Several Airports and the Addition of Five Airports, 7608-7610 2018-03581 NOTICES Commercial Laboratories; Accreditation and Approvals: Saybolt LP (Clarksville, IN), 7752 2018-03602 Saybolt LP (LaPlace, LA), 7751-7752 2018-03601 U.S. China U.S.-China Economic and Security Review Commission NOTICES Public Hearings, 7849 2018-03621 Veteran Affairs Veterans Affairs Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Application for Reimbursement of Licensing or Certification Test Fees, 7849-7850 2018-03586 Application for Service-Disabled Veterans Insurance, 7849 2018-03584 Separate Parts In This Issue Part II Federal Communications Commission, 7852-7922 2018-03464 Part III Interior Department, Land Management Bureau, 7924-7948 2018-03144 Reader Aids

Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.

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83 36 Thursday, February 22, 2018 Rules and Regulations FEDERAL TRADE COMMISSION 16 CFR Part 305 RIN 3084-AB15 Energy Labeling Rule AGENCY:

Federal Trade Commission (“FTC” or “Commission”).

ACTION:

Final rule.

SUMMARY:

The Commission amends the Energy Labeling Rule (“Rule”) by updating ranges of comparability and unit energy cost figures on EnergyGuide labels for dishwashers, furnaces, room air conditioners, and pool heaters. The Commission also sets a compliance date of October 1, 2019 for EnergyGuide labels on room air conditioner boxes and makes several minor clarifications and corrections to the Rule.

DATES:

The amendments are effective May 23, 2018.

ADDRESSES:

Relevant portions of the record of this proceeding, including this document, are available at http://www.ftc.gov.

FOR FURTHER INFORMATION CONTACT:

Hampton Newsome, (202) 326-2889, Attorney, Division of Enforcement, Bureau of Consumer Protection, Federal Trade Commission, Room CC-9528, 600 Pennsylvania Avenue NW, Washington, DC 20580.

SUPPLEMENTARY INFORMATION:

I. Background

The Commission issued the Energy Labeling Rule (“Rule”) in 1979,1 pursuant to the Energy Policy and Conservation Act of 1975 (EPCA).2 The Rule requires energy labeling for major home appliances and other consumer products to help consumers compare competing models. It also contains labeling requirements for refrigerators, refrigerator-freezers, freezers, dishwashers, water heaters, clothes washers, room air conditioners, furnaces, central air conditioners, heat pumps, plumbing products, lighting products, ceiling fans, and televisions.

1 44 FR 66466 (Nov. 19, 1979).

2 42 U.S.C. 6294. EPCA also requires the Department of Energy (DOE) to develop test procedures that measure how much energy appliances use, and to determine the representative average cost a consumer pays for different types of energy.

The Rule requires manufacturers to attach yellow EnergyGuide labels to many covered products and prohibits retailers from removing these labels or rendering them illegible. In addition, it directs sellers, including retailers, to post label information on websites and in paper catalogs from which consumers can order products. EnergyGuide labels for most covered products contain three key disclosures: Estimated annual energy cost, a product's energy consumption or energy efficiency rating as determined by DOE test procedures, and a comparability range displaying the highest and lowest energy costs or efficiency ratings for all similar models. For cost calculations, the Rule specifies national average costs for applicable energy sources (e.g., electricity, natural gas, oil) as calculated by DOE. Under the Rule, the Commission periodically updates comparability range and annual energy cost information based on manufacturer data submitted pursuant to the Rule's reporting requirements. The Rule also sets a five-year schedule for updating comparability range and annual energy cost information.3

3 16 CFR 305.10.

II. Proposed Amendments

In a November 9, 2017 Notice of Proposed Rulemaking (NPRM), the Commission sought comment on proposed updates to the Rule's comparability ranges and amendments to set a compliance date for EnergyGuide labels on room air conditioner boxes. The Commission received 10 comments in response.4 After reviewing the comments, the Commission now issues final amendments addressing these issues.

4See 82 FR 52024. The comments received in response to the NPRM are here: https://www.ftc.gov/policy/public-comments/2017/12/initiative-730. The comments included: Air-Conditioning, Heating, and Refrigeration Institute (AHRI) (#00006); American Public Gas Association (APGA) (#00007); National Electrical Manufacturers Association (NEMA) (#00008); Association of Home Appliance Manufacturers (AHAM) (#00009); Earthjustice (“Joint Commenters”) (#00010); Grear (#00011); Kremer (#00005); O'Hare (#00004); Castillo (#00003); and Chambers (#00002).

III. Final Amendments A. Comparability Range and Energy Cost Revisions

Background: In the NPRM, the Commission proposed revisions to the comparability range and energy cost information for dishwashers, furnaces, pool heaters, and room air conditioners.5 The comparability ranges (i.e., scales) show the highest and lowest energy costs or energy efficiency ratings of models similar to the labeled product. The Commission derives these ranges from annual data submitted by manufacturers. In addition, the Commission proposed updating the average energy cost figures manufacturers must use to calculate a model's estimated energy cost for the label based on national average cost figures published by DOE.6 The Commission also proposed amending the energy cost tables in Appendix K to clarify the cost applicable to various covered products.7 To effect these changes, the Commission proposed amending the applicable tables in the Rule's appendices. Under the Rule (§ 305.10), manufacturers must begin using this new information on product labels within 90 days after publication of the updated tables.

5 16 CFR 305.10. This document also updates the sample labels in the Rule's appendices to reflect the new range and cost information and to include the minor label content changes discussed in this document.

6 82 FR 21213 (May 5, 2017) (DOE notice for “Representative Average Unit Costs of Energy”).

7 Applicable energy cost figures for ceiling fans, lighting products, and televisions appear in §§ 305.13 (effective September 17, 2018), 305.15, and 305.17 respectively.

The Commission did not propose amending the range and cost information for EnergyGuide labels for refrigerators, freezers, clothes washers, water heaters, central air conditioners, and televisions because the Commission has recently updated label information for these products.8 The Commission explained in the NPRM that changing labels for these products so soon would unnecessarily burden manufacturers and potentially confuse consumers by introducing new label information in the marketplace.9

8See 81 FR 63634 (Sept. 15, 2016) (new range information for refrigerators and freezers, water heaters, and central air conditioners effective June 12, 2017); 81 FR 7201 (Feb. 11, 2016) (new ranges for clothes washers effective May 11, 2016); and 80 FR 16259 (Mar. 27, 2015) (updated ranges for televisions effective July 15, 2015).

9 The Commission followed a similar approach during the last cycle of range and cost updates. See 78 FR 1779 (Jan. 9, 2013).

Comments: Though commenters generally supported the updated ranges, AHRI and O'Hare recommended minor changes. Specifically, AHRI noted that the new range for oil-fired boilers should reflect several models rated at an Annual Fuel Utilization Efficiency (AFUE) of 82.0. O'Hare suggested the upper end of the pool heater thermal efficiency range on the sample label be 96.0 to reflect the amended table in Appendix J1.

In addition, several energy efficiency and consumer organizations (the “Joint Commenters”) recommended new ranges for clothes washers. They explained that new DOE standards, which become effective in January 2018, will significantly change the lower end of the ranges for these products (for both standard and compact capacity categories) by removing many existing lower efficiency models from the market. In the Joint Commenters' view, delay in updating the ranges will result in ranges that include products no longer manufactured, thus misleading consumers about the efficiency and operating costs of models in production. The commenters also argued that such inaccurate ranges would violate EPCA's directive (see 42 U.S.C. 6294(c)(1)(B)) to provide range information for “covered products to which the rule applies.”

Discussion: The Commission amends the Rule to implement the updates proposed in the NPRM and the minor changes suggested by the commenters. The Commission, however, does not update the clothes washer ranges at this time. Because the Commission updated the range data for clothes washer labels in 2016 (81 FR 7201 (Feb. 11, 2016)), it is reluctant to change the labels again after such a short interval because it would create inconsistent labels for consumers during the transition and unnecessarily burden manufacturers. However, the Commission will review new clothes washer data in light of the new DOE 2018 standards and consider whether to propose updating the ranges.

The Commission does not agree with the Joint Commenters that the current ranges violate EPCA's directive to provide range information for “covered products to which the rule applies.” The Commission interprets this statutory instruction, together with the directive in 42 U.S.C. 6294(c)(2)(B), as applying to general product types (i.e., categories), not to individual models. Furthermore, models frequently appear in the market that may fall outside of the Rule's current range, and the statute contains no requirement for the Commission to update ranges continuously. Indeed, the law prohibits the Commission from updating ranges more often than annually.10

10 42 U.S.C. 6296(c).

B. Room Air Conditioner Labels on Packages

Background: In the NPRM, the Commission proposed a compliance date for changes to room air conditioner labels. In 2015, the Commission announced final amendments requiring labels on room air conditioner boxes and replacing the EER (“Energy Efficiency Ratio”) disclosure with CEER (“Combined Energy Efficiency Ratio”) (80 FR 67285, 67292-3 (Nov. 2, 2015)). However, to reduce burden on manufacturers that use both the U.S. and Canadian labels, the Commission delayed a compliance date announcement until Natural Resources Canada (NRCan), which administers the Canadian EnerGuide labeling program, had announced similar provisions. On December 28, 2016, NRCan published regulatory amendments providing manufacturers the option to print the EnerGuide label on packaging (Canada Gazette, Vol. 150, No. 26 (Dec. 28, 2016)) in lieu of affixing the EnerGuide label to the product. The Commission then proposed a compliance date of October 1, 2018, explaining that October coincides with the beginning of the industry's annual production cycle (i.e., the cooling season).

Comments: AHAM generally supported the change from EER to CEER, as well as the transition to labels on product boxes. However, it urged the Commission to provide additional time for this transition. Specifically, AHAM argued that the change will require manufacturers to completely redesign their packaging to accommodate the label. Accordingly, AHAM requested that the Commission set an October 1, 2019 date for the box labels.

Discussion: In response to AHAM's concerns, the Commission sets the compliance date at October 1, 2019 to provide manufacturers ample time to make the transition to box labels. As indicated in the NPRM, manufacturers generally deploy their product lines on an annual basis beginning in October of each year. According to AHAM, an October 2018 compliance date likely would not provide adequate time for making the required changes. In addition, the Commission expects a compliance date falling in the middle of the annual production cycle could cause significant disruption. If they so choose, manufacturers may begin using the labels on packages before the October 1, 2019 compliance date. In the meantime, they must continue to affix labels to the products themselves and provide labels online. The amendments also change the label's efficiency disclosure from EER to CEER as proposed.11 Manufacturers should begin using CEER along with the new ranges published in this document (i.e., within 90 days of publication).

11 80 FR at 67292-3.

C. Technical Corrections and Clarifications

Background: In the NPRM, the Commission proposed several minor clarifying and corrective amendments. These included a clarification to § 305.10(c) regarding labeling for models falling outside of the current ranges, as well as corrections to §§ 305.5 (obsolete reference to LED bulb tests), 305.8 (reference to the timing of reporting requirements), 305.12 (sample label references for central air conditioners labels), and 305.16 (plumbing disclosures).

Comments: Several commenters, including AHAM and NEMA, supported these minor amendments. No comments opposed them. However, AHAM requested additional clarifications. First, it recommended replacing the term “operating cost” with “energy cost” in § 305.10(c)(2) and on the sample clothes washer label in appendix L to ensure consistency with other sample labels and Rule provisions. According to AHAM, industry members have used the term “energy cost” on labels prepared pursuant to § 305.10 for this reason. In addition, most of the labels and applicable Rule text in § 305.11 use the term “energy cost.” AHAM urged the Commission to provide ample time for manufacturers to make any necessary changes.

AHAM also urged the Commission to clarify the label language required for describing refrigerator-freezers that do not have through-the-door ice service. AHAM noted that the Rule's sample label uses the phrase “no through-the-door ice,” whereas the comparability range tables in appendix A state “Without Through-the-door-ice.” Although AHAM did not express a preference for the applicable language, it requested sufficient time for their members to change labels to avoid waste and unnecessary cost should the Commission issue a clarification.

Discussion: The Commission amends the Rule to include the proposed clarifications and technical corrections, including replacing the term “operating cost” with “energy cost” in § 305.10(c)(2) and on the clothes washer label as suggested by AHAM. The Commission does not expect these corrections to create any additional burden for manufacturers because current practice appears to be consistent with most of these changes. However, to the extent that manufacturers must change existing labels, they may do so after exhausting their current label supply to avoid unnecessary costs. Should individual manufacturers have questions about revising labels, they can contact FTC staff for guidance.12

12 In addition, the final amendments correct § 305.11 to reinsert paragraphs (f)(10) and (11), which were inadvertently omitted in an earlier rulemaking (81 FR 63634, Sept. 15, 2016)). The Commission finds good cause for implementing the technical corrections recommended by AHAM and the correction to § 305.11 without further notice and comment. See 5 U.S.C. 553(b)(3)(B); 5 CFR 1.26(b).

The Commission, however, declines to amend the Rule's descriptions for refrigerator-freezers. The current Rule sets only general requirements for the content of these product descriptions at the labels top left and does not prescribe exact language that manufacturers must use.13 Accordingly, manufacturers may continue to use their present descriptions provided they are consistent with the Rule's refrigerator-freezer categories. The Commission may consider amending the Rule in the future to require uniform descriptors for refrigerator-freezers should stakeholders desire such a change. For now, without further notice and comment, the Commission does not change this provision of the Rule.

13 Though the model descriptions at the label's top left portion must be “consistent” with the tables in appendix A (§ 305.11(f)(4)), such descriptions do not have to track the language in the tables exactly. See 81 FR 63634, 63639, n. 39 (Sept. 15, 2016) (adding the requirements in § 305.11(f)(4) to ensure manufacturers do not list extraneous product features). However, explanatory language at the label's lower section must contain the specific descriptors set out in § 305.11(f)(9)(iii)) (“models with similar features . . .”).

D. Additional Issues Raised in Comments

A few commenters offered broad suggestions to improve aspects of the Energy Labeling Rule not discussed in NPRM, thus falling outside of the scope of the proposed amendments.14 For instance, the American Public Gas Association (APGA) recommended the Commission consider requiring source-based energy efficiency descriptors on the EnergyGuide labels to provide consumers with broader information about the overall environmental impacts of product use. APGA also urged the Commission to consider using marginal energy cost figures for calculating annual energy costs on labels, indicating that the average cost figures currently used for the labels overstate the costs. APGA urged the Commission to raise these issues in the future for further discussion.

14 Other comments (Castillo and Chambers) expressed general support for the Rule. One commenter (Kremer) argued that the Rule's labeling is “redundant” and that consumers only need wattage information.

Gear also provided several suggestions to improve the labels. First, Gear recommended state-by-state energy cost disclosures on the label to provide consumers with energy information reflecting the utility rates where they live. If such disclosures prove impracticable for individual labels, the commenter suggested the Commission consider providing this information online. Second, Gear recommended the label contain a “yearly cost compared to average” disclosure, as well as other design changes to address reported concerns with consumer comprehension. Finally, Gear recommended the Commission consider requiring labels for clothes dryers.

At this time, the Commission does not propose additional changes to the Rule, though it may consider such broader issues in the future. Without an opportunity for public comment and further consideration, the Commission cannot make such changes at this time. In recent years, the Commission has implemented many broad changes related to label design, reporting, and other aspects of the labeling program to improve information for consumers and industry members.15 Accordingly, the Commission does not plan to pursue these additional issues as part of the present amendments. Instead, the FTC staff will review these issues and consider whether to recommend additional amendments or non-regulatory measures in the future. It will also continue working outside the rulemaking context with DOE staff to explore online consumer information about the energy use of covered products, including source-based impacts and energy costs reflecting state or regional variations in fuel rates.

15See, e.g., 75 FR 41696 (July 19, 2010) (new light bulb labels); 76 FR 1037 (Jan. 6, 2011) (television labels); 78 FR 2200 (Jan. 1, 2013) (online labels and streamlined reporting); 78 FR 8362 (Feb. 6, 2013) (regional standards for heating and cooling equipment); 80 FR 67285 (Nov. 2, 2015) (expansion of light bulb label coverage, increase label durability, and improve plumbing disclosures); 81 FR 63633 (Sept. 15, 2016) (improve access to energy labels online and improve labels for refrigerators, ceiling fans, central air conditioners, and water heaters).

IV. Paperwork Reduction Act

The current Rule contains recordkeeping, disclosure, testing, and reporting requirements that constitute information collection requirements as defined by 5 CFR 1320.3(c), the definitional provision within the Office of Management and Budget (OMB) regulations that implement the Paperwork Reduction Act. OMB has approved the Rule's existing information collection requirements through November 30, 2019 (OMB Control No. 3084 0069). The amendments do not change the substance or frequency of the recordkeeping, disclosure, or reporting requirements and, therefore, do not require further OMB clearance.

V. Regulatory Flexibility Act

The provisions of the Regulatory Flexibility Act relating to a Regulatory Flexibility Act analysis (5 U.S.C. 603-604) are not applicable to this proceeding because the amendments do not impose any new obligations on entities regulated by the Energy Labeling Rule. As explained elsewhere in this document, the amendments do not change the substance or frequency of the recordkeeping, disclosure, or reporting requirements. Thus, the amendments will not have a “significant economic impact on a substantial number of small entities.” 5 U.S.C. 605. The Commission has concluded, therefore, that a regulatory flexibility analysis is not necessary, and certifies, under Section 605 of the Regulatory Flexibility Act (5 U.S.C. 605(b)), that the amendments will not have a significant economic impact on a substantial number of small entities.

List of Subjects in 16 CFR Part 305

Advertising, Energy conservation, Household appliances, Labeling, Reporting and recordkeeping requirements.

For the reasons set out above, the Commission amends 16 CFR part 305 as follows:

PART 305—ENERGY AND WATER USE LABELING FOR CONSUMER PRODUCTS UNDER THE ENERGY POLICY AND CONSERVATION ACT (“ENERGY LABELING RULE”) 1. The authority citation for part 305 continues to read as follows: Authority:

42 U.S.C. 6294.

§ 305.2 [Amended]
2. In § 305.2(p), remove the words “energy efficiency ratio (EER)” and add, in their place, “combined energy efficiency ratio (CEER)”. 3. In § 305.5, revise paragraph (a), remove paragraph (c), and redesignate paragraph (d) as paragraph (c) to read as follows:
§ 305.5 Determinations of estimated annual energy consumption, estimated annual operating cost, and energy efficiency rating, water use rate, and other required disclosure content.

(a) Unless otherwise stated in paragraphs (b) and (c) of this section, the content of any disclosures required by this part must be determined in accordance with the testing and sampling provisions required by the Department of Energy as set forth in subpart B to 10 CFR part 430, 10 CFR part 431, and 10 CFR 429.11.

§ 305.7 [Amended]
4. In § 305.7(f), remove the word “EER” and add, in its place, “CEER.” 5. In § 305.8, revise paragraph (c) to read as follows:
§ 305.8 Submission of data.

(c) All information required by paragraphs (a)(1) through (3) of this section must be submitted for new models prior to any distribution of such model. Models subject to design or retrofit alterations which change the data contained in any annual report shall be reported in the manner required for new models. Models which are discontinued shall be reported in the next annual report.

6. In § 305.10, paragraphs (a), (b), and (c)(2) are revised and paragraph (c)(3) is added to read as follows:
§ 305.10 Ranges of comparability on the required labels.

(a) Range of estimated annual energy costs or energy efficiency ratings. The range of estimated annual operating costs or energy efficiency ratings for each covered product (except televisions, ceiling fans, fluorescent lamp ballasts, lamps, metal halide lamp fixtures, showerheads, faucets, water closets and urinals) shall be taken from the appropriate appendix to this part in effect at the time the labels are affixed to the product. The Commission shall publish revised ranges in the Federal Register in 2022. When the ranges are revised, all information disseminated after 90 days following the publication of the revision shall conform to the revised ranges. Products that have been labeled prior to the effective date of a modification under this section need not be relabeled.

(b) Representative average unit energy cost. The Representative Average Unit Energy Cost to be used on labels as required by § 305.11 and disclosures as required by § 305.20 are listed in appendices K1 and K2 to this part. The Commission shall publish revised Representative Average Unit Energy Cost figures in the Federal Register in 2022. When the cost figures are revised, all information disseminated after 90 days following the publication of the revision shall conform to the new cost figure.

(c) * * *

(2) Add one of the two sentences below, as appropriate, in the space just below the scale on the label, as follows:

The estimated yearly energy cost of this model was not available at the time the range was published.

The energy efficiency rating of this model was not available at the time the range was published.

(3) For refrigerator and refrigerator-freezer labels:

(i) If the model's energy cost falls outside of either or both ranges on the label, include the language in paragraph (c)(2) of this section.

(ii) If the model's energy cost only falls outside of the range for models with similar features, but is within the range for all models, include the product on the scale and place a triangle below the dollar value.

(iii) If the model's energy cost falls outside of both ranges of comparability, omit the triangle beneath the yearly operating cost value.

7. Amend § 305.11 by revising paragraphs (d) introductory text, (d)(3), and (f)(9)(x) and adding paragraphs (f)(10) and (11) to read as follows:
§ 305.11 Labeling for refrigerators, refrigerator-freezers, freezers, dishwashers, clothes washers, water heaters, room air conditioners, and pool heaters.

(d) Label types. Except as indicated in paragraph (d)(3) of this section, the labels must be affixed to the product in the form of an adhesive label or a hang tag as follows:

(3) Package labels for certain products. Labels for electric instantaneous water heaters shall be printed on or affixed to the product's packaging in a conspicuous location. Labels for room air conditioners produced on or after October 1, 2019 shall be printed on or affixed to the principal display panel of the product's packaging.

(f) * * *

(9) * * *

(x) For clothes washers covered by appendices F1 and F2 of this part, the statement will read as follows (fill in the blanks with the appropriate capacity and energy cost figures):

Your costs will depend on your utility rates and use.

Cost range based only on [compact/standard] capacity models.

Estimated energy cost is based on six wash loads a week and a national average electricity cost of __ cents per kWh and natural gas cost of $ __ per therm. ftc.gov/energy.

(10) The following statement shall appear on each label as illustrated in the prototype and sample labels in appendix L of this part:

Federal law prohibits removal of this label before consumer purchase.

(11) No marks or information other than that specified in this part shall appear on or directly adjoining this label except that:

(i) A part or publication number identification may be included on this label, as desired by the manufacturer. If a manufacturer elects to use a part or publication number, it must appear in the lower right-hand corner of the label and be set in 6-point type or smaller.

(ii) The energy use disclosure labels required by the governments of Canada or Mexico may appear directly adjoining this label, as desired by the manufacturer.

(iii) The manufacturer or private labeler may include the ENERGY STAR logo on the bottom right corner of the label for certified products. The logo must be 1 inch by 1 inch in size. Only manufacturers that have signed a Memorandum of Understanding with the Department of Energy or the Environmental Protection Agency may add the ENERGY STAR logo to labels on certified covered products; such manufacturers may add the ENERGY STAR logo to labels only on those covered products that are contemplated by the Memorandum of Understanding.

8. In § 305.12, revise paragraphs (g)(12)(ii), (g)(13)(ii), (g)(14) introductory text, and (g)(14)(ii) to read as follows:
§ 305.12 Labeling for central air conditioners, heat pumps, and furnaces.

(g) * * *

(12) * * *

(ii) A map appropriate for the model and accompanying text as illustrated in the sample label 7 in appendix L of this part.

(13) * * *

(ii) A map appropriate for the model and accompanying text as illustrated in the sample label 7 in appendix L of this part.

(14) For any single-package air conditioner with a minimum EER below 11.0, the label must contain the following regional standards information:

(ii) A map appropriate for the model and accompanying text as illustrated in the sample label 7 in appendix L of this part.

§ 305.16 [Amended]
9. Amend § 305.16 by removing paragraph (a)(5). 10. Appendix C1 to part 305 is revised to read as follows: Appendix C1 to Part 305—Compact Dishwashers Range Information

“Compact” includes countertop dishwasher models with a capacity of fewer than eight (8) place settings. Place settings shall be in accordance with appendix C to 10 CFR part 430, subpart B. Load patterns shall conform to the operating normal for the model being tested.

Capacity Range of estimated
  • annual energy costs
  • (dollars/year)
  • Low High
    Compact $17 $27
    11. Appendix C2 to part 305 is revised to read as follows: Appendix C2 to Part 305—Standard Dishwashers Range Information

    “Standard” includes dishwasher models with a capacity of eight (8) or more place settings. Place settings shall be in accordance with appendix C to 10 CFR part 430, subpart B. Load patterns shall conform to the operating normal for the model being tested.

    Capacity Range of estimated
  • annual energy costs
  • (dollars/year)
  • Low High
    Standard $26 $40
    12. Appendix E to part 305 is revised to read as follows: Appendix E to Part 305—Room Air Conditioners Range Information Manufacturer's rated cooling capacity in Btu's/hr Range of estimated
  • annual energy costs
  • (dollars/year)
  • Low High
    Without Reverse Cycle and with Louvered Sides: Less than 6,000 Btu $40 $53 6,000 to 7,999 Btu 48 72 8,000 to 13,999 Btu 65 127 14,000 to 19,999 Btu 115 182 20,000 and more Btu 189 386 Without Reverse Cycle and without Louvered Sides: Less than 6,000 Btu (*) (*) 6,000 to 7,999 Btu 58 80 8,000 to 13,999 Btu 69 147 14,000 to 19,999 Btu 117 158 20,000 and more Btu (*) (*) With Reverse Cycle and with Louvered Sides 68 238 With Reverse Cycle, without Louvered Sides (*) (*) * No sufficient data submitted.
    13. Revise appendices G1, G2, G3, G4, G5, G6, G7, and G8 to read as follows: Appendix G1 to Part 305—Furnaces—Gas Furnace type Range of annual fuel
  • utilization efficiencies (AFUEs)
  • Low High
    Non-Weatherized Gas Furnaces—All Capacities 80.0 98.7 Weatherized Gas Furnaces—All Capacities 81.0 95.0
    Appendix G2 to Part 305—Furnaces—Electric Furnace type Range of annual fuel
  • utilization efficiencies (AFUEs)
  • Low High
    Electric Furnaces—All Capacities 100.0 100.0
    Appendix G3 to Part 305—Furnaces—Oil Type Range of annual fuel
  • utilization efficiencies (AFUEs)
  • Low High
    Non-Weatherized Oil Furnaces—All Capacities 83.0 96.7 Weatherized Oil Furnaces—All Capacities 78.0 83.0
    Appendix G4 to Part 305—Mobile Home Furnaces—Gas Type Range of annual fuel
  • utilization efficiencies (AFUEs)
  • Low High
    Mobile Home Gas Furnaces—All Capacities 80.0 97.3
    Appendix G5 to Part 305—Mobile Home Furnaces—Oil Type Range of annual fuel
  • utilization efficiencies (AFUEs)
  • Low High
    Mobile Home Oil Furnaces—All Capacities 80.0 87.0
    Appendix G6 to Part 305—Boilers (Gas) Type Range of annual fuel
  • utilization efficiencies (AFUEs)
  • Low High
    Gas Boilers (except steam)—All Capacities 82.0 96.8 Gas Boilers (steam)—All Capacities 80.4 83.4
    Appendix G7 to Part 305—Boilers (Oil) Type Range of annual fuel
  • utilization efficiencies (AFUEs)
  • Low High
    Oil Boilers—All Capacities 82.0 90.0
    Appendix G8 to Part 305—Boilers (Electric) Type Range of annual fuel
  • utilization efficiencies (AFUEs)
  • Low High
    Electric Boilers—All Capacities 100 100
    14. Appendices J1 and J2 are revised to read as follows: Appendix J1 to Part 305—Pool Heaters—Gas Range Information Manufacturer's rated heating capacities Range of thermal efficiencies
  • (percent)
  • Natural Gas Low High Propane Low High
    All capacities 82.0 96.0 82.0 96.0
    Appendix J2 to Part 305—Pool Heaters—Oil Range Information Manufacturer's rated heating capacities Range of thermal
  • efficiencies
  • (percent)
  • Low High
    All capacities (*) (*) * No data submitted.
    Appendix K to Part 305 [Removed] 15. Appendix K to part 305 is removed. 16. Appendices K1 and K2 are added to read as follows: Appendix K1 to Part 305—Representative Average Unit Energy Costs for Refrigerators, Refrigerator-Freezers, Freezers, Clothes Washers, and Water Heater Labels

    This Table contains the representative unit energy costs that must be utilized to calculate estimated annual energy cost disclosures required under §§ 305.11 and 305.20 for refrigerators, refrigerator-freezers, freezers, clothes washers, and water heaters. This Table is based on information published by the U.S. Department of Energy in 2013.

    Type of energy In commonly used terms As required by
  • DOE test
  • procedure
  • Electricity ¢12.00/kWh 23 $.1200/kWh. Natural Gas $1.09/therm 4 or $11.12/MCF 56 $0.0000109/Btu. No. 2 Heating Oil $3.80/gallon 7 $0.00002740/Btu. Propane $2.41/gallon 8 $0.00002639/Btu. Kerosene $4.21/gallon 9 $0.00003119/Btu. 1 Btu stands for British thermal unit. 2 kWh stands for kiloWatt hour. 3 1 kWh = 3,412 Btu. 4 1 therm = 100,000 Btu. Natural gas prices include taxes. 5 MCF stands for 1,000 cubic feet. 6 For the purposes of this table, 1 cubic foot of natural gas has an energy equivalence of 1,023 Btu. 7 For the purposes of this table, 1 gallon of No. 2 heating oil has an energy equivalence of 138,690 Btu. 8 For the purposes of this table, 1 gallon of liquid propane has an energy equivalence of 91,333 Btu. 9 For the purposes of this table, 1 gallon of kerosene has an energy equivalence of 135,000 Btu.
    Appendix K2 to Part 305—Representative Average Unit Energy Costs for Dishwasher and Room Air Conditioner Labels

    This Table contains the representative unit energy costs that must be utilized to calculate estimated annual energy cost disclosures required under §§ 305.11 and 305.20 for dishwashers and room air conditioners. This Table is based on information published by the U.S. Department of Energy in 2017.

    Type of energy In commonly used terms As required by
  • DOE test
  • procedure
  • Electricity ¢13.00/kWh 23 $.1300/kWh. Natural Gas $1.05/therm 4 or $10.86/MCF 56 $0.00001052/Btu. No. 2 Heating Oil $2.59/gallon 7 $0.00001883/Btu. Propane $1.53/gallon 8 $0.00001672/Btu. Kerosene $3.01/gallon 9 $0.00002232/Btu. 1 Btu stands for British thermal units. 2 kWh stands for kilowatt hour. 3 kWh = 3,412 Btu. 4 therm = 100,000 Btu. 5 MCF stands for 1,000 cubic feet. 6 For the purposes of this table, one cubic foot of natural gas has an energy equivalence of 1,032 Btu. 7 For the purposes of this table, one gallon of No. 2 heating oil has an energy equivalence of 137,561 Btu. 8 For the purposes of this table, one gallon of liquid propane has an energy equivalence of 91,333 Btu. 9 For the purposes of this table, one gallon of kerosene has an energy equivalence of 135,000 Btu.
    17. In appendix L, revise prototype label 2, add sample label 2 in alphanumeric order, revise sample labels 3 and 4, add sample label 6 in alphanumeric order, and revise sample labels 9 and 9A to read as follows: BILLING CODE 6750-01-P ER22FE18.001 ER22FE18.002 ER22FE18.003 ER22FE18.004 ER22FE18.005 ER22FE18.006 ER22FE18.007

    By direction of the Commission.

    Donald S. Clark, Secretary.
    [FR Doc. 2018-03665 Filed 2-21-18; 8:45 am] BILLING CODE 6750-01-C
    DEPARTMENT OF HOMELAND SECURITY U.S. Customs and Border Protection 19 CFR Part 122 [CBP Dec. 18-01] Technical Amendment to List of User Fee Airports: Name Changes of Several Airports and the Addition of Five Airports AGENCY:

    U.S. Customs and Border Protection; DHS.

    ACTION:

    Final rule; technical amendment.

    SUMMARY:

    This document amends U.S. Customs and Border Protection (CBP) regulations by revising the list of user fee airports to reflect the name changes of several airports and the designation of user fee status for five additional airports: South Texas International Airport at Edinburg in Edinburg, Texas; Florida Keys Marathon Airport in Marathon, Florida; Appleton International Airport in Appleton, Wisconsin; South Bend International Airport in South Bend, Indiana; and Conroe-North Houston Regional Airport in Conroe, Texas. User fee airports are those airports which, while not qualifying for designation as international or landing rights airports, have been approved by the Commissioner of CBP to receive, for a fee, the services of CBP officers for the processing of aircraft entering the United States, and the passengers and cargo of those aircraft.

    DATES:

    Effective Date: February 22, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Chris Sullivan, Director, Alternative Funding Program, Office of Field Operations, U.S. Customs and Border Protection at [email protected] or 202-344-3907.

    SUPPLEMENTARY INFORMATION: Background

    Title 19, part 122 of the Code of Federal Regulations (19 CFR part 122) sets forth regulations relating to the entry and clearance of aircraft in international commerce and the transportation of persons and cargo by aircraft in international commerce. Generally, a civil aircraft arriving from a place outside of the United States is required to land at an airport designated as an international airport. Alternatively, the pilot of a civil aircraft may request permission to land at a specific airport and, if landing rights are granted, the civil aircraft may land at that landing rights airport.

    Section 236 of the Trade and Tariff Act of 1984 (Pub. L. 98-573, 98 stat. 2948, 2994 (1984)), codified at 19 U.S.C. 58b, created an option for civil aircraft desiring to land at an airport other than an international airport or a landing rights airport. A civil aircraft arriving from a place outside of the United States may ask for permission to land at an airport designated by the Secretary of Homeland Security 1 as a user fee airport.

    1 Sections 403(1) and 411 of the Homeland Security Act of 2002 (Pub. L. 107-296, 116 stat. 2135, 2178-79 (2002)), codified at 6 U.S.C. 203(1) and 211, transferred certain functions, including the authority to designate user fee facilities, from the U.S. Customs Service of the Department of the Treasury to the Department of Homeland Security.

    Pursuant to 19 U.S.C. 58b, an airport may be designated as a user fee airport if the Commissioner of CBP, as delegated by the Secretary of Homeland Security, determines that the volume or value of business at the airport is insufficient to justify the availability of customs services at the airport and the governor of the state in which the airport is located approves the designation. As the volume or value of business anticipated at this type of airport is insufficient to justify its designation as an international or landing rights airport, the availability of customs services is not paid for out of appropriations from the general treasury of the United States. Instead, customs services are provided on a fully reimbursable basis to be paid for by the user fee airport. The fees charged must be paid by the user fee airport and must be in the amount equal to the expenses incurred by the Commissioner of CBP in providing customs services at such airport, including the salary and expenses of those employed by the Commissioner of CBP to provide the customs services. See 19 U.S.C. 58b.

    The Commissioner of CBP designates airports as user fee airports in accordance with 19 U.S.C. 58b and pursuant to 19 CFR 122.15. If the Commissioner decides that the conditions for designation as a user fee airport are satisfied, a Memorandum of Agreement (MOA) is executed between the Commissioner of CBP and the user fee airport sponsor. In this manner, user fee airports are designated on a case-by-case basis.

    The list of designated user fee airports is set forth in 19 CFR 122.15(b). Periodically, CBP updates the list to reflect designated airports that have not yet been added to the list and to reflect any changes in the names of the designated user fee airports.

    Recent Changes Requiring Updates to the List of User Fee Airports

    This document updates the list of user fee airports in 19 CFR 122.15(b) by adding the following five airports: South Texas International Airport at Edinburg in Edinburg, Texas; Florida Keys Marathon Airport in Marathon, Florida; Appleton International Airport in Appleton, Wisconsin; South Bend International Airport in South Bend, Indiana; and Conroe-North Houston Regional Airport in Conroe, Texas. During the last several years, the Commissioner of CBP signed MOAs designating each of these five airports as a user fee airport.2

    2 The Commissioner of CBP signed an MOA designating Conroe-North Houston Regional Airport on June 14, 2016, an MOA designating South Bend International Airport on July 5, 2016, an MOA designating South Texas International Airport at Edinburg on September 18, 2014, an MOA designating Florida Keys Marathon Airport on April 3, 2015, and an MOA designating Appleton International Airport on October 23, 2015.

    Additionally, this document updates the list of user fee airports to reflect name changes of airports that were previously designated as user fee airports. The name changes are shown in the following chart. The left column contains the former name of each airport as it is currently listed in 19 CFR 122.15(b). The right column contains the updated name of each airport.

    Name Change From: To: Melbourne Airport Orlando Melbourne International Airport. Jefferson County Airport Rocky Mountain Metropolitan Airport. Leesburg Regional Airport Leesburg International Airport. Manchester Airport Manchester-Boston Regional Airport. Collin County Regional Airport McKinney National Airport. Midland International Airport Midland International Air and Space Port. Rogers Municipal Airport Rogers Executive Airport—Carter Field. St. Augustine Airport Northeast Florida Regional Airport. Waukegan Regional Airport Waukegan National Airport. Binghamton Regional Airport Greater Binghamton Airport. Inapplicability of Public Notice and Delayed Effective Date Requirements

    Under the Administrative Procedure Act (5 U.S.C. 553(b)), an agency is exempted from the prior public notice and comment procedures if it finds, for good cause, that they are impracticable, unnecessary, or contrary to the public interest. This final rule makes conforming changes by updating the list of user fee airports to add five airports that have already been designated by the Commissioner of CBP in accordance with 19 U.S.C. 58b as user fee airports and to update the name of several user fee airports. Because this conforming rule has no substantive impact, is technical in nature, and does not impose additional burdens on or take away any existing rights or privileges from the public, CBP finds for good cause that the prior public notice and comments procedures are impracticable, unnecessary, and contrary to the public interest. For the same reasons, pursuant to 5 U.S.C. 553(d)(3), a delayed effective date is not required.

    Regulatory Flexibility Act and Executive Orders 12866 and 13771

    Because no notice of proposed rulemaking is required, the provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) do not apply. This amendment does not meet the criteria for a “significant regulatory action” as specified in Executive Order 12866. Additionally, because this amendment is not a significant regulatory action it is not subject to the requirements of Executive Order 13771.

    Paperwork Reduction Act

    There is no new collection of information required in this document; therefore, the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3507) are inapplicable.

    Signing Authority

    This document is limited to a technical correction of CBP regulations. Accordingly, it is being signed under the authority of 19 CFR 0.1(b).

    List of Subjects in 19 CFR Part 122

    Air carriers, Aircraft, Airports, Customs duties and inspection, Freight.

    Amendments to Regulations

    Part 122, of title 19 of the Code of Federal Regulations (19 CFR part 122) is amended as set forth below:

    PART 122—AIR COMMERCE REGULATIONS 1. The general authority citation for part 122 continues to read as follows: Authority:

    5 U.S.C. 301; 19 U.S.C. 58b, 66, 1431, 1433, 1436, 1448, 1459, 1590, 1594, 1623, 1624, 1644, 1644a, 2071 note.

    2. In § 122.15, amend the table in paragraph (b) by: a. Adding an entry for “Appleton, Wisconsin” in alphabetical order; b. Revising the entry for “Broomfield, Colorado”; c. Adding entries for “Conroe, Texas” and “Edinburg, Texas” in alphabetical order; d. Revising the entries for “Johnson City, New York”, “Leesburg, Florida”, and “Manchester, New Hampshire”; e. Adding an entry for “Marathon, Florida” in alphabetical order; f. Revising the entries for “McKinney, Texas”, “Melbourne, Florida”, “Midland, Texas”, and “Rogers, Arkansas”; g. Adding an entry for “South Bend, Indiana” in alphabetical order; and h. Revising the entries for “St. Augustine, Florida” and “Waukegan, Illinois”.

    The additions and revisions read as follows:

    § 122.15 User fee airports.

    (b) * * *

    Location Name *         *         *         *         *         *         * Appleton, Wisconsin Appleton International Airport. *         *         *         *         *         *         * Broomfield, Colorado Rocky Mountain Metropolitan Airport. *         *         *         *         *         *         * Conroe, Texas Conroe-North Houston Regional Airport. *         *         *         *         *         *         * Edinburg, Texas South Texas International Airport at Edinburg. *         *         *         *         *         *         * Johnson City, New York Greater Binghamton Airport. *         *         *         *         *         *         * Leesburg, Florida Leesburg International Airport. *         *         *         *         *         *         * Manchester, New Hampshire Manchester-Boston Regional Airport. Marathon, Florida Florida Keys Marathon Airport. *         *         *         *         *         *         * McKinney, Texas McKinney National Airport. Melbourne, Florida Orlando Melbourne International Airport. *         *         *         *         *         *         * Midland, Texas Midland International Air and Space Port. *         *         *         *         *         *         * Rogers, Arkansas Rogers Executive Airport—Carter Field. *         *         *         *         *         *         * South Bend, Indiana South Bend International Airport. St. Augustine, Florida Northeast Florida Regional Airport. *         *         *         *         *         *         * Waukegan, Illinois Waukegan National Airport. *         *         *         *         *         *         *
    Dated: February 15, 2018. Kevin K. McAleenan, Acting Commissioner, U.S. Customs and Border Protection.
    [FR Doc. 2018-03581 Filed 2-21-18; 8:45 am] BILLING CODE 9111-14-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R03-OAR-2017-0382; FRL-9974-66—Region 3] Approval and Promulgation of Air Quality Implementation Plans; Virginia; Revisions To Implement the Revocation of the 1997 Ozone NAAQS AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is taking final action to approve revisions to the Commonwealth of Virginia (Virginia) state implementation plan (SIP). The revisions are related to the implementation of the 2008 ozone national ambient air quality standards (NAAQS or standards) and the revocation of the 1997 ozone NAAQS. EPA is approving these revisions updating the Virginia SIP to reflect the revocation of the 1997 ozone NAAQS in accordance with the requirements of the Clean Air Act (CAA).

    DATES:

    This final rule is effective on March 26, 2018.

    ADDRESSES:

    EPA has established a docket for this action under Docket ID Number EPA-R03-OAR-2017-0382. All documents in the docket are listed on the http://www.regulations.gov website. Although listed in the index, some information is not publicly available, e.g., confidential business information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy form. Publicly available docket materials are available through http://www.regulations.gov, or please contact the person identified in the FOR FURTHER INFORMATION CONTACT section for additional availability information.

    FOR FURTHER INFORMATION CONTACT:

    Sara Calcinore, (215) 814-2043, or by email at [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Background

    Under the CAA, EPA establishes NAAQS for criteria pollutants 1 in order to protect human health and the environment. In response to scientific evidence linking ozone exposure to adverse health effects, EPA promulgated the first ozone NAAQS, the 0.12 part per million (ppm) 1-hour ozone NAAQS, in 1979. See 44 FR 8202 (February 8, 1979). The CAA requires EPA to review and reevaluate the NAAQS every 5 years in order to consider updated information regarding the effects of the criteria pollutants on human health and the environment. On July 18, 1997, EPA promulgated a revised ozone NAAQS, referred to as the 1997 ozone NAAQS, of 0.08 ppm averaged over eight hours. 62 FR 38855. This 8-hour ozone NAAQS was determined to be more protective of public health than the previous 1979 1-hour ozone NAAQS. In 2008, EPA strengthened the 8-hour ozone NAAQS from 0.08 to 0.075 ppm. The 0.075 ppm standard is referred to as the 2008 ozone NAAQS and is more stringent than the previous 1997 ozone NAAQS. See 73 FR 16436 (March 27, 2008).2

    1 The “criteria pollutants” include ozone (O3), particulate matter (PM), sulfur dioxide (SO2), nitrogen dioxide (NO2), carbon monoxide (CO), and lead (Pb).

    2 On October 1, 2015, EPA strengthened the ground-level ozone NAAQS to 0.070 ppm. See 80 FR 65292 (October 26, 2015). This rulemaking addresses the 2008 ozone NAAQS and does not address the 2015 ozone NAAQS.

    On March 6, 2015, EPA issued a final rule addressing a range of nonattainment area SIP requirements for the 2008 ozone NAAQS. 80 FR 12264. This final rule also revoked the 1997 ozone NAAQS and established anti-backsliding requirements for areas not attaining the 1997 ozone NAAQS in 40 CFR 51.1105 that became effective once the 1997 ozone NAAQS was revoked. The anti-backsliding provisions require states to retain all applicable control requirements for the 1997 ozone NAAQS, while enabling states, where possible, to focus planning efforts on meeting the more protective 2008 ozone NAAQS. According to EPA's final rule, the revocation of the 1997 ozone NAAQS was effective as of April 6, 2015.

    On September 9, 2016, Virginia amended the Virginia Administrative Code to be consistent with EPA's March 6, 2015 final rule. On February 10, 2017, Virginia, through the Virginia Department of Environmental Quality (VADEQ), formally submitted a SIP revision (Revision G16) reflecting these amendments.

    On August 17, 2017 (82 FR 39097 and 82 FR 39031), EPA simultaneously published a notice of proposed rulemaking (NPR) and a direct final rule (DFR) for Virginia approving the SIP revision. EPA received two adverse comments on the rulemaking and attempted to withdraw the DFR prior to the effective date of October 16, 2017. However, EPA inadvertently did not withdraw the DFR prior to that date and the rule automatically and prematurely became effective on October 16, 2017, revising Virginia's SIP to reflect the revocation of the 1997 ozone NAAQS. In the NPR, EPA had proposed to approve the SIP revision, which included amendments made to provisions in Virginia's State Air Pollution Control Board's Regulations for the Control and Abatement of Air Pollution including 9VAC5-20-204, 9VAC5-30-55, 9VAC5-151-20, and 9VAC5-160-30. These revisions to the Virginia Administrative Code amended Virginia's regulatory provisions to reflect EPA's revocation of the 1997 ozone NAAQS and the implementation of the 2008 ozone NAAQS. In this final rulemaking, EPA is responding to the comments submitted on the proposed revision to the Virginia SIP and is reapproving the revisions to the Virginia SIP to reflect the revocation of the 1997 ozone NAAQS after our failure to withdraw the DFR (after EPA received adverse public comments) prior to the October 16, 2017 effective date of the DFR.

    II. Summary of SIP Revision and EPA Analysis

    Virginia's February 10, 2017 SIP submittal included amended versions of 9VAC5-20-204, 9VAC5-30-55, 9VAC5-151-20, and 9VAC5-160-30. Virginia requested that EPA approve the SIP revision so that these amended regulations would become part of the Virginia SIP. The amendment to 9VAC5-20-204 added text stating that the list of Northern Virginia moderate nonattainment areas under the 1997 ozone NAAQS is no longer effective after April 6, 2015, the effective date of the revocation of the 1997 ozone NAAQS. The amendment to 9VAC5-30-55 added text stating that the primary and secondary ambient air quality standard of 0.08 ppm shall no longer apply after April 6, 2015. Virginia also amended the Regulation for Transportation Conformity and the Regulation for General Conformity by adding clarifying text to 9VAC5-151-20 and 9VAC5-160-30 stating that “The provisions of this chapter shall not apply in nonattainment and maintenance areas that were designated nonattainment or maintenance under a federal standard that has been revoked.” These revisions to the Virginia Administrative Code reflect EPA's revocation of the 1997 ozone NAAQS.

    EPA's review of this material indicates the February 10, 2017 submittal is approvable as it revises regulations to be consistent with EPA's final rule implementing the 2008 ozone NAAQS. See 80 FR 12264 (March 6, 2015). The revisions update regulations to reflect the revocation of the 1997 NAAQS, which was effective April 6, 2015. Therefore, the revisions do not affect emissions of air pollutants or interfere with any applicable requirement concerning attainment or reasonable further progress or any other applicable requirements in the CAA. Thus, EPA finds the revision approvable in accordance with section 110, including section 110(l), of the CAA.

    III. Public Comments and EPA's Responses

    EPA received two anonymous public comments on our action to approve the February 10, 2017 SIP submittal.

    Comment: The first commenter stated that EPA cannot revoke the 1997 ozone NAAQS and cited a current court case in the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit). The commenter recommended that EPA wait until the D.C. Circuit's decision and not “loosen standards.”

    Response: EPA would like to clarify that the proposed revision to the Virginia SIP does not revoke the 1997 ozone NAAQS as the 1997 ozone NAAQS were revoked previously by EPA in a separate rulemaking effective April 6, 2015. See 80 FR 12264. The commenter's ability to challenge revocation of the 1997 ozone NAAQS was in that prior rulemaking. This particular rulemaking action is only removing references to the “revoked” 1997 ozone NAAQS that had been in Virginia's SIP. Thus, the commenter's statement that EPA should not revoke the 1997 ozone NAAQS is not relevant to this rulemaking.

    EPA acknowledges that there is presently a legal challenge in the D.C. Circuit to the rulemaking which revoked the 1997 ozone NAAQS.3 However, EPA disagrees with the commenter that EPA should wait for the outcome of this litigation before approving the Virginia SIP revision. As stated above, this SIP revision does not revoke the 1997 ozone NAAQS as the revocation of the NAAQS was effective on April 6, 2015 per EPA's March 6, 2015 rule. Additionally, nothing in section 110 of the CAA prevents Virginia from removing its references to the revoked 1997 ozone NAAQS from its SIP, as the removal does not affect emissions of air pollutants as it does not impact any applicable SIP requirements that apply to an area, interfere with any applicable requirements in the CAA, nor interfere with reasonable further progress. See section 110(l) of the CAA. Thus, EPA finds the revision approvable in accordance with section 110, including section 110(l), of the CAA.

    3South Coast Air Quality Management District v. EPA, Case Nos. 15-1115, 15-1123 (U.S. Court of Appeals, D.C. Cir.).

    In response to the commenter's concern that EPA's approval will “loosen standards,” EPA notes that the 2008 ozone NAAQS of 0.075 ppm, which EPA is presently implementing in collaboration with states such as Virginia, is more protective of human health and the environment than the 1997 ozone NAAQS of 0.08 ppm. In addition, the ozone nonattainment areas in Virginia are the same for the 1997 ozone NAAQS as for the 2008 ozone NAAQS. Thus, removing the revoked 1997 ozone NAAQS from the Virginia SIP is not expected to have any emissions impact nor interfere with reasonable further progress or any applicable CAA requirement. See also 80 FR 12264.

    Comment Summary: The second commenter requested that EPA not revoke the ozone NAAQS.

    Response: As discussed in detail in response to the first comment, EPA's approval of the removal of references in the Virginia SIP to the revoked 1997 ozone NAAQS does not actually revoke the 1997 ozone NAAQS as EPA previously effectuated that revocation in a prior, separate rulemaking. See 80 FR 12264.

    IV. Final Action

    EPA is approving the Virginia SIP revision submitted on February 10, 2017, which includes amendments made to several sections of the Virginia Administrative Code, including 9VAC5-20-204, 9VAC5-30-55, 9VAC5-151-20, and 9VAC5-160-30, as a revision to the Virginia SIP because the revisions meet the requirements of CAA section 110. EPA is reapproving the revisions to Virginia's SIP because the revisions were added to the SIP prematurely on October 16, 2017 when EPA failed to withdraw its DFR after receiving two adverse comments on our direct final approval of the revisions to the Virginia SIP to reflect the revocation of the 1997 ozone NAAQS. This rule, which responds to the adverse comments received, finalizes our approval.

    V. General Information Pertaining to SIP Submittals From the Commonwealth of Virginia

    In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) “privilege” for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-1198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information that: (1) Are generated or developed before the commencement of a voluntary environmental assessment; (2) are prepared independently of the assessment process; (3) demonstrate a clear, imminent and substantial danger to the public health or environment; or (4) are required by law.

    On January 12, 1998, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege to documents and information “required by law,” including documents and information “required by federal law to maintain program delegation, authorization or approval,” since Virginia must “enforce federally authorized environmental programs in a manner that is no less stringent than their federal counterparts. . . .” The opinion concludes that “[r]egarding § 10.1-1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by federal law to maintain program delegation, authorization or approval.”

    Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that “[t]o the extent consistent with requirements imposed by federal law,” any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1998 opinion states that the quoted language renders this statute inapplicable to enforcement of any federally authorized programs, since “no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with federal law, which is one of the criteria for immunity.”

    Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its program consistent with the federal requirements. In any event, because EPA has also determined that a state audit privilege and immunity law can affect only state enforcement and cannot have any impact on federal enforcement authorities, EPA may at any time invoke its authority under the CAA, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the state plan, independently of any state enforcement effort. In addition, citizen enforcement under section 304 of the CAA is likewise unaffected by this, or any, state audit privilege or immunity law.

    VI. Incorporation by Reference

    In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of the revisions to 9VAC5-20-204, 9VAC5-30-55, 9VAC5-151-20, and 9VAC5-160-30 of the State Air Pollution Control Board's Regulation for the Control and Abatement of Air Pollution discussed in Section II of this preamble. EPA has made, and will continue to make, these materials generally available through http://www.regulations.gov and at the EPA Region III Office (please contact the person identified in the For Further Information Contact section of this preamble for more information). These materials have been approved by EPA for inclusion in the SIP, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference by the Director of the Federal Register in the next update to the SIP compilation.4

    4 62 FR 27968 (May 22, 1997).

    VII. Statutory and Executive Order Reviews A. General Requirements

    Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

    • Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

    • is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866;

    • does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);

    • is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);

    • does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

    • does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

    • is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

    • is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

    • is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and

    • does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

    The SIP is not approved to apply on any Indian reservation land as defined in 18 U.S.C. 1151 or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

    B. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

    C. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 23, 2018. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action.

    This action to approve revised provisions of the Virginia Administrative Code including 9VAC5-20-204, 9VAC5-30-55, 9VAC5-151-20, and 9VAC5-160-30 for inclusion in the Virginia SIP may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.

    Dated: February 9, 2018. Cosmo Servidio, Regional Administrator, Region III.

    40 CFR part 52 is amended as follows:

    PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 1. The authority citation for part 52 continues to read as follows: Authority:

    42 U.S.C. 7401 et seq.

    Subpart VV—Virginia 2. In § 52.2420, the table in paragraph (c) is amended by revising the entries for Sections 5-20-204, 5-30-55, 5-151-20, and 5-160-30. The revised text reads as follows:
    § 52.2420 Identification of plan.

    (c) * * *

    EPA-Approved Virginia Regulations and Statutes State citation Title/subject State effective date EPA approval date Explanation
  • [former SIP citation]
  • *         *         *         *         *         *         * 9 VAC 5, Chapter 20 General Provisions *         *         *         *         *         *         * Part II Air Quality Programs *         *         *         *         *         *         * 5-20-204 Nonattainment Areas 11/16/16 2/22/18, [Insert Federal Register Citation] Addition of Subdivision C.
  • Previous approval 8/14/15.
  • *         *         *         *         *         *         * 9 VAC 5, Chapter 30 Ambient Air Quality Standards [Part III] *         *         *         *         *         *         * 5-30-55 Ozone (8-hour, 0.08 ppm) 11/16/16 2/22/18, [Insert Federal Register Citation] Subdivision D. is revised to read that the 1997 8-hour ozone NAAQS no longer apply after April 6, 2015.
  • Previous approval 6/11/13.
  • *         *         *         *         *         *         * 9 VAC 5, Chapter 151 Transportation Conformity *         *         *         *         *         *         * Part II General Provisions 5-151-20 Applicability 11/16/16 2/22/18, [Insert Federal Register Citation] Subdivision B. is amended to address revoked federal standards.
  • Previous approval 11/20/09.
  • *         *         *         *         *         *         * 9 VAC 5, Chapter 160 General Conformity *         *         *         *         *         *         * Part II General Provisions 5-160-30 Applicability 11/16/16 2/22/18, [Insert Federal Register Citation] Subdivision A. is amended to address revoked federal standards.
  • Previous approval 12/12/11.
  • *         *         *         *         *         *         *
    [FR Doc. 2018-03524 Filed 2-21-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R09-OAR-2017-0468; FRL-9974-68—Region 9] Approval of Arizona Air Plan Revisions, Arizona Department of Environmental Quality AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is taking final action to approve a revision to the Arizona Department of Environmental Quality (ADEQ) portion of the Arizona State Implementation Plan (SIP). This revision concerns emissions of lead-bearing fugitive dust from roads, storage piles and other activities associated with the primary copper smelter located in Hayden, Arizona. We are approving a state rule and associated appendix to regulate these emissions under the Clean Air Act (CAA or the Act).

    DATES:

    This rule is effective on March 26, 2018.

    ADDRESSES:

    The EPA has established a docket for this action under Docket ID No. EPA-R09-OAR-2017-0468. All documents in the docket are listed on the http://www.regulations.gov website. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy form. Publicly available docket materials are available through http://www.regulations.gov, or please contact the person identified in the FOR FURTHER INFORMATION CONTACT section for additional availability information.

    FOR FURTHER INFORMATION CONTACT:

    Christine Vineyard, EPA Region IX, (415) 947-4125, [email protected]

    SUPPLEMENTARY INFORMATION:

    Throughout this document, “we,” “us” and “our” refer to the EPA.

    Table of Contents I. Proposed Action II. Public Comments and EPA Responses III. EPA Action IV. Incorporation by Reference V. Statutory and Executive Order Reviews I. Proposed Action

    On November 27, 2017 (82 FR 55966), the EPA proposed to approve the following rule and appendix into the Arizona SIP.

    Local agency Rule No. Rule title Submitted ADEQ R18-2-B1301.01 Limits on Lead-Bearing Fugitive Dust from the Hayden Smelter 04/06/17 ADEQ Appendix 15 Test Methods for Determining Opacity and Stabilization of Unpaved Roads 04/06/17

    We proposed to approve the rule and associated appendix because we determined that they comply with the relevant CAA requirements. Our proposed action contains more information on the rule and associated appendix and our evaluation.

    II. Public Comments and EPA Responses

    The EPA's proposed action provided a 30-day public comment period. During this period, we received three comments. Two commenters raised issues that are outside of the scope of this rulemaking, including forest management, wildfire suppression, and greenhouse-gas and other emissions from wildfires. A third commenter requested that the EPA “regulate the amount of poisonous dust that is kicked up into the air.” As explained in our proposed action, Rule R18-2-B1301.01 establishes requirements to control lead-bearing fugitive dust emissions surrounding the Hayden copper smelter. Our approval of this rule into the Arizona SIP will make these requirements federally enforceable. Commenters did not raise any specific issues germane to the approvability of the rule and appendix.

    III. EPA Action

    No comments were submitted that change our assessment of the rule and associated appendix as described in our proposed action. Therefore, as authorized in section 110(k)(3) of the Act, the EPA is fully approving this rule and associated appendix into the Arizona SIP.

    IV. Incorporation by Reference

    In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the ADEQ rule and associated appendix described in the amendments to 40 CFR part 52 set forth below. The EPA has made, and will continue to make, these documents available through www.regulations.gov and at the EPA Region IX Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

    Therefore, these materials have been approved by the EPA for inclusion in the SIP, have been incorporated by reference by the EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of the EPA's approval, and will be incorporated by reference by the Director of the Federal Register in the next update to the SIP compilation.1

    1 62 FR 27968 (May 22, 1997).

    V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

    • Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

    • Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866;

    • Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);

    • Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);

    • Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

    • Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

    • Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

    • Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

    • Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and

    • Does not provide the EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

    In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or pre-empt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

    Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 23, 2018. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Lead, Particulate matter, Reporting and recordkeeping requirements.

    Dated: February 12, 2018. Alexis Strauss, Acting Regional Administrator, Region IX.

    Part 52, Chapter I, Title 40 of the Code of Federal Regulations is amended as follows:

    PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 1. The authority citation for part 52 continues to read as follows: Authority:

    42 U.S.C. 7401 et seq.

    Subpart D—Arizona 2. Section 52.120 is amended by adding in paragraph (c), under the table heading “Table 2—EPA-Approved Arizona Regulations” a subheading for “Article 13 (State Implementation Plan Rules for Specific Locations)” and entries for “R18-2-B1301.01” and “Appendix 15” after the entry for “Table 6” to read as follows:
    § 52.120 Identification of plan.

    (c) * * *

    Table 2—EPA-Approved Arizona Regulations State citation Title/subject State effective date EPA approval date Additional explanation Arizona Administrative Code *         *         *         *         *         *         * Article 13 (State Implementation Plan Rules For Specific Locations) R18-2-B1301.01 Limits on Lead-Bearing Fugitive Dust from the Hayden Smelter December 1, 2018 [INSERT Federal Register CITATION], February 22, 2018 Submitted on April 6, 2017. Appendix 15 Test Methods for Determining Opacity and Stabilization of Unpaved Roads May 7, 2017 [INSERT Federal Register CITATION], February 22, 2018 Submitted on April 6, 2017. *         *         *         *         *         *         *
    [FR Doc. 2018-03526 Filed 2-21-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2017-0314; FRL-9972-04] Methyl-alpha-D-mannopyranoside (Alpha Methyl Mannoside); Exemption From the Requirement of a Tolerance AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    This regulation establishes an exemption from the requirement of a tolerance for residues of the biochemical methyl-alpha-D-mannopyranoside (alpha methyl mannoside) in or on all raw agricultural commodities when applied/used as a plant growth regulator. BRANDT iHammer submitted a petition to EPA under the Federal Food, Drug, and Cosmetic Act (FFDCA), requesting an exemption from the requirement of a tolerance. This regulation eliminates the need to establish a maximum permissible level for residues of alpha methyl mannoside.

    DATES:

    This regulation is effective February 22, 2018. Objections and requests for hearings must be received on or before April 23, 2018, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION).

    ADDRESSES:

    The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2017-0314, is available at http://www.regulations.gov or at the Office of Pesticide Programs Regulatory Public Docket (OPP Docket) in the Environmental Protection Agency Docket Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301 Constitution Ave. NW, Washington, DC 20460-0001. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OPP Docket is (703) 305-5805. Please review the visitor instructions and additional information about the docket available at http://www.epa.gov/dockets.

    FOR FURTHER INFORMATION CONTACT:

    Robert McNally, Biopesticides and Pollution Prevention Division (7511P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001; main telephone number: (703) 305-7090; email address: [email protected]

    SUPPLEMENTARY INFORMATION:

    I. General Information A. Does this action apply to me?

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

    • Crop production (NAICS code 111).

    • Animal production (NAICS code 112).

    • Food manufacturing (NAICS code 311).

    • Pesticide manufacturing (NAICS code 32532).

    B. How can I get electronic access to other related information?

    You may access a frequently updated electronic version of 40 CFR part 180 through the Government Printing Office's e-CFR site at http://www.ecfr.gov/cgi-bin/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl. To access the OCSPP test guidelines referenced in this document electronically, please go to http://www.epa.gov/ocspp and select “Test Methods and Guidelines.”

    C. How can I file an objection or hearing request?

    Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2017-0314 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before April 23, 2018. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

    In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2017-0314, by one of the following methods:

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

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

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

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

    II. Background and Statutory Findings

    In the Federal Register of December 4, 2017 (82 FR 57193) (FRL-9970-76), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide tolerance petition (PP 6F8506) by BRANDT iHammer, 479 Village Park Drive, Powell OH, 43065. The petition requested that 40 CFR part 180 be amended by establishing an exemption from the requirement of a tolerance for residues of alpha methyl mannoside. That document referenced a summary of the petition prepared by the petitioner, BRANDT iHammer, which is available in the docket, EPA-HQ-OPP-2017-0314, at http://www.regulations.gov. There were no comments received in response to the notice of filing.

    Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the exemption is “safe.” Section 408(c)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Pursuant to FFDCA section 408(c)(2)(B), in establishing or maintaining in effect an exemption from the requirement of a tolerance, EPA must take into account the factors set forth in FFDCA section 408(b)(2)(C), which require EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . . ” Additionally, FFDCA section 408(b)(2)(D) requires that the Agency consider “available information concerning the cumulative effects of a particular pesticide's residues” and “other substances that have a common mechanism of toxicity.”

    EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. First, EPA determines the toxicity of pesticides. Second, EPA examines exposure to the pesticide through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings.

    III. Toxicological Profile

    Consistent with FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action and considered its validity, completeness and reliability, and the relationship of this information to human risk. Given that no toxic endpoints were identified for alpha methyl mannoside, consideration of the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children is not necessary for this biochemical pesticide.

    A. Overview of Methyl-alpha-D-mannopyranoside (alpha methyl mannoside)

    Methyl-alpha-D-mannopyranoside (alpha methyl mannoside) is a naturally occurring monosaccharide (simple sugar), that is ubiquitous in plant tissue in the form of mannose polymers. Alpha methyl mannoside exposure occurs naturally via diet from the breakdown of mannose polymers present in a variety of plant-based foods, with the highest concentrations found in guar gum, a common food additive of thickening and texture in baked goods, dairy items, meats and condiments, and in coffee. Alpha methyl mannoside appears to have a low toxicity profile and is not mutagenic. Alpha methyl mannoside has been recently found to regulate plant growth by modulating glycoconjugation to lectins in plants. As a pesticide, alpha methyl mannoside appears to stimulates the growth and development of a range of crops including vegetables (leafy, Brassica leafy, cucurbit, fruiting), alfalfa, blueberries, cherries, corn, cotton, grapes, onions, peanuts, potatoes, sweet potatoes, and nonfood crops such as bedding plants cut flowers, ornamentals, and turf. Submitted information/data show that when applied to the root, shoot or seed of targeted plants, alpha methyl mannoside functions by displacing glucose bond to lectin. The data/information further show that release of glucose in the plant results in increased plant growth including increased yields of fruit, flower growth and turgidity in turf. In pesticide products, proposed application of alpha methyl mannoside is at rates ranging from 6 to 20 fl. oz. per acre for food crops and 0.1 to 1.13% for nonfood crops. At these rates, the use of alpha methyl mannoside should not likely result in significant residues, environmental persistence or bioaccumulation.

    B. Biochemical Pesticide Toxicology Data Review for Methyl-alpha-D-mannopyranoside

    All applicable toxicology data requirements supporting the petition to establish an exemption from the requirement of a tolerance for the use of alpha methyl mannoside as an active ingredient in or on food commodities, when used in accordance with label direction and good agricultural practices, have been fulfilled. Based on the submitted data and the results of the Agency-developed dietary exposure modeling database DEEM-FCID (version 3.16), dietary exposure to alpha methyl mannoside is not anticipated and there are no human health risks of concern associated with alpha methyl mannoside. Acute studies on alpha methyl mannoside show that this naturally occurring monosaccharide falls within Toxicology Category IV for: Acute oral toxicity, Acute dermal toxicity, Primary eye irritation, and Primary dermal irritation. Alpha methyl mannoside is not a dermal sensitizer. Waivers were granted for subchronic toxicology studies including the 90-day Dermal study, 90-day Inhalation study and Developmental toxicity study. For a more detailed summary of the data upon which EPA relied, please refer to the document entitled, “Federal Food, Drug, and Cosmetic Act (FFDCA) Considerations for Methyl-alpha-D-mannopyranoside (Alpha Methyl Mannoside)” December 5, 2017, available in the docket for this action (EPA-HQ-OPP-2017-0314).

    IV. Aggregate Exposures

    In examining aggregate exposure, FFDCA section 408 directs EPA to consider available information concerning exposures from the pesticide residue in food and all other non-occupational exposures, including drinking water from ground water or surface water and exposure through pesticide use in gardens, lawns, or buildings (residential and other indoor uses).

    A. Dietary Exposure

    An aggregate risk assessment for alpha methyl mannoside for dietary (food and drinking water) exposures was not conducted as no toxicological endpoints have been identified in the toxicity database.

    B. Other Non-Occupational Exposure

    Other non-occupational exposure to alpha methyl mannoside from pesticidal use is not expected to occur as alpha methyl mannoside biodegrades rapidly once applied which would preclude significant post-application exposure. Exposure is further minimized by the relatively low application rates proposed for this biochemical. There are no residential uses for Methyl-alpha-D-mannopyranoside. This biochemical is intended for agricultural, ornamental and turf crop use only. Therefore, the Agency does not anticipate residential exposure.

    V. Cumulative Effects From Substances With a Common Mechanism of Toxicity

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

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

    VI. Determination of Safety for U.S. Population, Infants and Children

    FFDCA section 408(b)(2)(C) provides that, in considering the establishment of a tolerance or tolerance exemption for a pesticide chemical residue, EPA shall assess the available information about consumption patterns among infants and children, special susceptibility of infants and children to pesticide chemical residues, and the cumulative effects on infants and children of the residues and other substances with a common mechanism of toxicity. In addition, FFDCA section 408(b)(2)(C) provides that EPA shall apply an additional tenfold (10X) margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure, unless EPA determines that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the Food Quality Protection Act Safety Factor. In applying this provision, EPA either retains the default value of 10X, or uses a different additional or no safety factor when reliable data are available to support a different additional or no safety factor.

    As part of its qualitative assessment, EPA evaluated the available toxicity and exposure data on alpha methyl mannoside and considered its validity, completeness, and reliability, as well as the relationship of this information to human risk. EPA considers the toxicity database to be complete and has identified no residual uncertainty with regard to prenatal and postnatal toxicity or exposure. No hazard was identified in the available studies; therefore, EPA concludes that there are no threshold effects of concern to infants, children, or adults from alpha methyl mannoside. As a result, EPA concludes that no additional margin of exposure (safety) is necessary.

    VII. Other Considerations A. Analytical Enforcement Methodology

    An analytical method is not required for enforcement purposes since the Agency is establishing an exemption from the requirement of a tolerance without any numerical limitation.

    B. International Residue Limits

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

    The Codex has not established a MRL for alpha methyl mannoside.

    VIII. Conclusions

    Based on its assessment of Methyl-alpha-D-mannopyranoside (alpha methyl mannoside or alpha methyl mannoside), EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children, from aggregate exposure to alpha methyl mannoside. Therefore, an exemption is established for residues of alpha methyl mannoside on all raw agricultural commodities when used in accordance with label directions and good agricultural practices.

    IX. Statutory and Executive Order Reviews

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

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

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

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

    X. Congressional Review Act

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

    List of Subjects in 40 CFR Part 180

    Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.

    Dated: February 2, 2018. Richard P. Keigwin, Jr., Director, Office of Pesticide Programs.

    Therefore, 40 CFR chapter I is amended as follows:

    PART 180—[AMENDED] 1. The authority citation for part 180 continues to read as follows: Authority:

    21 U.S.C. 321(q), 346a and 371.

    2. Add § 180.1352 to subpart D to read as follows:
    § 180.1352 Methyl-alpha-D-mannopyranoside (Alpha methyl mannoside); exemption from the requirement of a tolerance.

    Residues of the biochemical pesticide Methyl-alpha-D-mannopyranoside (alpha methyl mannoside) are exempt from the requirement of a tolerance in or on all raw agricultural commodities.

    [FR Doc. 2018-03671 Filed 2-21-18; 8:45 am] BILLING CODE 6560-50-P
    FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 76 [MB Docket No. 12-217; FCC 17-120] Cable Television Technical and Operational Standards AGENCY:

    Federal Communications Commission.

    ACTION:

    Final rule.

    SUMMARY:

    In this document, we modernize the Commission's signal leakage and signal quality rules that apply to cable operators and other MVPDs and reflect the cable industry's transition from analog to digital systems. These rules are intended to make sure that cable systems do not leak signals that could interfere with other services and ensure that subscribers receive high-quality picture and sound.

    DATES:

    These rules are effective April 23, 2018, except the amendments to §§ 76.105(b) introductory text, 76.601(b)(1), 76.1610(f) and (g), and 76.1804 introductory text, which contain modified information collection requirements that have not been approved by OMB, subject to the Paperwork Reduction Act. The Federal Communications Commission will publish a document in the Federal Register announcing the effective date upon OMB approval. The incorporation by reference of certain publications listed in the rule is approved by the Director of the Federal Register as of April 23, 2018.

    FOR FURTHER INFORMATION CONTACT:

    For additional information on this proceeding, contact Jeffrey Neumann, [email protected], of the Media Bureau, 202-2046 or Brendan Murray, [email protected], of the Media Bureau, Policy Division, (202) 418-1573.

    For additional information concerning the information collection requirements contained in this document, send an email to [email protected] or contact Cathy Williams on (202) 418-2918.

    SUPPLEMENTARY INFORMATION:

    This is a summary of the Commission's Report and Order, FCC 17-120, adopted on September 22, 2017 and released on September 25, 2017. The full text of these documents is available for public inspection and copying during regular business hours in the FCC Reference Center, Federal Communications Commission, 445 12th Street SW, CY-A257, Washington, DC 20554. These documents will also be available via ECFS (http://www.fcc.gov/cgb/ecfs/). (Documents will be available electronically in ASCII, Word 97, and/or Adobe Acrobat.) The complete text may be purchased from the Commission's copy contractor, 445 12th Street SW, Room CY-B402, Washington, DC 20554. To request these documents in accessible formats (computer diskettes, large print, audio recording, and Braille), send an email to [email protected] or call the Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

    With this Report and Order (Order), we take another step toward modernizing our rules to reflect current technologies. Specifically, we update our signal leakage and signal quality rules that apply to cable operators to reflect the cable industry's transition from analog to digital systems.

    In 2012, the Commission adopted the Digital Cable Standards NPRM, 77 FR 61351, to seek comment on proposed digital “proof of performance” (i.e., signal quality) rules, signal leakage rules, and updates and corrections to our Part 76 rules. As the Commission explained in that NPRM, the purpose of the proof-of-performance rules is to require cable operators to deliver good-quality video and audio to subscribers. The Commission's authority for adopting such rules stems from Section 624 of the Communications Act of 1934, as amended (the “Act”). The signal leakage rules prevent cable systems from emitting signals that can interfere with radio services, including certain aeronautical communication services.

    The Commission originally adopted the current proof-of-performance and signal leakage rules before the advent of digital cable service, which is now widespread. According to SNL Kagan, almost 97 percent of cable video customers subscribe to digital service, and all major operators provide digital service. As a technical matter, our existing signal quality and interference rules are inapplicable to the digital technologies that cable operators use today. The Commission has not, to date, provided clear guidance on how to ensure digital signal quality and safeguard against digital systems leaking electromagnetic signals into the aeronautical bands. Therefore, in the Digital Cable Standards NPRM, the Commission proposed to update its technical rules to incorporate standards and procedures that cable operators and local franchising authorities (LFAs) could use to test signal quality and signal leakage on digital cable systems.

    The Commission's analog proof-of-performance rules currently include testing requirements, technical standards, testing methods, recordkeeping requirements, and procedures to resolve complaints about signal quality to ensure that cable operators provide their subscribers with good quality signals. In the Digital Cable Standards NPRM, the Commission proposed to replicate this framework by adopting similar rules that would apply to digital cable service. Specifically, the Commission proposed to require Quadrature Amplitude Modulation (QAM) based digital cable systems to test signals in accordance with the Society of Cable Telecommunications Engineers (SCTE) Digital Cable Network Interface Standard, SCTE 40 and maintain records that demonstrate the results of such tests. The Commission sought comment on standards or guidance for testing cable systems that do not rely on QAM because non-QAM systems rely on varied technologies, and the Commission was not aware of any industry standards that non-QAM operators could use to test their signal quality. Accordingly, the Commission sought comment on an alternative proposal under which non-QAM providers would file a proof-of-performance plan with the Commission. The Commission also asked whether there were “any entities currently analyzing and developing standards for visual signal quality,” or whether a subjective analysis of visual signal quality could be used to demonstrate proof-of-performance.

    As the Commission explained in the Digital Cable Standards NPRM, cable systems have the potential to interfere with over-the-air users of spectrum if the cable operator does not properly maintain its plant. The Commission's existing rules are designed to minimize interference to aircraft communications, and include yearly testing and reporting requirements. In the Digital Cable Standards NPRM, the Commission proposed to add new interference standards that would apply to digital signals to accompany the existing analog signal interference standards. The proposed digital standards would provide protection to aircraft communication from digital cable plant signal leakage that is equivalent to that provided via our existing analog standards. The Commission also sought comment on whether to make other modifications to the rules to protect other frequencies based on the increased bandwidth of modern cable systems.

    The Commission also proposed updates to Part 76 of our rules. In the Digital Cable Standards NPRM, the Commission proposed to make necessary updates to various standards, reorganize certain sections of Part 76 to make them easier to read, make numerous rule corrections, and remove numerous obsolete rules and references from the Code of Federal Regulations. These changes are minor and non-substantive and intended to make it easier to comprehend and comply with the Commission's cable rules.

    As the Commission proposed in the Digital Cable Standards NPRM, we will require cable operators to adhere to SCTE 40, the technical standard that ensures that cable operators provide “good quality” signals to their subscribers. We decline, however, to adopt the proof-of-performance testing and recordkeeping rules proposed in the Digital Cable Standards NPRM. The record and the Commission's log of consumer complaints indicate that there is not a continuing pattern of technical problems with digital signals as historically existed with analog signals. We attribute this, in part, to the process of error correction that the QAM standard uses; it generally ensures that digital signals have suitable picture and audio quality even under suboptimal conditions. Therefore, we conclude that a testing regime for digital service is not necessary, and that an operator's adherence to SCTE 40 is sufficient to ensure consumers are receiving good quality signals. We also decline at this time to adopt performance standards for non-QAM cable systems pending further developments and recommendations from industry standards bodies. Below, we discuss (1) why the SCTE 40 standard is the proper standard to ensure quality digital signals for QAM-based cable operators, (2) why we delay adoption of a standard for non-QAM-based cable operators, (3) why a rigid testing regime is unnecessary, and (4) why subjective testing and set-top box requirements are not necessary at this time. We also dismiss as moot pending requests for exemption from our proof-of-performance rules.

    Section 624(e) of the Act requires that the Commission “establish minimum technical standards relating to cable systems' technical operation and signal quality” and “update such standards periodically to reflect improvements in technology.” Pursuant to that mandate, we adopt the Commission's proposal to adopt the SCTE 40 standard. QAM-based cable operators that adhere to this standard provide good-quality signals to consumers, and a rule that requires cable operators to adhere to it will not increase their regulatory burden. SCTE 40, the “Digital Cable Network Interface Standard,” was developed by the Society of Cable Telecommunications Engineers to define the characteristics and specifications of interface between a cable system and commercially available digital cable products, such as set-top boxes. The overwhelming majority of cable operators use QAM to modulate their digital services, but as the Commission explained in the Digital Cable Standards NPRM, QAM use can vary across systems: “Unlike analog cable transmission . . . QAM is not uniform and may appear in a variety of configurations such as 64 QAM, 256 QAM, and potentially 1024 QAM, each requiring different performance standards.” The SCTE 40 standard recognizes these differences and incorporates different performance standards for each QAM configuration. Moreover, QAM-based cable operators have followed the SCTE 40 standard for more than a decade because the standard is an essential part of the cable industry's reliance on CableCARD. Therefore, conforming to the standard should not add any additional burdens on cable operators and commenters generally supported its use for this purpose. The standard sets relative channel power limits, carrier-to-noise ratios, and adjacent-channel characteristics that reflect the minimum technical standards necessary to ensure that cable operators deliver quality QAM signals to their subscribers. The standard is for free online at http://www.scte.org/SCTEDocs/Standards/SCTE%2040%202016.pdf, and therefore we conclude that it is reasonably available. For these reasons, we conclude that SCTE 40 provides the proper “minimum technical standards relating to cable systems' technical operation and signal quality,” as required by Section 624(e) of the Act. Consistent with Section 624(e)'s requirement that we update the standards in our rules “periodically to reflect improvements in technology” and to reflect the technology that cable operators rely on today, we incorporate the current version of SCTE 40, which was adopted in 2016.

    The City of New York suggests that we set a timeframe for when we will next review these standards. We agree that updating these performance standards in a timely manner is important, but because the SCTE standard is not updated on a set schedule, we do not believe that we need to develop a rigid timeline for review. The SCTE originally adopted the SCTE 40 standard in 2001, and updated it in 2003, 2004, 2011, and 2016. If the SCTE updates the standard again, and the standard does not change fundamentally, we delegate rulemaking authority to the Media Bureau to update the Commission's rules to reference the newest standard.

    Non-QAM Based Proof of Performance Standard

    We will delay adopting a proof-of-performance standard for non-QAM cable providers, such as internet Protocol television (IPTV)-based providers, because the record before us does not include any minimum technical standards that could apply to non-QAM signals. As stated above, in the Digital Cable Standards NPRM, the Commission sought comment on whether any industry standards exist for signal quality in non-QAM digital cable systems. Although the National Telecommunications Cooperative Association and The Organization for the Promotion and Advancement of Small Telecommunications Companies (NTCA/OPASTCO) reference certain standards that “may apply to IPTV systems,” they note that “these best practices and standards are relatively new, and a number of [rural local exchange carrier] IPTV systems utilizing many different types of equipment and software were deployed prior to their development and release” so they may not apply to all IPTV systems. No other comments recommended a standard that could apply to these systems. Accordingly, we believe it would be better to allow industry more time to reach consensus on a non-QAM-specific proof-of-performance standard before adopting a standard for regulatory purposes. When parties can identify and recommend applicable proof-of-performance standards, then we will revisit this issue. We note that in the meantime, under our existing rules non-QAM providers must work with LFAs to address any complaints regarding signal quality.

    We will not require non-QAM operators to submit proof-of-performance plans for Commission approval, which is a scheme upon which the Commission sought comment in the Digital Cable Standards NPRM. Cable operators that use technologies other than QAM to deliver video strongly oppose that process as overly burdensome; they argue that non-QAM operators are small and do not have in-house resources to develop signal quality standards and testing regimes in the absence of an industry standard. We find commenters' arguments persuasive; this process would put too large a burden on small cable operators, and likely would result in a variety of metrics rather than a standard as Section 624(e) requires.

    We are not persuaded by NATOA's argument that this case-by-case scheme would “provide regulatory clarity, promote competitive neutrality, and ensure that subscribers to such non-QAM systems enjoy technical and signal quality protections comparable to those enjoyed by subscribers to more traditional QAM-based systems.” To the contrary, such a scheme would provide no regulatory clarity because each operator would need to develop a testing plan without any guidance from the Commission. It would impose heavier burdens on non-QAM providers than their QAM-based competitors that will follow SCTE 40 rather than develop performance standards in-house.

    We also reject NATOA's proposal that “[e]ach channel tested for proof-of-performance should be observed for at least two minutes and the results of this observation recorded” by the cable operator. A regime that required that proposal would be subjective, non-technical, and would not be standardized. Accordingly, we do not believe that such a proposal is the type of “minimum technical standard” contemplated under Section 624(e).

    We conclude that we need not require the testing regime (and attendant certification and recordkeeping requirements) proposed in the Digital Cable Standards NPRM. We come to this conclusion because cable operators have demonstrated that if they design, deploy, and maintain systems that meet or exceed the specifications in SCTE 40, then they are able to deliver good-quality video and audio to their subscribers without testing. As ACA and NCTA point out, the error correction inherent in QAM service helps ensure consistent quality for subscribers. In addition, digital signals are less susceptible to errors introduced by noise and the picture degradation that amplifiers add to analog signals. Nonetheless, some LFA commenters reported problems with pixelation, tiling, and loss of audio. These appear to be isolated incidents, rather than a continuation of a trend of poor signal quality that existed when cable operators delivered analog signals, and the Commission has received few complaints about cable operators' signal quality. Even if there were a trend of poor quality, the record does not reflect that testing would yield any additional information necessary to ensure quality signals.

    Moreover, according to the record, the costs associated with testing are high and outweigh the benefits that a federal testing mandate would provide. NCTA states that due to equipment and personnel costs, testing for compliance with SCTE 40 can cost “just under a million dollars to multiple millions of dollars simply to conduct a one-time test” of all of a large cable operator's systems, and that testing can be disruptive to subscribers. NATOA argues that “periodic test reports generate data that assist local authorities with complaint resolution, monitoring performance, and other regulatory responsibilities.” A rigid testing mandate is not necessary to achieve these benefits. Section 76.1713 of our rules requires cable operators to “establish a process for resolving complaints from subscribers about the quality of the television signal delivered,” and maintain aggregate data about those complaints for purposes of Commission and LFA review. This rule section already delivers the benefits that NATOA enumerates without a costly, rigid testing requirement.

    Nor does the statute require a testing regime. Rather, the statute directs us to establish “minimum technical standards,” and neither the Act nor the legislative history indicates that Congress wanted the Commission to require tests in the absence of service problems. When a consumer complains about signal quality, the cable operator and the local franchisor are better suited than the Commission to work to resolve the problem using industry-standard methods and recommended practices. We invite LFAs and others to keep us informed about the complaints that they receive from their residents; we will consider adopting more rigorous requirements if systemic signal quality problems are demonstrated.

    Finally, with respect to analog testing, we adopt the Commission's proposal to “simplify the formula by which . . . operators determine how many channels must be tested to ensure compliance with the proof-of-performance rules.” Specifically, the Commission proposed to require cable operators to test five channels on systems with a channel capacity of less than 550 MHz, and to require cable operators to test ten channels on systems with a channel capacity of 550 MHz or more. NCTA is the only commenter to address this proposal and “agree[s] with the effort to reduce the number of channels that must be tested to demonstrate compliance with the technical standards.” We adopt this rule for the same reasons the Commission proposed it: The rule change “simplifies compliance for all operators and will continue to ensure that a sufficient representative sample of channels is tested to accurately reflect the experience consumers receive.”

    We also decline to adopt subjective picture quality and set-top box quality rules. In the Digital Cable Standards NPRM, the Commission noted that cable operators could reduce a channel's visual quality via compression even if the signal itself remains strong and error free. To address this concern, the Commission sought comment on whether to adopt a subjective visual picture quality and auditory sound quality test to ensure that digital cable subscribers receive high quality television images and sound. The Commission also sought comment on whether set-top boxes should play a role in how we assess picture quality of digital cable signals, because set-top boxes can affect the quality of the picture that the viewer sees. We find that the record is insufficient to take any action on these two items, producing neither standards for perceived video quality nor the output of set-top boxes. As some parties point out, subjective tests are, by their nature, difficult to administer. Moreover, the record has not demonstrated that there is a serious problem regarding picture quality that we need to address. Therefore, we decline to extend proof-of-performance beyond the signal quality provided to the consumer's home by the MVPD. We also reject the suggestion that we require proof-of-performance tests for CableCARDs because, as NCTA points out, CableCARDs are responsible solely for decryption of cable programming and do not affect signal quality or display.

    Six cable operators have filed requests for exemption from our proof-of-performance rules because those operators cannot apply the analog standards to their digital systems. To the extent these operators utilize QAM-based technologies, as discussed above, we conclude that their adherence to SCTE 40 ensures good signal quality. Accordingly, we dismiss as moot those requests for exemption from the proof-of-performance rules consistent with this order and instruct these cable operators and the rest of the cable industry deploying QAM-based technologies to adhere to SCTE 40 2016, as required by our new proof of performance rule.

    For the request pertaining to a non-QAM-based system, and for other operators who use non-QAM and non-analog technologies, such as those based on internet Protocol video over fiber-optics, we will simply retain the duty of those operators to establish and use a process to resolve customer complaints for now and will not require them to adhere to SCTE 40, which does not align technically with the design of their systems. As we explain above, we believe it would be better to allow industry more time to reach consensus on a non-QAM-specific proof-of-performance standard before adopting a standard for regulatory purposes since the record before us does not include any minimum technical standards that could apply to non-QAM signals. If the Commission establishes metrics-based or testing-based rules in the future to cover those non-QAM technologies, those operators will be subject to those rules. As a result, we dismiss as moot the petition for exemption filed by a non-QAM system operator.

    In this Section, we adopt the signal leakage rules for MVPDs utilizing digital signals on coaxial cable systems proposed in the Digital Cable Standards NPRM with minor modifications. In the NPRM, the Commission explained the purpose of our cable signal leakage rules: MVPDs that operate coaxial cable plants (“coaxial cable systems”) use frequencies allocated for myriad over-the-air services within their system. Under ideal circumstances, those signals are confined within the cable system and do not cause interference with the over-the-air users of those frequencies. However, under certain circumstances, a coaxial cable plant can “leak” and interfere with over-the-air users of spectrum.

    To prevent this interference, the Commission's rules impose four major requirements. First, MVPDs that operate coaxial cable plants (referred to as simply “MVPDs” below) must notify the Commission and provide geographic information about their systems before they use frequencies in the aeronautical radio frequency bands above an average power level equal to or greater than 10-4 watts across a 25 kHz bandwidth in any 160 microsecond time period. The Commission refers to this requirement as the Aeronautical Frequency Notification (“AFN”) requirement. Second, MVPDs must offset their channels to minimize interference from analog coaxial cable systems to aircraft communication and aircraft navigation services, such as the Instrument Landing System and VHF Omnidirectional Range service. Third, MVPDs must ensure that their system design, installation and operation comply with the rules and conduct compliance testing four times per year. Finally, MVPDs must calculate their cumulative signal leakage and report their results to the Commission once per year.

    These requirements protect against interference from analog signals, but have not been updated to protect against interference from digital signals. Therefore, in the Digital Cable Standards NPRM, the Commission proposed to update the signal leakage rules to apply to digital operations. First, the Commission proposed a trigger of 10-5 watts average power over a 30 kHz bandwidth in any 2.5 millisecond time period for the AFN requirement with respect to digital signals. The Commission explained that this proposed trigger would impose only limited burdens on cable operators because it would affect a small number of systems and was vital to prevent interference to aeronautical users and international satellite search and rescue services. Second, the Commission proposed not to apply the channel frequency offset requirement to digital signals. The Commission reasoned that the analog channel frequency offset does not make sense to apply to digital signals because the offset is meant to offset the peak power of a signal from interfering with aeronautical frequencies, but digital signals, unlike analog signals, distribute their power evenly throughout the 6 MHz channel. Third, because the Commission proposed not to adopt a digital signal offset, the Commission proposed to correlate the maximum leakage level for digital signals to that of analog signals, and to require digital leakage in excess of this threshold to be noted and repaired within a reasonable time. The Commission reasoned that this change would help prevent harmful interference due to cable signal leakage. As discussed below, we adopt slightly revised versions of each of these proposals.

    Finally, the Commission sought comment on miscellaneous issues, each of which is discussed below, including whether to change the signal leakage testing methodology, whether and how to test for leakage in bands above 400 MHz, and a proposal to modify the formula for calculating the cumulative leakage index (“CLI”).

    We adopt the digital AFN filing trigger proposed in the Digital Cable Standards NPRM (10-5 watts over a 30 kHz bandwidth in any 2.5 millisecond time period), and clarify that this filing trigger will apply to digital signals only; the analog trigger will not change. The Commission tentatively concluded in the NPRM that the power threshold should remain unchanged when considering interference from digital, rather than analog, coaxial cable systems, but that the measurement window needed to be adapted. The Commission based its proposal on the fact that unlike analog signals, digital signals distribute power relatively evenly throughout the channel and, therefore, throughout the bandwidth of the devices receiving the interference.

    NCTA suggests two revisions to the Commission's proposal. First, NCTA argues that the Commission's proposed rule would require cable systems that “operate aural subcarriers of analog television channels at levels that fall between 10-4 watts and 10-5 watts” to file AFNs. NCTA asserts that requiring operators that carry analog signals at those levels to file AFNs would have no effect on public safety, and would burden cable operators. Instead NCTA suggests that the new power level trigger should apply to digital signals only, and the analog level should remain unchanged. NCTA's recommendation is consistent with the intent of the Commission's proposal in the Digital Cable Standards NPRM, which was to trigger the AFN filing requirement only for systems that had withdrawn their AFNs because they operate at a power level lower than the analog threshold, but operate at a power higher than the digital threshold that we adopt here. Therefore, we adopt NCTA's recommendation.

    NCTA also suggests that the Commission align the power threshold for digital signal notifications with the power thresholds discussed in Section III.B.3 below by lowering the AFN threshold by a commensurate amount. We decline to adopt this recommendation. We believe that the threshold for giving the Commission notice of a system's operation, location, and reach should be keyed to the protection of the Marine and Aeronautical Distress and Safety frequency. The burden of filing a one-time notification is low, and the benefit to public health and safety of being able to identify potential sources of interference is significant.

    We exempt all-fiber-optic cable systems from the AFN filing trigger and instead allow cable operators with such systems to notify the Commission that the system operates below the relevant power level. Verizon asserts that the signal leakage rules should not apply to operators that, like Verizon, rely primarily on fiber optic systems that are less likely to leak electromagnetic signals. Verizon explains that its cable service is “delivered over a fiber optic network that delivers signals to customer premises over fiber optic cables using optical wavelengths,” and that “[s]uch a network would not represent any threat of interference, because fiber optic cables do not use RF frequencies.” It further explains that its optical network terminal “has been designed and built in a manner that operates at a low power level—below the thresholds that would trigger testing under current signal leakage testing standards.” We agree that all-fiber-optic systems pose less interference risk than other systems and should be subject to less burdensome signal leakage requirements. Specifically, because fiber optic systems with optical network terminals at the customer premises pose minimal risk of signal leakage, such systems need only report in the existing Form 321, Aeronautical Frequency Notification, that their power level is sufficiently low to qualify for a filing exemption. Such cable operators may choose this option instead of complying with the digital AFN filing trigger. Cable operators that do not have optical network terminals at the customer premises or are unable to certify that they operate below a digital threshold of 37.55 dBmV must comply with the digital AFN filing trigger. We find that this approach will appropriately enable cable operators that are unlikely to cause harmful interference to continue their current practice with regard to signal leakage reporting, while still ensuring that the Commission is informed of potential interference risks.

    As proposed in the Digital Cable Standards NPRM, we decline to apply the channel frequency offset requirements that apply to analog signals to digital signals. Analog television channel power levels are significantly higher at the center frequencies of the subcarriers contained within the channel. Digital television channel power levels do not share this characteristic because a digital signal does not concentrate all of its power in a narrow carrier. For this reason, the Commission's rules require cable operators to offset their subcarriers from lining up directly with Instrument Landing System (ILS), VHF Omnidirectional Range service (VOR), or communications carriers. With the offset, when a signal leaks it will not align with those important carriers and it will not impact the protected signal as severely as it would without an offset. In the Digital Cable Standards NPRM, the Commission proposed not to apply the channel frequency offset requirement to digital signals because digital signals do not have analog signals' peak power characteristic. Commenters agreed with this reasoning. For the same reasons that the Commission offered in the NPRM, we conclude that the frequency offset requirement would be useless with respect to digital signals.

    We adopt rules for general signal leakage limits and for the cumulative leakage index (CLI) that were proposed in the NPRM, with some modifications to provide cable operators with flexibility in the ways they test to demonstrate compliance. Because we cannot use the offset requirement to ensure that the strongest part of the signal does not interfere with ILS, VOR, or communications carriers, the Commission proposed to correlate the signal leakage limits for digital channels to those for analog channels. Specifically, it proposed to adjust the signal leakage threshold for digital signals to 1.2 dB less than the analog threshold. The Commission reasoned that because a digital signal does not concentrate all of its power in a narrow carrier like an analog signal does and because an aircraft receiver's bandwidth should be no wider than 25 kHz, the resulting increase in potential interference is 1.2 dB. The Commission proposed to amend the general signal leakage rule (including the signal leakage monitoring, logging, and repair rule) and the CLI rules accordingly.

    We adopt the proposed general signal leakage limit that the Commission proposed for digital signals. NATOA and NCTA were the only commenters that addressed the Commission's proposal to make the general signal leakage threshold for digital signals 1.2 dB lower than the analog threshold, and both supported the proposal. For the reasons the Commission provided in the Digital Cable Standards NPRM, we conclude that the 1.2 dB reduction for digital signals is a technically sound proposal, and therefore we adopt it.

    The Commission noted that this change could require cable operators that carry digital signals to obtain more sensitive leakage detection equipment because our rules require regular monitoring of systems that operate in the designated aeronautical communications bands. The Commission sought comment on the burdens that this would impose on cable operators and the extent to which they outweigh the benefits of signal leakage detection and prevention. In response, Arcom Digital, LLC described its low-cost QAM Snare system, which is sensitive enough to detect “QAM channel leakage signals that are as low as 0.13µV/m at 100 MHz and as low as 0.89µV/m at 700 MHz.” NCTA described an alternative test methodology “that would allow cable operators to continue to use existing signal leakage detection equipment with the same sensitivity, measurement procedures, calculations and reporting.” Under NCTA's proposal (the “David Large Methodology”), the cable operator simply carries a test signal that has an average power level equal to the power level of the strongest analog cable television carrier on the cable system. To ensure that digital signal leakage is at least 1.2 dB lower than analog signals, the cable operator keeps all digital signal power levels at least 1.2 dB lower than the test signal. Because Arcom Digital, LLC and NCTA have demonstrated multiple ways to achieve our intended result, we grant NCTA's request that the Commission not impose any specific test methodology, but rather adopt a flexible rule that would allow a cable operator to “demonstrate compliance using a different methodology.” Our results-oriented regulation will ensure that cable operators monitor digital cable signal leakage in a less burdensome manner than the one we proposed.

    We adopt the level that the Commission proposed to trigger the signal leakage rules, and clarify that proposal as NCTA requests. The Commission proposed to modify the level “at which the [signal leakage] rules become applicable, the threshold at which leaks must be included in the [CLI] calculation, and the maximum leakage and CLI permissible,” for digital signals consistent with the 1.2 dB reduction from the analog signal levels. NCTA states that under the David Large Methodology, “no additional change would be required to [the] CLI calculations since digital power levels would be required to be below the level of the leakage test signal.” We find that NCTA's proposal is consistent with the Commission's reasoning in the Digital Cable Standards NPRM. Therefore, in a scenario where a cable operator maintains digital signals at least 1.2 dB below the analog leakage test signal, the operator may perform an “analog” test on the analog test signal and will be restricted to the maximum CLI for analog signals (64 for I∞). However, we do not require operators to do this, and should they elect to carry digital signals at the same power levels as the analog test signal, or to test the digital signals directly, the reduced “digital” CLI applies.

    We decline to adjust our signal leakage rules at this time to reflect recent increases in the bandwidth that cable systems use. As the Commission noted in the Digital Cable Standards NPRM, the last time the Commission updated the signal leakage rules, “400 MHz was near the upper limit of the bandwidth of coaxial cable systems deployed,” but today “coaxial cable systems routinely deploy in excess of 750 MHz, and deployments of up to 1 GHz exist.” Therefore, the Commission sought comment on potential and actual interference from coaxial cable systems to bands above 400 MHz. While such interference may exist (particularly in the 700 MHz band), there is insufficient evidence on the record to take action at this time.

    We eliminate the I3000 method of calculating CLI as the Commission proposed because cable operators have abandoned it in favor of the more effective I∞ method. The I∞ method of calculating CLI requires cable operators to treat all leaks equally, rather than discounting leaks the further they are from the geographic center of the cable system. In the Digital Cable Standards NPRM, the Commission reasoned that cable systems now cover much larger geographical areas than they did when the Commission first adopted the rules, which can make the I3000 formula an inadequate way to detect significant leaks. We believe that these changes will make it easier to understand and comply with our cable rules. Accordingly, the Commission proposed to limit the application of I3000 to systems with a total geographic diameter of less than 160 km. We received no comments on this proposal, and careful analysis of filings from operators over the last 10 years shows that the overwhelming majority of operators utilize the I∞ calculation. Therefore, in the interest of simplifying both the submission of information to the Commission, and simplifying the analysis of this data, we instead decide to eliminate the I3000 formula. Operators previously using I3000 will find that less data collection is necessary to submit an I∞ calculation, and so we find no reason to continue accepting and analyzing two separate calculation methods.

    In the Digital Cable Standards NPRM, the Commission proposed to “remove references to effective dates that have passed, make editorial corrections, delete obsolete rules, update various technical standards that are incorporated by reference into our rules, and clarify language in Part 76 of our rules.” The proposed changes are non-substantive and were unopposed in the record. Accordingly, we adopt those proposals.1 NATOA recommended several changes to Part 76 of our rules that go beyond our goal of updating our rules and making them easier to follow. These proposals are substantive in nature, and are beyond the stated intent of this proceeding. Moreover, because NATOA's proposed rule changes were not raised for comment in the Digital Cable Standards NPRM, nor a logical outgrowth of the rule changes proposed in that NPRM, there is insufficient notice and comment under the Administrative Procedure Act for the Commission to adopt such proposals.

    1 We update the incorporation by reference in §§ 76.602 and 76.605 to refer to the 2013 version of the standard, CTA-542-D, which replaces CEA-542-B.

    As required by the Regulatory Flexibility Act of 1980, as amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the Notice of Proposed Rule Making (NPRM). The Commission sought written public comment on the proposals in the NPRM, including comment on the IRFA. This present Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.

    This Report and Order allows the Commission to fulfil its congressional mandate to establish “minimum technical standards relating to cable systems' technical operation and signal quality” and “update such standards periodically to reflect improvements in technology,” as stated in the Communications Act. It will reduce malfunctions by setting proof-of-performance rules that require operators to ensure that their systems are consistent with industry standards designed to deliver high quality signals, which means that consumers will receive good quality pictures and sound. The Report and Order also makes modifications throughout Part 76 of the Commission's rules to remove outdated language, correct citations, and make other minor or non-substantive updates.

    Commenters raised concerns that the proposed reporting requirements, which would have required them to develop a signal quality test and file the results of that test with the Commission, would impose an undue burden on small businesses. After analyzing the responses of commenters, the Commission concludes that cable operators who design, deploy, and maintain a system which meets or exceeds the specifications in SCTE 40 will consistently provide a service producing suitable picture and audio quality to subscribers. Rather than imposing testing on cable operators to ensure that they deliver quality service, we instead require that cable operators adhere to the specifications in the widely followed SCTE 40 standard.

    As many commenters highlighted, Quadrature Amplitude Modulated (“QAM”) services are designed with error correction ability which helps to ensure consistent quality for subscribers. Additionally, as opposed to analog, digital signals are far less susceptible to errors introduced by noise and the picture degradation amplifiers add.

    Pursuant to the Small Business Jobs Act of 2010, the Commission is required to respond to any comments filed by the Chief Counsel for Advocacy of the Small Business Administration (SBA), and to provide a detailed statement of any change made to the proposed rules as a result of those comments. The Chief Counsel did not file any comments in response to the proposed rules in this proceeding.

    The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A “small business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA).

    Cable and Other Program Distribution. Since 2007, these services have been defined within the broad economic census category of Wired Telecommunications Carriers; that category is defined as follows: “This industry comprises establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired telecommunications networks. Transmission facilities may be based on a single technology or a combination of technologies.” The SBA has developed a small business size standard for this category, which is: All such firms having 1,500 or fewer employees. According to Census Bureau data for 2007, there were a total of 955 firms in the subcategory of Cable and Other Program Distribution that operated for the entire year. Of this total, 939 firms had employment of 999 or fewer employees, and 16 firms had employment of 1000 employees or more. Thus, under this size standard, the Commission believes that a majority of firms operating in this industry can be considered small.

    Cable Companies and Systems (Rate Regulation Standard). The Commission has also developed its own small business size standards, for the purpose of cable rate regulation. Under the Commission's rules, a “small cable company” is one serving 400,000 or fewer subscribers, nationwide. Industry data indicate that, of 1,076 cable operators nationwide, all but 11 are small under this size standard. In addition, under the Commission's rules, a “small system” is a cable system serving 15,000 or fewer subscribers. Industry data indicate that, of 6,635 systems nationwide, 5,802 systems have under 10,000 subscribers, and an additional 302 systems have 10,000-19,999 subscribers. Thus, under this second size standard, the Commission believes that most cable systems are small.

    Cable System Operators. The Act also contains a size standard for small cable system operators, which is “a cable operator that, directly or through an affiliate, serves in the aggregate fewer than 1 percent of all subscribers in the United States and is not affiliated with any entity or entities whose gross annual revenues in the aggregate exceed $250,000,000.” The Commission has determined that an operator serving fewer than 677,000 subscribers shall be deemed a small operator, if its annual revenues, when combined with the total annual revenues of all its affiliates, do not exceed $250 million in the aggregate. Industry data indicate that, of 1,076 cable operators nationwide, all but 10 are small under this size standard. We note that the Commission neither requests nor collects information on whether cable system operators are affiliated with entities whose gross annual revenues exceed $250 million, and therefore we are unable to estimate more accurately the number of cable system operators that would qualify as small under this size standard.

    Open Video Services. Open Video Service (OVS) systems provide subscription services. The open video system (“OVS”) framework was established in 1996, and is one of four statutorily recognized options for the provision of video programming services by local exchange carriers. The OVS framework provides opportunities for the distribution of video programming other than through cable systems. Because OVS operators provide subscription services, OVS falls within the SBA small business size standard covering cable services, which is “Wired Telecommunications Carriers.” The SBA has developed a small business size standard for this category, which is: All such firms having 1,500 or fewer employees. To gauge small business prevalence for the OVS service, the Commission relies on data currently available from the U.S. Census for the year 2007. According to that source, there were 3,188 firms that in 2007 were Wired Telecommunications Carriers. Of these, 3,144 operated with less than 1,000 employees, and 44 operated with more than 1,000 employees. However, as to the latter 44 there is no data available that shows how many operated with more than 1,500 employees. Based on this data, the majority of these firms can be considered small. In addition, we note that the Commission has certified some OVS operators, with some now providing service. Broadband service providers (“BSPs”) are currently the only significant holders of OVS certifications or local OVS franchises. The Commission does not have financial or employment information regarding the entities authorized to provide OVS, some of which may not yet be operational. Thus, at least some of the OVS operators may qualify as small entities. The Commission further notes that it has certified approximately 45 OVS operators to serve 116 areas, and some of these are currently providing service. Affiliates of Residential Communications Network, Inc. (RCN) received approval to operate OVS systems in New York City, Boston, Washington, DC, and other areas. RCN has sufficient revenues to assure that they do not qualify as a small business entity. Little financial information is available for the other entities that are authorized to provide OVS and are not yet operational. Given that some entities authorized to provide OVS service have not yet begun to generate revenues, the Commission concludes that up to 44 OVS operators (those remaining) might qualify as small businesses that may be affected by the rules and policies adopted herein.

    Satellite Master Antenna Television (SMATV) Systems, also known as Private Cable Operators (PCOs). SMATV systems or PCOs are video distribution facilities that use closed transmission paths without using any public right-of-way. They acquire video programming and distribute it via terrestrial wiring in urban and suburban multiple dwelling units such as apartments and condominiums, and commercial multiple tenant units such as hotels and office buildings. SMATV systems or PCOs are now included in the SBA's broad economic census category, “Wired Telecommunications Carriers,” which was developed for small wireline firms. Under this category, the SBA deems a wireline business to be small if it has 1,500 or fewer employees. Census data for 2007 indicate that in that year there were 1,906 firms operating businesses as wired telecommunications carriers. Of that 1,906, 1,880 operated with 999 or fewer employees, and 26 operated with 1,000 employees or more. Based on this data, we estimate that a majority of operators of SMATV/PCO companies were small under the applicable SBA size standard.

    Under these new rules, cable operators that use QAM to modulate their signals need only comply with the SCTE 40 standard in lieu of testing digital signals. Cable operators will also be required to file Aeronautical Frequency Notifications with the Commission if they operate at a certain power level. These notifications are necessary to ensure that cable operators' signals do not interfere with aeronautical frequencies that are vital to airplane safety and navigation.

    The RFA requires an agency to describe any significant, specifically small business, alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): “(1) the establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities; (3) the use of performance rather than design standards; and (4) an exemption from coverage of the rule, or any part thereof, for such small entities.”

    The Digital Cable Standards NPRM proposed to adopt rules analogous to the Commission's analog proof-of-performance rules which include a testing requirement, technical standards, testing methods, recordkeeping requirements, and procedures to resolve complaints about signal quality. The changes adopted in this Report and Order instead do not impose testing and reporting burdens for digital signals, substantially benefiting smaller businesses, and directly addressing the concerns raised by the comments filed in response to the IRFA. As noted above, because digital signals do not share in the pattern of technical problems which plagued analog services, a rigid periodic testing requirement is not necessary. This item will not impose a significant burden on small cable operators. All QAM-based cable operators already comply with the SCTE 40 standard for signal quality pursuant to the Commission's existing set-top box requirements, and absent complaints from subscribers about signal quality, under the Report and Order cable operators may rely on the standard to ensure proof-of-performance.

    Incorporation by reference: We are incorporating by reference 2 standards in this rule: ANSI/SCTE 40 2016 and CTA-542-D.

    ANSI/SCTE 40 2016 sets relative channel power limits, carrier-to-noise ratios, and adjacent-channel characteristics that reflect the minimum technical standards necessary to ensure that cable operators deliver quality QAM signals to their subscribers and is discussed more fully elsewhere in this preamble. The standard is freely available online at www.scte.org/SCTEDocs/Standards/SCTE%2040%202016.pdf, and therefore we conclude that it is reasonably available.

    CTA-542-D defines the frequency allocations for channel numbers on cable systems and is reasonably available for retail purchase from various sources and from the Consumer Technology Association directly at standards.cta.tech.

    Report to Congress: The Commission will send a copy of the Report and Order, including this FRFA, in a report to Congress pursuant to the Congressional Review Act. In addition, the Commission will send a copy of the Report and Order, including this FRFA, to the Chief Counsel for Advocacy of the SBA. A copy of the Report and Order and FRFA (or summaries thereof) will also be published in the Federal Register.

    The Commission will send a copy of the Report and Order in MB Docket No. 12-217 in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

    Accordingly, it is ordered that, pursuant to the authority found in Sections 1, 4(i), 4(j), 301, 302a, 303, 307, 308, 624, and 624A of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), 301, 302a, 303, 307, 308, 544, and 544a, this Report and Order is adopted.

    It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Report and Order in MB Docket No. 12-217, including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

    It is further ordered that the Commission shall send a copy of this Report and Order in MB Docket No. 12-217 in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

    List of Subjects in 47 CFR Part 76

    Administrative practice and procedure, Cable television, Equal employment opportunity, Incorporation by reference, Political candidates, Reporting and recordkeeping requirements.

    For the reasons set forth in the preamble, the Federal Communications Commission amends part 76 of title 47 of the Code of Federal Regulations as follows:

    PART 76—MULTICHANNEL VIDEO AND CABLE TELEVISION SERVICE 1. The authority citation for part 76 continues to read as follows: Authority:

    47 U.S.C. 151, 152, 153, 154, 301, 302, 302a, 303, 303a, 307, 308, 309, 312, 315, 317, 325, 338, 339, 340, 341, 503, 521, 522, 531, 532, 534, 535, 536, 537, 543, 544, 544a, 545, 548, 549, 552, 554, 556, 558, 560, 561, 571, 572, 573.

    2. Amend § 76.55 by revising the Note to paragraph (d) to read as follows:
    § 76.55 Definitions applicable to the must-carry rules. Note to Paragraph (d):

    For the purposes of this section, for over-the-air broadcast, a good quality signal shall mean a signal level of either −45 dBm for analog VHF signals, −49 dBm for analog UHF signals, or −61 dBm for digital signals (at all channels) at the input terminals of the signal processing equipment.

    3. Amend § 76.56 by revising paragraph (a)(1)(i) and the introductory text to paragraph (b) to read as follows:
    § 76.56 Signal carriage obligations.

    (a) * * *

    (1) * * *

    (i) Systems with 12 or fewer usable activated channels, as defined in § 76.5(oo), shall be required to carry the signal of one such station;

    (b) Carriage of local commercial television stations. A cable television system shall carry local commercial broadcast television stations in accordance with the following provisions:

    4. Revise § 76.57(e) to read as follows:
    § 76.57 Channel positioning.

    (e) At the time a local commercial station elects must-carry status pursuant to § 76.64, such station shall notify the cable system of its choice of channel position as specified in paragraphs (a), (b), and (d) of this section. A qualified NCE station shall notify the cable system of its choice of channel position when it requests carriage.

    5. Revise § 76.64(a) to read as follows
    § 76.64 Retransmission consent.

    (a) No multichannel video programming distributor shall retransmit the signal of any commercial broadcasting station without the express authority of the originating station, except as provided in paragraph (b) of this section.

    6. Amend § 76.105 by revising the introductory text to paragraph (b) to read as follows:
    § 76.105 Notifications.

    (b): Broadcasters entering into contracts which contain syndicated exclusivity protection shall notify affected cable systems within sixty calendar days of the signing of such a contract. A broadcaster shall be entitled to exclusivity protection beginning on the later of:

    7. Amend § 76.309 by revising the introductory text to paragraph (c) to read as follows:
    § 76.309 Customer service obligations.

    (c) Cable operators are subject to the following customer service standards:

    8. Revise § 76.601(b) to read as follows:
    § 76.601 Performance tests.

    (b) The operator of each cable television system that operates NTSC or similar channels shall conduct performance tests of the analog channels on that system at least twice each calendar year (at intervals not to exceed seven months), unless otherwise noted below. The performance tests shall be directed at determining the extent to which the system complies with all the technical standards set forth in § 76.605 and shall be as follows:

    (1) For cable television systems with 1,000 or more subscribers but with 12,500 or fewer subscribers, proof-of-performance tests conducted pursuant to this section shall include measurements taken at six (6) widely separated points. However, within each cable system, one additional test point shall be added for every additional 12,500 subscribers or fraction thereof (e.g., 7 test points if 12,501 to 25,000 subscribers; 8 test points if 25,001 to 37,500 subscribers, etc.). In addition, for technically integrated portions of cable systems that are not mechanically continuous (e.g., employing microwave connections), at least one test point will be required for each portion of the cable system served by a technically integrated hub. The proof-of-performance test points chosen shall be balanced to represent all geographic areas served by the cable system. At least one-third of the test points shall be representative of subscriber terminals most distant from the system input and from each microwave receiver (if microwave transmissions are employed), in terms of cable length. The measurements may be taken at convenient monitoring points in the cable network provided that data shall be included to relate the measured performance of the system as would be viewed from a nearby subscriber terminal. An identification of the instruments, including the makes, model numbers, and the most recent date of calibration, a description of the procedures utilized, and a statement of the qualifications of the person performing the tests shall also be included.

    (2) Proof-of-performance tests to determine the extent to which a cable television system complies with the standards set forth in § 76.605(b)(3), (4), and (5) shall be made on each of the NTSC or similar video channels of that system. Unless otherwise noted, proof-of-performance tests for all other standards in § 76.605(b) shall be made on a minimum of five (5) channels for systems operating a total activated channel capacity of less than 550 MHz, and ten (10) channels for systems operating a total activated channel capacity of 550 MHz or greater. The channels selected for testing must be representative of all the channels within the cable television system.

    (i) The operator of each cable television system that operates NTSC or similar channels shall conduct semi-annual proof-of-performance tests of that system, to determine the extent to which the system complies with the technical standards set forth in § 76.605(b)(4) as follows. The visual signal level on each channel shall be measured and recorded, along with the date and time of the measurement, once every six hours (at intervals of not less than five hours or no more than seven hours after the previous measurement), to include the warmest and the coldest times, during a 24-hour period in January or February and in July or August.

    (ii) The operator of each cable television system that operates NTSC or similar channels shall conduct triennial proof-of-performance tests of its system to determine the extent to which the system complies with the technical standards set forth in § 76.605(b)(11).

    9. Amend § 76.602 by revising paragraphs (c) and (d)(3) to read as follows:
    § 76.602 Incorporation by reference.

    (c) The following materials are available from the Consumer Technology Association (formerly the Consumer Electronics Association), 1919 S Eads St., Arlington, VA 22202; phone: 703-907-7600; web: standards.cta.tech/kwspub/published_docs/.

    (1) CTA-542-D, “Cable Television Channel Identification Plan,” June 2013, IBR approved for § 76.605.

    (2) CEA-931-A, “Remote Control Command Pass-through Standard for Home Networking,” 2003, IBR approved for § 76.640. (CEA-931-A is available through the document history of “CTA-931” from the reseller in paragraph (e)(2) of this section.)

    (d) * * *

    (3) ANSI/SCTE 40 2016, “Digital Cable Network Interface Standard,” copyright 2016, IBR approved for §§ 76.605, 76.640.

    10. Revise § 76.605 to read as follows
    § 76.605 Technical standards.

    (a) The following requirements apply to the performance of a cable television system as measured at the input to any terminal device with a matched impedance at the termination point or at the output of the modulating or processing equipment (generally the headend) of the cable television system or otherwise noted here or in ANSI/SCTE 40 2016. The requirements of paragraph (b) of this section are applicable to each NTSC or similar video downstream cable television channel in the system. Each cable system that uses QAM modulation to transport video programming shall adhere to ANSI/SCTE 40 2016 (incorporated by reference, see § 76.602). Cable television systems utilizing other technologies to distribute programming must respond to consumer complaints under paragraph (d) of this section.

    (b) For each NTSC or similar video downstream cable television channel in the system:

    (1) The cable television channels delivered to the subscriber's terminal shall be capable of being received and displayed by TV broadcast receivers used for off-the-air reception of TV broadcast signals, as authorized under part 73 of this chapter; and cable television systems shall transmit signals to subscriber premises equipment on frequencies in accordance with the channel allocation plan set forth in CTA-542-D (incorporated by reference, see § 76.602).

    (2) The aural center frequency of the aural carrier must be 4.5 MHz ±5 kHz above the frequency of the visual carrier at the output of the modulating or processing equipment of a cable television system, and at the subscriber terminal.

    (3) The visual signal level, across a terminating impedance which correctly matches the internal impedance of the cable system as viewed from the subscriber terminal, shall not be less than 1 millivolt across an internal impedance of 75 ohms (0 dBmV). Additionally, as measured at the end of a 30 meter (100 foot) cable drop that is connected to the subscriber tap, it shall not be less than 1.41 millivolts across an internal impedance of 75 ohms (+3 dBmV). (At other impedance values, the minimum visual signal level, as viewed from the subscriber terminal, shall be the square root of 0.0133 (Z) millivolts and, as measured at the end of a 30 meter (100 foot) cable drop that is connected to the subscriber tap, shall be 2 times the square root of 0.00662(Z) millivolts, where Z is the appropriate impedance value.)

    (4) The visual signal level on each channel, as measured at the end of a 30 meter cable drop that is connected to the subscriber tap, shall not vary more than 8 decibels within any six-month interval, which must include four tests performed in six-hour increments during a 24-hour period in July or August and during a 24-hour period in January or February, and shall be maintained within:

    (i) 3 decibels (dB) of the visual signal level of any visual carrier within a 6 MHz nominal frequency separation;

    (ii) 10 dB of the visual signal level on any other channel on a cable television system of up to 300 MHz of cable distribution system upper frequency limit, with a 1 dB increase for each additional 100 MHz of cable distribution system upper frequency limit (e.g., 11 dB for a system at 301-400 MHz; 12 dB for a system at 401-500 MHz, etc.); and

    (iii) A maximum level such that signal degradation due to overload in the subscriber's receiver or terminal does not occur.

    (5) The rms voltage of the aural signal shall be maintained between 10 and 17 decibels below the associated visual signal level. This requirement must be met both at the subscriber terminal and at the output of the modulating and processing equipment (generally the headend). For subscriber terminals that use equipment which modulate and remodulate the signal (e.g., baseband converters), the rms voltage of the aural signal shall be maintained between 6.5 and 17 decibels below the associated visual signal level at the subscriber terminal.

    (6) The amplitude characteristic shall be within a range of ±2 decibels from 0.75 MHz to 5.0 MHz above the lower boundary frequency of the cable television channel, referenced to the average of the highest and lowest amplitudes within these frequency boundaries. The amplitude characteristic shall be measured at the subscriber terminal.

    (7) The ratio of RF visual signal level to system noise shall not be less than 43 decibels. For class I cable television channels, the requirements of this section are applicable only to:

    (i) Each signal which is delivered by a cable television system to subscribers within the predicted Grade B or noise-limited service contour, as appropriate, for that signal;

    (ii) Each signal which is first picked up within its predicted Grade B or noise-limited service contour, as appropriate;

    (iii) Each signal that is first received by the cable television system by direct video feed from a TV broadcast station, a low power TV station, or a TV translator station.

    (8) The ratio of visual signal level to the rms amplitude of any coherent disturbances such as intermodulation products, second and third order distortions or discrete-frequency interfering signals not operating on proper offset assignments shall be as follows:

    (i) The ratio of visual signal level to coherent disturbances shall not be less than 51 decibels for noncoherent channel cable television systems, when measured with modulated carriers and time averaged; and

    (ii) The ratio of visual signal level to coherent disturbances which are frequency-coincident with the visual carrier shall not be less than 47 decibels for coherent channel cable systems, when measured with modulated carriers and time averaged.

    (9) The terminal isolation provided to each subscriber terminal:

    (i) Shall not be less than 18 decibels. In lieu of periodic testing, the cable operator may use specifications provided by the manufacturer for the terminal isolation equipment to meet this standard; and

    (ii) Shall be sufficient to prevent reflections caused by open-circuited or short-circuited subscriber terminals from producing visible picture impairments at any other subscriber terminal.

    (10) The peak-to-peak variation in visual signal level caused by undesired low frequency disturbances (hum or repetitive transients) generated within the system, or by inadequate low frequency response, shall not exceed 3 percent of the visual signal level. Measurements made on a single channel using a single unmodulated carrier may be used to demonstrate compliance with this parameter at each test location.

    (11) The following requirements apply to the performance of the cable television system as measured at the output of the modulating or processing equipment (generally the headend) of the system:

    (i) The chrominance-luminance delay inequality (or chroma delay), which is the change in delay time of the chrominance component of the signal relative to the luminance component, shall be within 170 nanoseconds.

    (ii) The differential gain for the color subcarrier of the television signal, which is measured as the difference in amplitude between the largest and smallest segments of the chrominance signal (divided by the largest and expressed in percent), shall not exceed ±20%.

    (iii) The differential phase for the color subcarrier of the television signal which is measured as the largest phase difference in degrees between each segment of the chrominance signal and reference segment (the segment at the blanking level of 0 IRE), shall not exceed ±10 degrees.

    (c) As an exception to the general provision requiring measurements to be made at subscriber terminals, and without regard to the type of signals carried by the cable television system, signal leakage from a cable television system shall be measured in accordance with the procedures outlined in § 76.609(h) and shall be limited as shown in table 1 to paragraph (c):

    Table 1 to Paragraph (c) Frequencies Signal
  • leakage
  • limit
  • Distance
  • in meters
  • (m)
  • Analog signals less than and including 54 MHz, and over 216 MHz 15 µV/m 30 Digital signals less than and including 54 MHz, and over 216 MHz 13.1 µV/m 30 Analog signals over 54 MHz up to and including 216 MHz 20 µV/m 3 Digital signals over 54 MHz up to and including 216 MHz 17.4 µV/m 3

    (d) Cable television systems distributing signals by methods other than 6 MHz NTSC or similar analog channels or 6 MHz QAM or similar channels on conventional coaxial or hybrid fiber-coaxial cable systems and which, because of their basic design, cannot comply with one or more of the technical standards set forth in paragraphs (a) and (b) of this section, are permitted to operate without Commission approval, provided that the operators of those systems adhere to all other applicable Commission rules and respond to consumer and local franchising authorities regarding industry-standard technical operation as set forth in their local franchise agreements and consistent with § 76.1713.

    Note 1:

    Local franchising authorities of systems serving fewer than 1,000 subscribers may adopt standards less stringent than those in § 76.605(a) and (b). Any such agreement shall be reduced to writing and be associated with the system's proof-of-performance records.

    Note 2:

    For systems serving rural areas as defined in § 76.5, the system may negotiate with its local franchising authority for standards less stringent than those in § 76.605(b)(3), (7), (8), (10) and (11). Any such agreement shall be reduced to writing and be associated with the system's proof-of-performance records.

    Note 3:

    The requirements of this section shall not apply to devices subject to the TV interface device rules under part 15 of this chapter.

    Note 4:

    Should subscriber complaints arise from a system failing to meet § 76.605(b)(10), the cable operator will be required to remedy the complaint and perform test measurements on § 76.605(b)(10) containing the full number of channels as indicated in § 76.601(b)(2) at the complaining subscriber's terminal. Further, should the problem be found to be system-wide, the Commission may order that the full number of channels as indicated in § 76.601(b)(2) be tested at all required locations for future proof-of-performance tests.

    Note 5:

    No State or franchising authority may prohibit, condition, or restrict a cable system's use of any type of subscriber equipment or any transmission technology.

    11. Revise § 76.606 to read as follows:
    § 76.606 Closed captioning.

    (a) The operator of each cable television system shall not take any action to remove or alter closed captioning data contained on line 21 of the vertical blanking interval.

    (b) The operator of each cable television system shall deliver intact closed captioning data contained on line 21 of the vertical blanking interval, as it arrives at the headend or from another origination source, to subscriber terminals and (when so delivered to the cable system) in a format that can be recovered and displayed by decoders meeting § 79.101 of this chapter.

    12. Revise § 76.610 to read as follows:
    § 76.610 Operation in the frequency bands 108-137 MHz and 225-400 MHz—scope of application.

    The provisions of §§ 76.605(d), 76.611, 76.612, 76.613, 76.614, 76.616, 76.617, 76.1803 and 76.1804 are applicable to all MVPDs (cable and non-cable) transmitting analog carriers or other signal components carried at an average power level equal to or greater than 100 microwatts across a 25 kHz bandwidth in any 160 microsecond period or transmitting digital carriers or other signal components at an average power level of 75.85 microwatts across a 25 kHz bandwidth in any 160 microsecond period at any point in the cable distribution system in the frequency bands 108-137 and 225-400 MHz for any purpose. Exception: Non-cable MVPDs serving less than 1000 subscribers and less than 1,000 units do not have to comply with § 76.1803.

    13. Revise § 76.611 to read as follows:
    § 76.611 Cable television basic signal leakage performance criteria.

    (a) No cable television system shall commence or provide service in the frequency bands 108-137 and 225-400 MHz unless such systems is in compliance with one of the following cable television basic signal leakage performance criteria:

    (1) Prior to carriage of signals in the aeronautical radio bands and at least once each calendar year, with no more than 12 months between successive tests thereafter, based on a sampling of at least 75% of the cable strand, and including any portion of the cable system which are known to have or can reasonably be expected to have less leakage integrity than the average of the system, the cable operator demonstrates compliance with a cumulative signal leakage index by showing that 10 log I is equal to or less than 64 using the following formula:

    ER22FE18.000

    θ is the fraction of the system cable length actually examined for leakage sources and is equal to the strand kilometers (strand miles) of plant tested divided by the total strand kilometers (strand miles) in the plant;

    Ei is the electric field strength in microvolts per meter (µV/m) measured 3 meters from the leak i; and

    n is the number of leaks found of field strength equal to or greater than 50 µV/m measured pursuant to § 76.609(h).

    The sum is carried over all leaks i detected in the cable examined; or

    (2) Prior to carriage of signals in the aeronautical radio bands and at least once each calendar year, with no more than 12 months between successive tests thereafter, the cable operator demonstrates by measurement in the airspace that at no point does the field strength generated by the cable system exceed 10 microvolts per meter (µV/m) RMS at an altitude of 450 meters above the average terrain of the cable system. The measurement system (including the receiving antenna) shall be calibrated against a known field of 10 µV/m RMS produced by a well characterized antenna consisting of orthogonal resonant dipoles, both parallel to and one quarter wavelength above the ground plane of a diameter of two meters or more at ground level. The dipoles shall have centers collocated and be excited 90 degrees apart. The half-power bandwidth of the detector shall be 25 kHz. If an aeronautical receiver is used for this purpose it shall meet the standards of the Radio Technical Commission for Aeronautics (RCTA) for aeronautical communications receivers. The aircraft antenna shall be horizontally polarized. Calibration shall be made in the community unit or, if more than one, in any of the community units of the physical system within a reasonable time period to performing the measurements. If data is recorded digitally the 90th percentile level of points recorded over the cable system shall not exceed 10 µV/m RMS as indicated above; if analog recordings is used the peak values of the curves, when smoothed according to good engineering practices, shall not exceed 10 µV/m RMS.

    (b) In paragraphs (a)(1) and (2) of this section the unmodulated test signal used for analog leakage measurements on the cable plant shall—

    (1) Be within the VHF aeronautical band 108-137 MHz or any other frequency for which the results can be correlated to the VHF aeronautical band; and

    (2) Have an average power level equal to the greater of:

    (i) The peak envelope power level of the strongest NTSC or similar analog cable television signal on the system, or

    (ii) 1.2 dB greater than the average power level of the strongest QAM or similar digital cable television signal on the system.

    (c) In paragraphs (a)(1) and (2) of this section, if a modulated test signal is used for analog leakage measurements, the test signal and detector technique must, when considered together, yield the same result as though an unmodulated test signal were used in conjunction with a detection technique which would yield the RMS value of said unmodulated carrier.

    (d) If a sampling of at least 75% of the cable strand (and including any portions of the cable system which are known to have or can reasonably be expected to have less leakage integrity than the average of the system) as described in paragraph (a)(1) of this section cannot be obtained by the cable operator or is otherwise not reasonably feasible, the cable operator shall perform the airspace measurements described in paragraph (a)(2) of this section.

    (e) Prior to providing service to any subscriber on a new section of cable plant, the operator shall show compliance with either:

    (1) The basic signal leakage criteria in accordance with paragraphs (a)(1) or (2) of this section for the entire plant in operation or

    (2) a showing shall be made indicating that no individual leak in the new section of the plant exceeds 20 µV/m at 3 meters in accordance with § 76.609 for analog signals or 17.4 µV/m at 3 meters for digital signals.

    (f) Notwithstanding paragraph (a) of this section, a cable operator shall be permitted to operate on any frequency which is offset pursuant to § 76.612 in the frequency band 108-137 MHz for the purpose of demonstrating compliance with the cable television basic signal leakage performance criteria.

    14. Revise the introductory text to § 76.612 to read as follows:
    § 76.612 Cable television frequency separation standards.

    All cable television systems which operate analog NTSC or similar channels in the frequency bands 108-137 MHZ and 225-400 MHz shall comply with the following frequency separation standards for each NTSC or similar channel:

    15. Revise § 76.640(b)(1)(i) to read as follows:
    § 76.640 Support for unidirectional digital cable products on digital cable systems.

    (b) * * *

    (1) * * *

    (i) ANSI/SCTE 40 2016 (incorporated by reference, see § 76.602), provided however that the “transit delay for most distant customer” requirement in Table 4.3 is not mandatory.

    16. Revise § 76.1508(a) to read as follows:
    § 76.1508 Network non-duplication.

    (a) Sections 76.92 through 76.95 shall apply to open video systems in accordance with the provisions contained in this section.

    17. Revise § 76.1509 to read as follows:
    § 76.1509 Syndicated program exclusivity.

    (a) Sections 76.101 through 76.110 shall apply to open video systems in accordance with the provisions contained in this section.

    (b) Any provision of § 76.101 that refers to a “cable community unit” shall apply to an open video system.

    (c) Any provision of § 76.105 that refers to a “cable system operator” or “cable television system operator” shall apply to an open video system operator. Any provision of § 76.105 that refers to a “cable system” or “cable television system” shall apply to an open video system except § 76.105(c) which shall apply to an open video system operator. Open video system operators shall make all notifications and information regarding exercise of syndicated program exclusivity rights immediately available to all appropriate video programming provider on the system. An open video system operator shall not be subject to sanctions for any violation of the rules in §§ 76.101 through 76.110 by an unaffiliated program supplier if the operator provided proper notices to the program supplier and subsequently took prompt steps to stop the distribution of the infringing program once it was notified of a violation.

    (d) Any provision of § 76.106 that refers to a “cable community” shall apply to an open video system community. Any provision of § 76.106 that refers to a “cable community unit” or “community unit” shall apply to an open video system or that portion of an open video system that operates or will operate within a separate and distinct community or municipal entity (including unincorporated communities within unincorporated areas and including single, discrete unincorporated areas). Any provision of §§ 76.106 through 76.108 that refers to a “cable system” shall apply to an open video system.

    (e) Any provision of § 76.109 that refers to “cable television” or a “cable system” shall apply to an open video system.

    (f) Any provision of § 76.110 that refers to a “community unit” shall apply to an open video system or that portion of an open video system that is affected by this rule.

    18. Revise § 76.1510 to read as follows:
    § 76.1510 Application of certain Title VI provisions.

    The following sections within part 76 shall also apply to open video systems: §§ 76.71, 76.73, 76.75, 76.77, 76.79, 76.1702, and 76.1802 (Equal Employment Opportunity Requirements); §§ 76.503 and 76.504 (ownership restrictions); § 76.981 (negative option billing); and §§ 76.1300, 76.1301 and 76.1302 (regulation of carriage agreements); § 76.610 (operation in the frequency bands 108-137 and 225-400 MHz—scope of application provided, however, that these sections shall apply to open video systems only to the extent that they do not conflict with this subpart S. Section 631 of the Communications Act (subscriber privacy) shall also apply to open video systems.

    19. Revise § 76.1601 to read as follows:
    § 76.1601 Deletion or repositioning of broadcast signals.

    A cable operator shall provide written notice to any broadcast television station at least 30 days prior to either deleting from carriage or repositioning that station. Such notification shall also be provided to subscribers of the cable system.

    20. Amend § 76.1602 by revising the introductory text to paragraph (b) to read as follows:
    § 76.1602 Customer service—general information.

    (b) The cable operator shall provide written information on each of the following areas at the time of installation of service, at least annually to all subscribers, and at any time upon request:

    § 76.1610 [Amended]
    21. Amend § 76.1610 by removing paragraphs (f) and (g). 22. Revise § 76.1701(d) to read as follows:
    § 76.1701 Political file.

    (d) Where origination cablecasting material is a political matter or matter involving the discussion of a controversial issue of public importance and a corporation, committee, association or other unincorporated group, or other entity is paying for or furnishing the matter, the system operator shall, in addition to making the announcement required by § 76.1615, require that a list of the chief executive officers or members of the executive committee or of the board of directors of the corporation, committee, association or other unincorporated group, or other entity shall be made available for public inspection at the local office of the system. Such lists shall be kept and made available for two years.

    23. Revise the introductory text to § 76.1804 to read as follows:
    § 76.1804 Aeronautical frequencies notification: leakage monitoring (CLI).

    An MVPD shall notify the Commission before transmitting any digital signal with average power exceeding 10 5 watts across a 30 kHz bandwidth in a 2.5 millisecond time period, or for other signal types, any carrier of other signal component with an average power level across a 25 kHz bandwidth in any 160 microsecond time period equal to or greater than 10 4 watts at any point in the cable distribution system on any new frequency or frequencies in the aeronautical radio frequency bands (108-137 MHz, 225-400 MHz). The notification shall be made on FCC Form 321. Such notification shall include:

    Federal Communications Commission. Marlene H. Dortch, Secretary.
    [FR Doc. 2018-03547 Filed 2-21-18; 8:45 am] BILLING CODE 6712-01-P
    GENERAL SERVICES ADMINISTRATION 48 CFR Parts 502, 512, 513, 532, and 552 [GSAR Change 83; GSAR Case 2015-G512; Docket No. 2016-0010; Sequence No. 2] RIN 3090-AJ67 General Services Administration Acquisition Regulation; Unenforceable Commercial Supplier Agreement Terms AGENCY:

    Office of Acquisition Policy, General Services Administration (GSA).

    ACTION:

    Final rule.

    SUMMARY:

    GSA is amending the General Services Administration Acquisition Regulation (GSAR) to address common commercial supplier agreement terms that are inconsistent with or create ambiguity with Federal Law.

    DATES:

    Effective: February 22, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Ms. Janet Fry, Senior Policy Advisor, GSA Acquisition Policy Division, at 703-605-3167 or [email protected] For information pertaining to status or publication schedules, contact the Regulatory Secretariat at 202-501-4755. Please cite GSAR Case 2015-G512.

    SUPPLEMENTARY INFORMATION:

    I. Background

    GSA published a proposed rule in the Federal Register at 81 FR 34302 on May 31, 2016, to amend the GSAR and address common commercial supplier agreement terms that are inconsistent with or create ambiguity with Federal Law.

    Standard commercial supplier agreements contain terms and conditions that make sense when the purchaser is a private party but are inappropriate when the purchaser is the Federal Government. Discrepancies between commercial supplier agreements and Federal law or the Government's needs create recurrent points of inconsistency. As a result, industry and Government representatives must spend significant time and resources negotiating and tailoring commercial supplier agreements to comply with Federal law and to ensure both parties have agreement on the contract terms. Explicitly addressing common unenforceable terms eliminates the need for negotiation on these identified terms.

    This approach will: (1) Decrease proposal costs associated with negotiating the identified unenforceable commercial supplier agreement terms; (2) facilitate faster procurement and contract lead times, therefore decreasing the time it takes for contractors to make a return on their investment; (3) reduce administrative costs for companies that maintain alternate Federally compliant commercial supplier agreements; and (4) for small business concerns, level the playing field with larger competitors since negotiations will only be required if the commercial supplier agreements contain objectionable clauses outside of those already identified in the GSAR clause. Lastly, this approach ensures consistent application and understanding of these unenforceable terms, potentially reducing unnecessary legal costs.

    II. Discussion of Proposed Rule

    Two respondents submitted comments on the proposed rule. The General Services Administration has reviewed the comments in the development of the final rule. A discussion of the comments and the changes made to the rule as a result of those comments are provided as follows:

    A. Summary of Significant Changes

    This final rule makes the following significant changes from the proposed rule:

    • GSAR 552.212-4(s)—Reverts the order of precedence to move “Addenda to the solicitation or contract, including any license agreements for computer software” back to number 4, and “Solicitation provisions of the solicitation” and “Other paragraphs of the clause” back to number 5 and 6, respectively. Additionally, language was added to clarify the Commercial Supplier Agreements—Unenforceable Clauses provision takes precedence over the commercial supplier agreement terms and conditions.

    • GSAR 552.212-4(w)(1)(vi)—Deletes the requirement for providing full text terms with the offer, adds a definition of a material change, and adds clarification on when a commercial supplier agreement must be bilaterally modified in the contract.

    B. Analysis of Public Comments

    Public comments are grouped into categories in order to provide clarification and to better respond to the issues raised.

    1. Order of Precedence

    Comment: Both respondents addressed concerns with the change to the order of precedence in paragraph(s) of GSAR clause 552.212-4 which places commercial supplier agreements in a lower position. The commenters stated that this could result in terms, which are not required by law or regulation, taking precedence over the standard commercial terms in a commercial supplier agreement. The commenters provided the example of a non-standard warranty contained in a solicitation provision or in 552.212-4 paragraph (o), Warranty, taking precedence over a company's standard commercial warranty contained in their commercial supplier agreement. Additional examples included title and ownership of software intellectual property (“IP”), warranty and exclusion of implied warranties, limitations of liability and exclusive remedies, and IP indemnification. One respondent stated the change in precedence creates a preference for Government terms and conditions that appears to contradict the language of existing statute (Federal Acquisition Streamlining Act) and regulation (Federal Acquisition Regulation (FAR) part 12).

    Response: The intent of the change in the order of precedence was (1) to ensure the Commercial Supplier Agreement—Unenforceable Clauses provisions take precedence over the standard commercial supplier agreements and (2) to provide clarity that awarded terms (i.e. those agreed to by both parties during contract formation), including the negotiated and awarded commercial supplier agreement, take precedence to unilateral changes to commercial supplier agreements made by the contractor. GSA reviewed the unintended impacts identified by the respondents and agrees that there are better ways to solve the problem.

    Instead, GSA addressed intent (1) by adding language to 552.212-4(s)(4)to clarify that the Commercial Supplier Agreement—Unenforceable Clauses provisions take precedence over any commercial supplier agreement.

    GSA addressed intent (2) by adding a new subparagraph to 552.212-4(w)(1)(vi) to clearly state that material changes to a commercial supplier agreement after award must be bilaterally modified into the contract to be enforceable against the Government. Additionally, subparagraph (C) was updated to more clearly state that unilateral revisions that are found to be inconsistent with a material term of the contract are not enforceable against the Government (i.e., awarded commercial supplier terms will take precedence over terms updated unilaterally). Equivalent changes were made to the language at GSAR 552.232-78.

    2. Full Text Terms

    Comment: Both respondents voiced concerns about the burden on contractors to provide full text for all terms. Commercial supplier agreements may include terms by reference which can be voluminous. The terms may change at any time and providing full text would unduly delay awards and modifications. One respondent stated the requirement to submit the terms in writing seemed to imply they will be fixed terms, and that providing full text terms is not a commercial practice.

    Response: The intent of this language was to ensure that the Government fully understands the terms and conditions agreed upon during contract formation.

    As stated in the public comments, referenced terms on a website can be changed at any time, which is problematic during contract formation for the Government. The time between an offer and award of a contract could be several weeks. There is no assurance that the referenced terms reviewed early in contract formation have not changed. When awarding contracts, contracting officers must be fully aware of the terms that will bind the Government, which is why static full text terms were proposed.

    After consideration of the public comments, GSA decided that maintaining the commercial practice of providing the commercial supplier agreement with referenced terms and by improving internal controls for intake and management of commercial supplier agreements could reduce Government risk and accomplish the intended outcome.

    For this reason, GSA has deleted the language in 552.212-4(w)(1)(vi)(A) which required full text for all terms. An equivalent change was made to the language at GSAR 552.232-78. GSA will add supplementary guidance in the General Services Acquisition Manual to clarify the contracting officer's responsibilities regarding commercial supplier agreement reviews, negotiations and documentation.

    3. Enforceability of Unilateral Revisions

    Comment: One respondent stated the intent of 552.212-4(w)(1)(vi)(C) is unclear. If the intent is the order of precedence clause of the contract is not enforceable with respect to any software license terms unilaterally revised subsequent to award, then the respondent recommends the Paragraph be revised for purposes of clarity.

    Response: The intent of the clause is to ensure material changes to the term of the contract are agreed to by both parties. 552.212-4(w)(1)(vi)(C) has been revised to more clearly state the intent, and an additional paragraph has been added to require bilateral modifications for material changes to commercial supplier agreements after contract award.

    4. Significant Regulatory Action

    Comment: One respondent stated “the proposed rule is a significant action, due to the change in the order of precedence, which should be subject to OMB review” pursuant to Executive Order 12866.

    Response: As previously addressed, the order of precedence will be reverted back to the order enumerated in the FAR 52.212-4 based on the unintended impacts brought to light by the respondents. Therefore, this rule is not a significant change, and is not subject to Office of Management and Budget (OMB) review pursuant to Executive Order 12866.

    5. Burdensome Information Collection

    Comment: One respondent believes the requirement to provide full text of terms is an unnecessary and burdensome information collection and subject to the Paperwork Reduction Act (PRA).

    Response: GSA has removed the requirement to provide all full text terms and therefore this rule is not subject to the PRA.

    C. Other Changes

    This final rule makes the following additional changes from the proposed rule:

    • GSAR 512.301, Solicitation provisions and contract clauses for the acquisition of commercial items, a conforming change is made to subparagraph (e) to clarify the applicability of the deviated language to FAR 52.212-4 Alternate I.

    • GSAR 552.212-4(w)(1)(ix), Audits, a typographical error in the disputes clause reference was fixed.

    • GSAR 552.232-78, Commercial Supplier Agreements—Unenforceable Clauses, is renumbered and amended to make conforming changes.

    • GSAR 552.232-78(a)(4), previously (a)(1)(iv), Continued performance, is revised to correct the reference of the disputes clause from “subparagraph (d) (Disputes)” to “FAR 52.233-1, Disputes.”

    • GSAR 552.232-78(a)(6), Updating terms, previously (a)(1)(vi), Additional terms, is updated to reflect equivalent text changes previously described for subparagraph (w)(1)(vi) of 552.212-4.

    III. Expected Cost Savings of This Final Rule

    Information was gathered from GSA's Information Technology Category (ITC) business line and GSA's Office of General Counsel (OGC) to estimate total annualized cost savings associated with reviewing and negotiating the 15 incompatible CSA terms for both industry and Government. A 7 percent discount rate was used for all calculations.

    Government Cost Savings

    Based on the ITC CSA data for Fiscal Year 2016 (FY16), GSA estimates approximately 600 CSAs will be reviewed each year. CSAs must be reviewed for each procurement because terms of CSAs are updated often. Therefore, the review of a CSA for a new procurement is not eliminated by a previous review of a CSA for the same item purchased previously.

    GSA ITC subject matter experts and GSA OGC were consulted to identify the activities associated with the review of CSAs and the hourly estimates for the activities in relation to the 15 CSA terms. It is estimated that on average OGC review takes 0.9 hours and contracting officer review and negotiation takes 2.7 hours for each CSA. Using the 2017 General Schedule, average pay rates were identified for attorneys and contracting officers and fringe benefits were included. The estimated annualized cost savings for the Government is $119,103.

    Public Cost Savings

    Apparent successful offerors have at least a negotiator and an attorney participate in the review and negotiation of a CSA prior to award. It is assumed, at a minimum, the time required by an offeror's attorney and negotiator to review the 15 CSA terms are equivalent to the Government legal and contracting officer hours; 0.9 and 2.7 hours respectively. Fully burdened labor rates equivalent to the Government were used to estimate industry cost savings. Therefore for industry the estimated annualized cost savings is $119,103.

    The total annualized cost savings of this rule is estimated at $238,206.

    IV. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

    V. Executive Order 13771

    This final rule is considered an E.O. 13771 deregulatory action. Details on the estimated cost savings can be found in Section III-Expected Cost Savings of this Final Rule.

    VI. Executive Order 13777

    This final rule was identified by GSA's Regulatory Reform Task Force as a rule that improves efficiency by eliminating procedures with costs that exceed the benefits as described in Section IV.

    VII. Regulatory Flexibility Act

    GSA does not expect this rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq.

    GSA has prepared a Final Regulatory Flexibility Analysis (FRFA) consistent with the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. The FRFA is summarized as follows:

    This effort is expected to reduce the overall burden on small entities by reducing the amount of time and resources required to negotiate commercial supplier agreements in GSA contracts. GSA believes that such an approach will disproportionately benefit small business concerns since they are less likely to retain in-house counsel and the GSAR revision will reduce or eliminate the costs associated with the negotiation of the identified unenforceable elements. Furthermore, this approach will allow small businesses that do not have commercial supplier agreements tailored to Federal Government procurements to potentially utilize their otherwise compliant, standard commercial supplier agreements when conducting business with the Government. No comments were received on the Initial Regulatory Flexibility Analysis (IRFA) from the Chief Counsel for Advocacy of the Small Business Administration.

    Interested parties may obtain a copy of the FRFA from the Regulatory Secretariat. The Regulatory Secretariat has submitted a copy of the FRFA to the Chief Counsel for Advocacy of the Small Business Administration.

    VII. Paperwork Reduction Act

    The final rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

    List of Subjects in 48 CFR Parts 502, 512, 513, 532, and 552

    Government procurement.

    Dated: February 14, 2018. Jeffrey A. Koses, Senior Procurement Executive, Office of Acquisition Policy.

    Therefore, GSA is amending 48 CFR parts 502, 512, 513, 532, and 552 as set forth below:

    1. Add part 502 to read as follows: PART 502—DEFINITIONS OF WORDS AND TERMS Authority:

    40 U.S.C. 121(c).

    Subpart 502.1—Definitions
    502.101 Definitions.

    Commercial supplier agreements means terms and conditions customarily offered to the public by vendors of supplies or services that meet the definition of “commercial item” set forth in FAR 2.101 and intended to create a binding legal obligation on the end user. Commercial supplier agreements are particularly common in information technology acquisitions, including acquisitions of commercial computer software and commercial technical data, but they may apply to any supply or service. The term applies—

    (a) Regardless of the format or style of the document. For example, a commercial supplier agreement may be styled as standard terms of sale or lease, Terms of Service (TOS), End User License Agreement (EULA), or another similar legal instrument or agreement, and may be presented as part of a proposal or quotation responding to a solicitation for a contract or order;

    (b) Regardless of the media or delivery mechanism used. For example, a commercial supplier agreement may be presented as one or more paper documents or may appear on a computer or other electronic device screen during a purchase, software installation, other product delivery, registration for a service, or another transaction.

    PART 512—ACQUISITION OF COMMERCIAL ITEMS 2. The authority citation for part 512 is revised to read as follows: Authority:

    40 U.S.C. 121(c).

    3. Add subpart 512.2, consisting of section 512.216, to read as follows: Subpart 512.2—Special Requirements for the Acquisition of Commercial Items
    512.216 Unenforceability of unauthorized obligations.

    GSA has a deviation to FAR 12.216 for this section. For commercial contracts, supplier license agreements are referred to as commercial supplier agreements (defined in 502.101). Paragraph (u) of clause 552.212-4 prevents violations of the Anti-Deficiency Act (31 U.S.C. 1341) for supplies or services acquired subject to a commercial supplier agreement.

    4. Amend section 512.301 by adding paragraph (e) to read as follows:
    512.301 Solicitation provisions and contract clauses for the acquisition of commercial items.

    (e) GSA has a deviation to revise certain paragraphs of FAR clause 52.212-4. Use clause 552.212-4 Contract Terms and Conditions-Commercial Items (FAR DEVIATION), for acquisitions of commercial items in lieu of FAR 52.212-4 or 52.212-4 Alternate I. The contracting officer may tailor this clause in accordance with FAR 12.302 and GSAM 512.302.

    5. Add part 513 to read as follows: PART 513—SIMPLIFIED ACQUISITION PROCEDURES Subpart 513.2—Actions at or Below the Micro-Purchase Threshold Sec. 513.202 Unenforceability of unauthorized obligations in micro-purchases. Subpart 513.3—Simplified Acquisition Methods 513.302 Purchase orders. 513.302-5 Clauses. Authority:

    40 U.S.C. 121(c).

    Subpart 513.2—Actions at or Below the Micro-Purchase Threshold
    513.202 Unenforceability of unauthorized obligations in micro-purchases.

    Clause 552.232-39, Unenforceability of Unauthorized Obligations (FAR DEVIATION), will automatically apply to any micro-purchase in lieu of FAR 52.232-39 for supplies and services acquired subject to a commercial supplier agreement (as defined in 502.101).

    Subpart 513.3—Simplified Acquisition Methods
    513.302-5 Clauses.

    Where the supplies or services are offered under a commercial supplier agreement (as defined in 502.101), the purchase order or modification shall incorporate clause 552.232-39, Unenforceability of Unauthorized Obligations (FAR DEVIATION), in lieu of FAR 52.232-39, and clause 552.232-78, Commercial Supplier Agreements-Unenforceable Clauses.

    PART 532—CONTRACT FINANCING 6. The authority citation for part 532 continues to read as follows: Authority:

    40 U.S.C. 121(c).

    7. Add subpart 532.7 to read as follows: Subpart 532.7—Contract Funding Sec. 532.705 Unenforceability of unauthorized obligations. 532.706-3 Clause for unenforceability of unauthorized obligations. Subpart 532.7—Contract Funding
    532.705 Unenforceability of unauthorized obligations.

    Supplier license agreements defined in FAR 32.705 are equivalent to commercial supplier agreements defined in 502.101.

    532.706-3 Clause for unenforceability of unauthorized obligations.

    (a) The contracting officer shall utilize the clause at 552.232-39, Unenforceability of Unauthorized Obligations (FAR DEVIATION) in all solicitations and contracts in lieu of FAR 52.232-39.

    (b) The contracting officer shall utilize the clause at 552.232-78, Commercial Supplier Agreements—Unenforceable Clauses, in all solicitations and contracts (including orders) when not using FAR part 12.

    PART 552—SOLICITATION PROVISIONS AND CONTRACT CLAUSES
    8. The authority citation for 48 CFR 552 continues to read as follows: Authority:

    40 U.S.C. 121(c).

    9. Amend section 552.212-4 by— a. Revising the section heading, introductory text, and date of the clause; and b. Adding paragraphs (s), (u), and (w).

    The revisions and additions read as follows:

    552.212-4 Contract Terms and Conditions-Commercial Items (FAR DEVIATION).

    As prescribed in 512.301(e), replace subparagraph (g)(2), paragraph (s), and paragraph (u) of FAR clause 52.212-4. Also, add paragraph (w) to FAR clause 52.212-4.

    Contract Terms and Conditions—Commercial Items (FAR DEVIATION) (Feb. 2018)

    (s) Order of precedence. Any inconsistencies in this solicitation or contract shall be resolved by giving precedence in the following order:

    (1) The schedule of supplies/services.

    (2) The Assignments, Disputes, Payments, Invoice, Other Compliances, Compliance with Laws Unique to Government Contracts, Unauthorized Obligations, and Commercial Supplier Agreements-Unenforceable Clauses paragraphs of this clause.

    (3) The clause at 52.212-5.

    (4) Addenda to this solicitation or contract, including any commercial supplier agreements as amended by the Commercial Supplier Agreements—Unenforceable Clauses provision.

    (5) Solicitation provisions if this is a solicitation.

    (6) Other paragraphs of this clause.

    (7) The Standard Form 1449.

    (8) Other documents, exhibits, and attachments.

    (9) The specification.

    (u) Unauthorized Obligations. (1) Except as stated in paragraph (u)(2) of this clause, when any supply or service acquired under this contract is subject to any commercial supplier agreement (as defined in 502.101) that includes any language, provision, or clause requiring the Government to pay any future fees, penalties, interest, legal costs or to indemnify the Contractor or any person or entity for damages, costs, fees, or any other loss or liability that would create an Anti-Deficiency Act violation (31 U.S.C. 1341), the following shall govern:

    (i) Any such language, provision, or clause is unenforceable against the Government.

    (ii) Neither the Government nor any Government authorized end user shall be deemed to have agreed to such clause by virtue of it appearing in the commercial supplier agreement. If the commercial supplier agreement is invoked through an “I agree” click box or other comparable mechanism (e.g., “click-wrap” or “browse-wrap” agreements), execution does not bind the Government or any Government authorized end user to such clause.

    (iii) Any such language, provision, or clause is deemed to be stricken from the commercial supplier agreement.

    (2) Paragraph (u)(1) of this clause does not apply to indemnification or any other payment by the Government that is expressly authorized by statute and specifically authorized under applicable agency regulations and procedures.

    (w) Commercial supplier agreements—unenforceable clauses. When any supply or service acquired under this contract is subject to a commercial supplier agreement (as defined in 502.101), the following language shall be deemed incorporated into the commercial supplier agreement. As used herein, “this agreement” means the commercial supplier agreement:

    (1) Notwithstanding any other provision of this agreement, when the end user is an agency or instrumentality of the U.S. Government, the following shall apply:

    (i) Applicability. This agreement is a part of a contract between the commercial supplier and the U.S. Government for the acquisition of the supply or service that necessitates a license or other similar legal instrument (including all contracts, task orders, and delivery orders under FAR Part 12).

    (ii) End user. This agreement shall bind the ordering activity as end user but shall not operate to bind a Government employee or person acting on behalf of the Government in his or her personal capacity.

    (iii) Law and disputes. This agreement is governed by Federal law.

    (A) Any language purporting to subject the U.S. Government to the laws of a U.S. state, U.S. territory, district, or municipality, or a foreign nation, except where Federal law expressly provides for the application of such laws, is hereby deleted.

    (B) Any language requiring dispute resolution in a specific forum or venue that is different from that prescribed by applicable Federal law is hereby deleted.

    (C) Any language prescribing a different time period for bringing an action than that prescribed by applicable Federal law in relation to a dispute is hereby deleted.

    (iv) Continued performance. The supplier or licensor shall not unilaterally revoke, terminate or suspend any rights granted to the Government except as allowed by this contract. If the supplier or licensor believes the ordering activity to be in breach of the agreement, it shall pursue its rights under the Contract Disputes Act or other applicable Federal statute while continuing performance as set forth in subparagraph (d) (Disputes).

    (v) Arbitration; equitable or injunctive relief. In the event of a claim or dispute arising under or relating to this agreement, a binding arbitration shall not be used unless specifically authorized by agency guidance, and equitable or injunctive relief, including the award of attorney fees, costs or interest, may be awarded against the U.S. Government only when explicitly provided by statute (e.g., Prompt Payment Act or Equal Access to Justice Act).

    (vi) Updating terms. (A) After award, the contractor may unilaterally revise terms if they are not material. A material change is defined as:

    (1) Terms that change Government rights or obligations;

    (2) Terms that increase Government prices;

    (3) Terms that decrease overall level of service; or

    (4) Terms that limit any other Government right addressed elsewhere in this contract.

    (B) For revisions that will materially change the terms of the contract, the revised commercial supplier agreement must be incorporated into the contract using a bilateral modification.

    (C) Any agreement terms or conditions unilaterally revised subsequent to award that are inconsistent with any material term or provision of this contract shall not be enforceable against the Government, and the Government shall not be deemed to have consented to them.

    (vii) No automatic renewals. If any license or service tied to periodic payment is provided under this agreement (e.g., annual software maintenance or annual lease term), such license or service shall not renew automatically upon expiration of its current term without prior express consent by an authorized Government representative.

    (viii) Indemnification. Any clause of this agreement requiring the commercial supplier or licensor to defend or indemnify the end user is hereby amended to provide that the U.S. Department of Justice has the sole right to represent the United States in any such action, in accordance with 28 U.S.C. 516.

    (ix) Audits. Any clause of this agreement permitting the commercial supplier or licensor to audit the end user's compliance with this agreement is hereby amended as follows:

    (A) Discrepancies found in an audit may result in a charge by the commercial supplier or licensor to the ordering activity. Any resulting invoice must comply with the proper invoicing requirements specified in the underlying Government contract or order.

    (B) This charge, if disputed by the ordering activity, will be resolved in accordance with subparagraph (d) (Disputes); no payment obligation shall arise on the part of the ordering activity until the conclusion of the dispute process.

    (C) Any audit requested by the contractor will be performed at the contractor's expense, without reimbursement by the Government.

    (x) Taxes or surcharges. Any taxes or surcharges which the commercial supplier or licensor seeks to pass along to the Government as end user will be governed by the terms of the underlying Government contract or order and, in any event, must be submitted to the Contracting Officer for a determination of applicability prior to invoicing unless specifically agreed to otherwise in the Government contract.

    (xi) Non-assignment. This agreement may not be assigned, nor may any rights or obligations thereunder be delegated, without the Government's prior approval, except as expressly permitted under subparagraph (b) of this clause.

    (xii) Confidential information. If this agreement includes a confidentiality clause, such clause is hereby amended to state that neither the agreement nor the contract price list, as applicable, shall be deemed “confidential information.” Issues regarding release of “unit pricing” will be resolved consistent with the Freedom of Information Act. Notwithstanding anything in this agreement to the contrary, the Government may retain any confidential information as required by law, regulation or its internal document retention procedures for legal, regulatory or compliance purposes; provided, however, that all such retained confidential information will continue to be subject to the confidentiality obligations of this agreement.

    (2) If any language, provision, or clause of this agreement conflicts or is inconsistent with the preceding paragraph (w)(1), the language, provisions, or clause of paragraph (w)(1) shall prevail to the extent of such inconsistency.

    (End of clause)
    10. Add section 552.232-39 to read as follows:
    552.232-39 Unenforceability of Unauthorized Obligations (FAR DEVIATION).

    As prescribed in 513.302-5 and 532.706-3, insert the following clause:

    Unenforceability of Unauthorized Obligations. (FAR DEVIATION) (Feb. 2018)

    (a) Except as stated in paragraph (b) of this clause, when any supply or service acquired under this contract is subject to any commercial supplier agreement (as defined in 502.101) that includes any language, provision, or clause requiring the Government to pay any future fees, penalties, interest, legal costs or to indemnify the Contractor or any person or entity for damages, costs, fees, or any other loss or liability that would create an Anti-Deficiency Act violation (31 U.S.C. 1341), the following shall govern:

    (1) Any such language, provision, or clause is unenforceable against the Government.

    (2) Neither the Government nor any Government authorized end user shall be deemed to have agreed to such language, provision, or clause by virtue of it appearing in the commercial supplier agreement. If the commercial supplier agreement is invoked through an “I agree” click box or other comparable mechanism (e.g., “click-wrap” or “browse-wrap” agreements), execution does not bind the Government or any Government authorized end user to such clause.

    (3) Any such language, provision, or clause is deemed to be stricken from the commercial supplier agreement.

    (b) Paragraph (a) of this clause does not apply to indemnification or any other payment by the Government that is expressly authorized by statute and specifically authorized under applicable agency regulations and procedures.

    (End of clause)
    11. Add section 552.232-78 to read as follows:
    552.232-78 Commercial Supplier Agreements—Unenforceable Clauses.

    As prescribed in 513.302-5 and 532.706-3 insert the following clause:

    Commercial Supplier Agreements-Unenforceable Clauses (Feb. 2018)

    When any supply or service acquired under this contract is subject to a commercial supplier agreement (as defined in 502.101), the following language shall be deemed incorporated into the commercial supplier agreement. As used herein, “this agreement” means the commercial supplier agreement:

    (a) Notwithstanding any other provision of this agreement, when the end user is an agency or instrumentality of the U.S. Government, the following shall apply:

    (1) Applicability. This agreement is part of a contract between the commercial supplier and the U.S. Government for the acquisition of the supply or service that necessitates a license or other similar legal instrument (including all contracts, task orders, and delivery orders under FAR Parts 13, 14 or 15).

    (2) End user. This agreement shall bind the ordering activity as end user but shall not operate to bind a Government employee or person acting on behalf of the Government in his or her personal capacity.

    (3) Law and disputes. This agreement is governed by Federal law.

    (i) Any language purporting to subject the U.S. Government to the laws of a U.S. state, U.S. territory, district, or municipality, or foreign nation, except where Federal law expressly provides for the application of such laws, is hereby deleted.

    (ii) Any language requiring dispute resolution in a specific forum or venue that is different from that prescribed by applicable Federal law is hereby deleted.

    (iii) Any language prescribing a different time period for bringing an action than that prescribed by applicable Federal law in relation to a dispute is hereby deleted.

    (4) Continued performance. The supplier or licensor shall not unilaterally revoke, terminate or suspend any rights granted to the Government except as allowed by this contract. If the supplier or licensor believes the ordering activity to be in breach of the agreement, it shall pursue its rights under the Contract Disputes Act or other applicable Federal statute while continuing performance as set forth in FAR 52.233-1, Disputes.

    (5) Arbitration; equitable or injunctive relief. In the event of a claim or dispute arising under or relating to this agreement, a binding arbitration shall not be used unless specifically authorized by agency guidance, and equitable or injunctive relief, including the award of attorney fees, costs or interest, may be awarded against the U.S. Government only when explicitly provided by statute (e.g., Prompt Payment Act or Equal Access to Justice Act).

    (6) Updating terms. (i) After award, the contractor may unilaterally revise terms if they are not material. A material change is defined as:

    (A) Terms that significantly change Government rights or obligations; and

    (B) Terms that increase Government prices;

    (C) Terms that decrease overall level of service; or

    (D) Terms that limit any other Government right addressed elsewhere in this contract.

    (ii) For revisions that will materially change the terms of the contract, the revised commercial supplier agreement must be incorporated into the contract using a bilateral modification.

    (iii) Any agreement terms or conditions unilaterally revised subsequent to award that are inconsistent with any material term or provision of this contract shall not be enforceable against the Government, and the Government shall not be deemed to have consented to them.

    (7) No automatic renewals. If any license or service tied to periodic payment is provided under this agreement (e.g., annual software maintenance or annual lease term), such license or service shall not renew automatically upon expiration of its current term without prior express consent by an authorized Government representative.

    (8) Indemnification. Any clause of this agreement requiring the commercial supplier or licensor to defend or indemnify the end user is hereby amended to provide that the U.S. Department of Justice has the sole right to represent the United States in any such action, in accordance with 28 U.S.C. 516.

    (9) Audits. Any clause of this agreement permitting the commercial supplier or licensor to audit the end user's compliance with this agreement is hereby amended as follows:

    (i) Discrepancies found in an audit may result in a charge by the commercial supplier or licensor to the ordering activity. Any resulting invoice must comply with the proper invoicing requirements specified in the underlying Government contract or order.

    (ii) This charge, if disputed by the ordering activity, will be resolved through the Disputes clause at FAR 52.233-1; no payment obligation shall arise on the part of the ordering activity until the conclusion of the dispute process.

    (iii) Any audit requested by the contractor will be performed at the contractor's expense, without reimbursement by the Government.

    (10) Taxes or surcharges. Any taxes or surcharges which the commercial supplier or licensor seeks to pass along to the Government as end user will be governed by the terms of the underlying Government contract or order and, in any event, must be submitted to the Contracting Officer for a determination of applicability prior to invoicing unless specifically agreed to otherwise in the Government contract.

    (11) Non-assignment. This agreement may not be assigned, nor may any rights or obligations thereunder be delegated, without the Government's prior approval, except as expressly permitted under the clause at FAR 52.232-23, Assignment of Claims.

    (12) Confidential information. If this agreement includes a confidentiality clause, such clause is hereby amended to state that neither the agreement nor the contract price list, as applicable, shall be deemed “confidential information.” Issues regarding release of “unit pricing” will be resolved consistent with the Freedom of Information Act. Notwithstanding anything in this agreement to the contrary, the Government may retain any confidential information as required by law, regulation or its internal document retention procedures for legal, regulatory or compliance purposes; provided, however, that all such retained confidential information will continue to be subject to the confidentiality obligations of this agreement.

    (b) If any language, provision or clause of this agreement conflicts or is inconsistent with the preceding paragraph (a), the language, provisions, or clause of paragraph (a) shall prevail to the extent of such inconsistency.

    (End of clause)
    [FR Doc. 2018-03350 Filed 2-21-18; 8:45 am] BILLING CODE 6820-61-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 622 [Docket No. 160426363-7275-02] RIN 0648-XG034 Coastal Migratory Pelagic Resources of the Gulf of Mexico and Atlantic Region; 2017-2018 Commercial Hook-and-Line Closure for King Mackerel in the Gulf of Mexico Southern Zone AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Temporary rule; closure.

    SUMMARY:

    NMFS implements an accountability measure (AM) to close the hook-and-line component of the commercial sector for king mackerel in the Gulf of Mexico (Gulf) southern zone. This closure is necessary to protect the Gulf king mackerel resource.

    DATES:

    This temporary rule is effective from 12:01 a.m., local time, February 20, 2018, through June 30, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Kelli O'Donnell, NMFS Southeast Regional Office, telephone: 727-824-5305, email: [email protected]

    SUPPLEMENTARY INFORMATION:

    The fishery for coastal migratory pelagic fish includes king mackerel, Spanish mackerel, and cobia, and is managed under the Fishery Management Plan for the Coastal Migratory Pelagic Resources of the Gulf of Mexico and Atlantic Region (FMP). The FMP was prepared by the Gulf of Mexico and South Atlantic Fishery Management Councils and is implemented by NMFS under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622. All weights for Gulf migratory group king mackerel (Gulf king mackerel) below apply as either round or gutted weight.

    On April 11, 2017, NMFS published a final rule to implement Amendment 26 to the FMP in the Federal Register (82 FR 17387). That final rule adjusted the management boundaries, zones, and annual catch limits for Gulf king mackerel. King mackerel in the Gulf is divided into western, northern, and southern zones, which have separate commercial quotas.

    The southern zone for Gulf king mackerel encompasses an area of the exclusive economic zone (EEZ) south of a line extending due west from the boundary of Lee and Collier Counties on the Florida west coast, and south of a line extending due east from the boundary of Monroe and Miami-Dade Counties on the Florida east coast, which includes the EEZ off Collier and Monroe Counties in south Florida (50 CFR 622.369(a)(1)(iii)).

    The commercial quota for the hook-and-line component of the commercial sector in the southern zone is 596,400 lb (270,522 kg) for the current fishing year, July 1, 2017, through June 30, 2018 (50 CFR 622.384(b)(1)(iii)(A)).

    Under 50 CFR 622.8(b) and 622.388(a)(1), NMFS is required to close any component of the king mackerel commercial sector when its quota has been reached, or is projected to be reached, by filing a notification at the Office of the Federal Register. NMFS has determined the commercial quota for the hook-and-line component of the commercial sector for Gulf king mackerel in the southern zone will be reached by February 20, 2018. Accordingly, the hook-and-line component of the commercial sector for Gulf migratory group king mackerel in the southern zone is closed effective at 12:01 a.m., local time, February 20, 2018, through the end of the fishing year on June 30, 2018.

    During the commercial hook-and-line closure in the southern zone, no person aboard a vessel for which a valid commercial permit for king mackerel has been issued may harvest or possess Gulf migratory group king mackerel in or from Federal waters of the closed zone, as specified in 50 CFR 622.384(e), unless a valid Federal commercial gillnet permit for king mackerel has been issued to the vessel and the gillnet fishery is open. There is one other exception. A person aboard a vessel that has a valid Federal charter vessel/headboat permit and also has a commercial king mackerel permit for coastal migratory pelagic fish may continue to retain king mackerel in or from the closed zone under the 3-fish daily recreational bag limit, provided the vessel is operating as a charter vessel or headboat, and as long as the recreational sector for Gulf king mackerel is open. Charter vessels or headboats that have a valid commercial king mackerel permit are considered to be operating as a charter vessel or headboat when they carry a passenger who pays a fee or when more than three persons are aboard, including operator and crew.

    Also during the closure, king mackerel caught with hook-and-line gear from the closed zone, including those harvested under the bag and possession limits, may not be purchased or sold. This prohibition does not apply to king mackerel caught with hook-and-line gear from the closed zone that were harvested, landed ashore, and sold prior to the closure and were held in cold storage by a dealer or processor (50 CFR 622.384(e)(2)).

    Classification

    The Regional Administrator for the NMFS Southeast Region has determined this temporary rule is necessary for the conservation and management of Gulf king mackerel and is consistent with the Magnuson-Stevens Act and other applicable laws.

    This action is taken under 50 CFR 622.8(b) and 622.388(a)(1), and is exempt from review under Executive Order 12866.

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

    This action responds to the best scientific information available. The Assistant Administrator for NOAA Fisheries (AA) finds good cause to waive the requirements to provide prior notice and opportunity for public comment on this temporary rule pursuant to the authority set forth in 5 U.S.C. 553(b)(B), as such procedures are unnecessary and contrary to the public interest. Such procedures are unnecessary because the rule implementing the commercial quota and the associated AM has already been subject to notice and public comment, and all that remains is to notify the public of the closure. Additionally, allowing prior notice and opportunity for public comment is contrary to the public interest because of the need to implement immediately this action to protect the king mackerel stock, because the capacity of the fishing fleet allows for rapid harvest of the commercial quota. Prior notice and opportunity for public comment would require time and could potentially result in a harvest well in excess of the established commercial quota.

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

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: February 16, 2018. Emily H. Menashes, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2018-03651 Filed 2-16-18; 4:15 pm] BILLING CODE 3510-22-P
    83 36 Thursday, February 22, 2018 Proposed Rules DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 25 [Docket No. FAA-2018-0011; Notice No. 25-18-01-SC] Special Conditions: SWS Certification Services, Ltd., Boeing Model 747-8 Airplanes; Installation of an Overhead Passenger-Sleeping Compartment in the Main Deck AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed special conditions.

    SUMMARY:

    This action proposes special conditions for the Boeing Model 747-8 airplane. This airplane, as modified by SWS Certification Services, Ltd. (SWS), will have a novel or unusual design feature when compared to the state of technology envisioned in the airworthiness standards for transport-category airplanes. This design feature is the installation of an overhead passenger-sleeping compartment in the main deck. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These proposed special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

    DATES:

    Send your comments on or before March 14, 2018.

    ADDRESSES:

    Send comments identified by docket number FAA-2018-0011 using any of the following methods:

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

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

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

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

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

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

    FOR FURTHER INFORMATION CONTACT:

    Alan Sinclair, FAA, Airframe and Cabin Safety Section, AIR-675, Transport Standards Branch, Policy and Innovation Division, Aircraft Certification Service, 1601 Lind Avenue SW, Renton, Washington 98057-3356; telephone 425-227-2195; facsimile 425-227-1320.

    SUPPLEMENTARY INFORMATION:

    Comments Invited

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

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

    Background

    On February 10, 2016, SWS applied for a supplemental type certificate for the installation of overhead passenger-sleeping compartments in the main deck of Boeing Model 747-8 airplanes. The Model 747-8 airplane is a wide-body airplane equipped with four turbofan engines. This airplane has a maximum seating capacity of 605 passengers and 12 cabin crewmembers, and has a maximum takeoff weight of 987,000 lbs.

    Type Certification Basis

    Under the provisions of title 14, Code of Federal Regulations (14 CFR) 21.101, SWS must show that the Boeing Model 747-8 airplane, as changed, continues to meet the applicable provisions of the regulations listed in Type Certificate No. A20WE, or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA. The regulations listed in the type certificate are commonly referred to as the “type certification basis.” The certification basis for the Model 747-8 is part 25, as amended by amendment 25-1 through amendment 25-120, with exceptions permitted by § 21.101.

    In addition, the certification basis includes certain special conditions, exemptions, or later amended sections of the applicable part that are not relevant to these proposed special conditions.

    If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Boeing Model 747-8 airplane because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

    Special conditions are initially applicable to the model for which they are issued. Should the applicant apply for a supplemental type certificate to modify any other model included on the same type certificate to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.

    In addition to the applicable airworthiness regulations and special conditions, the Model 747-8 airplane must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34, and the noise-certification requirements of 14 CFR part 36.

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

    Novel or Unusual Design Features

    The Boeing Model 747-8 airplane, as modified by SWS, will incorporate the following novel or unusual design feature: Overhead passenger-sleeping compartments in the main deck.

    Discussion

    SWS, located in the United Kingdom, proposes to install an AeroloftTM Overhead Passenger Sleeping/Rest Compartment (OPSC) in the crown area of the Boeing Model 747-8 airplane, in front of the Overhead Flight Attendant Rest (OFAR) Compartment. The operation of this airplane is limited for private use only, not for hire, not for common carriage. The OPSC is similar in function and design to the OFAR but will be for passenger use. Specifically, the OPSC consists of eight passenger-sleeping compartments, with single occupancy for each compartment. The OPSC includes a station for a trained flight attendant, and is intended for in-flight use only; not during taxi, takeoff, or landing. The size of the installation is similar to the OFAR and will have a separate staircase for access in the front of the compartment, in the main deck near the door 4 area. The OPSC is open for passengers only when a flight attendant is present in the OPSC. This dedicated flight attendant is allocated for passenger briefing on emergency procedures, evacuation, and for the use of emergency equipment and systems within the OPSC.

    These special conditions establish seating, communication, lighting, personal safety, and evacuation requirements for the OPSC compartment. In addition, passenger information signs and placards, supplemental oxygen, and a seat or berth for each occupant of the OPSC compartment are required. These items are necessary because of turbulence and/or decompression. When applicable, the requirements parallel the existing requirements for an overhead service compartment, and provide an equivalent level of safety to that provided for main-deck occupants.

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

    Applicability

    As discussed above, these special conditions are applicable to the Boeing Model 747-8 airplane as modified by SWS. Should SWS apply at a later date for a supplemental type certificate to modify any other model included on Type Certificate No. A20WE, to incorporate the same novel or unusual design feature, these special conditions would apply to that model as well.

    Conclusion

    This action affects only certain novel or unusual design features on one model series of airplane. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on the airplane.

    List of Subjects in 14 CFR Part 25

    Aircraft, Aviation safety, Reporting and recordkeeping requirements.

    The authority citation for these special conditions is as follows:

    Authority:

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

    The Proposed Special Conditions

    Accordingly, the Federal Aviation Administration (FAA) proposes the following special conditions as part of the type certification basis for Boeing Model 747-8 airplanes, operated for private use only, not for hire, not for common carriage, as modified by SWS Certification Services, Ltd.

    (1) During flight, occupancy of the Overhead Passenger Sleeping/Rest Compartment is limited to the total number of installed bunks in the compartment that are approved to the maximum flight-loading conditions. Therefore, the OPSC is limited to a maximum of eight occupants for in-flight use only.

    (a) Occupancy of the OPSC is for passengers only when a dedicated flight attendant is present in the OPSC.

    (b) The OPSC design must include appropriate placards located inside and outside each entrance to the OPSC to indicate:

    (i) The maximum number of eight occupants allowed during flight.

    (ii) Occupancy is prohibited during taxi, take-off, and landing.

    (iii) Smoking is prohibited in the OPSC.

    (iv) Stowage in the OPSC area is limited to personal luggage. The stowage of cargo is not allowed.

    (c) The airplane must contain at least one ashtray on both the inside and the outside of any entrance to the OPSC.

    (2) The following requirements are applicable to OPSC door(s):

    (a) For any door installed between the OPSC and the passenger cabin, a means must be provided to allow the door to be quickly opened from inside the OPSC, even when crowding from an emergency evacuation occurs at each side of the door.

    (b) Doors installed across emergency egress routes must have a means to latch them in the open position. The latching means must be able to withstand the loads imposed upon it when the door is subjected to the ultimate inertia forces, relative to the surrounding structure, listed in § 25.561(b).

    (c) The OPSC design must include a placard displayed in a conspicuous location on the outside of the entrance door of the OPSC, and on any other door(s) installed across emergency egress routes of the OPSC, requiring those doors to be latched closed during taxi, takeoff, and landing (TT&L).

    (i) This requirement does not apply to emergency-escape hatches installed in the OPSC.

    (ii) The OPSC design must include a placard displayed in a conspicuous place on the outside of the entrance door to the OPSC that requires the door to be closed and locked when it is not occupied.

    (iii) The design-approval holder must transmit procedures for meeting these requirements to the operator for incorporation into training programs and appropriate operational manuals.

    (d) For all outlet doors installed in the OPSC, a means must be in place to preclude anyone from being trapped inside the OPSC. If the design installs a locking mechanism, the locking mechanism must be capable of being unlocked from the outside without the aid of special tools. The lock must not prevent opening from the inside of the OPSC at any time.

    (3) At least two emergency-evacuation routes must be available, and which could be used by each occupant of the OPSC to rapidly evacuate to the main cabin. A person must be able to close these evacuation routes from the main passenger cabin after evacuation. In addition;

    (a) The design must include routes with sufficient separation within the OPSC to minimize the possibility of an event either inside or outside of the OPSC, rendering both routes inoperative. The design-approval holder may show compliance by inspection or by analysis. Regardless of which method is used, the maximum acceptable distance between OPSC exits is 60 feet.

    (b) The design-approval holder must design routes to minimize the possibility of blockage, which might result from fire, mechanical or structural failure, or persons standing below or against the OPSC outlets. If an evacuation route is in an area where normal movement or evacuation of passengers occurs, the applicant must demonstrate that passengers would not impede egress to the main deck. If low headroom is at or near the evacuation route, the design must make provisions to prevent or to protect occupants of the OPSC from head injury. Use of evacuation routes must not depend on any powered device. If an OPSC evacuation route outlet is over an area of passenger seats, the design may allow the temporary displacement of a maximum of five passengers from their seats during the process of evacuating an incapacitated person(s). If such an evacuation procedure involves the evacuee stepping on seats, the evacuee must not damage seats to the extent that the seats would not be acceptable for occupancy during an emergency landing.

    (c) The design-approval holder must establish emergency-evacuation procedures, including procedures for emergency evacuation of an incapacitated occupant from the OPSC. The design-approval holder must transmit all of these procedures to the operator for incorporation into training programs and appropriate operational manuals.

    (d) The design-approval holder must include a limitation in the airplane flight manual (AFM), or other suitable means, to require that crewmembers are trained in the use of the OPSC evacuation routes. This training must instruct crewmembers to ensure that the OPSC (including seats, doors, etc.) is in the proper TT&L configuration during TT&L.

    (e) In the event no flight attendant is present in the area around the OPSC outlet door, and also during an emergency, including an emergency evacuation, a means must be available to prevent passengers from entering the OPSC.

    (f) Doors or hatches separating the OPSC from the main deck must not adversely affect evacuation of occupants on the main deck (slowing evacuation by encroaching into aisles, for example), or cause injury to those occupants during opening or while opened.

    (g) The means of opening outlet doors and hatches to the OPSC compartment must be simple and obvious. The OPSC compartment outlet doors and hatches must be able to be closed from the main passenger cabin.

    (4) A means must be available for evacuating an incapacitated person (representative of a 95th percentile male) from the OPSC compartment to the passenger cabin floor. The design-approval holder must demonstrate such an evacuation for all evacuation routes.

    (5) The design-approval holder must provide the following signs and placards in the OPSC, and the signs and placards must meet the following criteria:

    (a) At least one exit sign, located near each OPSC evacuation-route outlet, meeting the emergency-lighting requirements of § 25.812(b)(1)(i). One allowable exception would be a sign with reduced background area of no less than 5.3 square inches (excluding the letters), provided that it is installed so that the material surrounding the exit sign is light in color (white, cream, light beige, for example). If the material surrounding the exit sign is not light in color, a sign with a minimum of a one-inch-wide background border around the letters would be acceptable. Another allowable exception is a sign with a symbol that the FAA has determined to be equivalent for use as an exit sign in an OPSC.

    (b) The OPSC design must conspicuously locate an appropriate placard on or near each OPSC outlet door or hatch that defines the location and the operating instructions for access to, and operation of, the outlet door or hatch.

    (c) Placards must be readable from a distance of 30 inches under emergency lighting conditions.

    (d) The design must illuminate the door or hatch handles and operating-instruction placards, required by Special Condition 5b of these special conditions, to at least 160 microlamberts under emergency-lighting conditions.

    (6) An automatic means of emergency illumination must be available in the OPSC in the event of failure of the airplane main power system, or failure of the normal OPSC lighting system.

    (a) The design must power this emergency illumination independently of the main lighting system.

    (b) The sources of general cabin illumination may be common to both the emergency and the main lighting systems if the power supply to the emergency lighting system is independent of the power supply to the main lighting system.

    (c) The illumination level must be sufficient to allow occupants of the OPSC to locate and move to the main passenger cabin floor by means of each evacuation route.

    (d) The illumination level must be sufficient, with the privacy curtains in the closed position, for each occupant of the OPSC compartment to locate a deployed oxygen mask.

    (7) A means must be available for two-way voice communications between crewmembers on the flight deck and occupants of the OPSC. Two-way communications must also be available, between occupants of the OPSC and each flight-attendant station in the passenger cabin, per § 25.1423(g) for areas required to have a public-address-system microphone. In addition, the public-address system must include provisions to provide only the relevant information to the crewmembers in the OPSC (e.g., fire in flight, airplane depressurization, preparation of the compartment for landing, etc.). That is, provisions must be made so that occupants of the OPSC will not be disturbed with normal, non-emergency announcements made to the passenger cabin.

    (8) A means must be available for manual activation of an aural emergency-alarm system, audible during normal and emergency conditions, to enable crewmembers on the flight deck and at each pair of required floor-level emergency exits to alert occupants of the OPSC of an emergency situation. Use of a public-address or crew-interphone system will be acceptable, provided an adequate means of differentiating between normal and emergency communications is incorporated. The design must power the system in flight, after the shutdown or failure of all engines and auxiliary power units, for a period of at least ten minutes.

    (9) A means must be in place, readily detectable by seated or standing occupants of the OPSC, to indicate when seat belts should be fastened. The design must provide seatbelt-type restraints for berths and must be compatible with the sleeping position during cruise conditions. A placard on each berth must require that these restraints be fastened when occupied. If compliance with any of the other requirements of these special conditions is predicated on specific head position, a placard must identify that head position.

    (10) In lieu of the requirements specified in § 25.1439(a) pertaining to isolated compartments, and to provide a level of safety equivalent to that provided to occupants of an isolated galley, the design must provide the following equipment in the OPSC:

    (a) At least one approved, hand-held fire extinguisher appropriate for the kinds of fires likely to occur.

    (b) Two protective breathing equipment (PBE) devices, suitable for firefighting, or one PBE for each hand-held fire extinguisher, whichever is greater. All PBE devices must be approved to Technical Standard Order (TSO)-C116 or equivalent.

    (c) One flashlight.

    Note:

    The design may require additional PBE devices and fire extinguishers in specific locations, beyond the minimum numbers prescribed in Special Condition 10 as a result of the egress analysis accomplished to satisfy Special Condition 4.

    (11) The design must provide a smoke- or fire-detection system (or systems) to monitor each occupiable space within the OPSC, including those areas partitioned with curtains or doors. The design-approval holder must conduct flight tests to show compliance with this requirement. If a fire occurs, each system must provide:

    (a) A visual indication to the flight deck within one minute after the start of a fire.

    (b) An aural warning in the OPSC compartment.

    (c) A warning in the main passenger cabin. A flight attendant must readily detect this warning, taking into consideration the locations of flight attendants throughout the main passenger compartment during various phases of flight.

    (12) The design must provide a means to fight a fire. This ability can be either a built-in extinguishing system or a manual, hand-held extinguishing system.

    (a) For a built-in extinguishing system:

    (i) The system must have adequate capacity to suppress a fire considering the fire threat, volume of the compartment, and the ventilation rate. The system must have sufficient extinguishing agent to provide an initial knockdown and suppression environment per the minimum performance standards that have been established for the agent being used. In addition, certification flight testing will verify the acceptable duration that the suppression environment can be maintained.

    (ii) If the capacity of the extinguishing system does not provide effective fire suppression that will last for the duration of flight from the farthest point in route to the nearest suitable landing site expected in service, the design-approval holder must establish an additional manual firefighting procedure. For the built-in extinguishing system, the design must establish and document the time duration for effective fire suppression in the firefighting procedures in the AFM. If the duration of time for demonstrated effective fire suppression provided by the built-in extinguishing agent will be exceeded, the firefighting procedures must instruct the crew to:

    (1) Enter the OPSC at the time that demonstrated fire-suppression effectiveness will be exceeded.

    (2) Check for and extinguish all residual fire.

    (3) Confirm that the fire is out.

    (b) For a manual, hand-held extinguishing system (designed as the sole means to fight a fire or to supplement a built-in extinguishing system of limited suppression duration) for the OPSC:

    (i) The design-approval holder must include a limitation in the AFM or other suitable means requiring that crewmembers be trained in firefighting procedures.

    (ii) The OPSC design must allow crewmembers equipped for firefighting to have unrestricted access to all parts of the OPSC.

    (iii) The time for a crewmember on the main deck to react to the fire alarm, don the firefighting equipment, and gain access to the OPSC must not exceed the time it would take for the compartment to become filled with smoke, thus making it difficult to locate the fire source.

    (iv) The design-approval holder must establish approved procedures describing methods for searching the OPSC for fire source(s). The design-approval holder must transmit these procedures to the operator for incorporation into its training programs and appropriate operational manuals.

    (13) Design must provide a means to prevent hazardous quantities of smoke or extinguishing agent, originating in the OPSC, from entering any other occupiable compartment.

    (a) Small quantities of smoke may penetrate from the OPSC into other occupied areas during the one-minute smoke detection time.

    (b) A provision in the firefighting procedures must ensure that all doors and hatches at the OPSC outlets are closed after evacuation of the compartment and during firefighting to minimize smoke and extinguishing agent entering other occupiable compartments.

    (c) All smoke entering any occupiable compartment, when access to the OPSC is open for evacuation, must dissipate within five minutes after the access to the OPSC is closed.

    (d) Hazardous quantities of smoke may not enter any occupied compartment during access to manually fight a fire in the OPSC. The amount of smoke entrained by a firefighter exiting the OPSC is not considered hazardous.

    (e) The design-approval holder must conduct flight tests to show compliance with this requirement.

    (14) A supplemental oxygen system within the OPSC must provide the following:

    (a) At least one oxygen mask for each berth in the OPSC.

    (b) If the OPSC provides a destination area (such as a changing area), an oxygen mask must be readily available for each occupant who can reasonably be expected to be in the destination area, with the maximum number of required masks within the destination area being limited to the placarded maximum occupancy of the OPSC.

    (c) An oxygen mask must be readily accessible to each occupant who can reasonably be expected to be moving from the main cabin into the OPSC, moving around within the OPSC, or moving from the OPSC to the main cabin.

    (d) The system must provide an aural and visual alert to warn occupants of the OPSC to don oxygen masks in the event of decompression. The aural and visual alerts must activate concurrently with deployment of the oxygen masks in the passenger cabin. To compensate for sleeping occupants, the aural alert must be heard in each section of the OPSC and must sound continuously for a minimum of five minutes or until a reset switch within the OPSC is activated. A visual alert that informs occupants that they must don an oxygen mask must be visible in each section.

    (e) The design must provide a means by which oxygen masks can be manually deployed from the flight deck.

    (f) The design-approval holder must establish approved procedures for the OPSC in the event of decompression. The design-approval holder must transmit these procedures to the operator for incorporation into its training programs and appropriate operational manuals.

    (g) The supplemental oxygen system for the OPSC must meet the same part 25 regulations as the supplemental oxygen system for the passenger cabin occupants, except for the 10 percent additional-masks requirement of § 25.1447(c)(1).

    (15) The following additional requirements apply to an OPSC that are divided into several sections by the installation of curtains or partitions:

    (a) The OPSC design requires a placard adjacent to each curtain that visually divides or separates, for example, for privacy purposes, the OPSC into multiple sections. The placard must require that the curtain(s) remains open when the section it creates is unoccupied. The vestibule section adjacent to the stairway is not considered a private section and, therefore, does not require a placard.

    (b) For each section of the OPSC created by the installation of a curtain, the following requirements of these special conditions must be met with the curtain open or closed:

    (i) No-smoking placard requirement (Special Condition 1).

    (ii) Emergency illumination requirement (Special Condition 6).

    (iii) Emergency alarm-system requirement (Special Condition 8).

    (iv) Seatbelt-fasten signal or return-to-seat signal as applicable requirement (Special Condition 9).

    (v) Smoke- or fire-detection system requirement (Special Condition 11).

    (vi) Oxygen-system requirement (Special Condition 14).

    (c) OPSC that are visually divided to the extent that evacuation could be adversely affected must have exit signs directing occupants to the primary stairway outlet. The design must provide exit signs in each separate section of the OPSC, except for curtained bunks, and must meet requirements of § 25.812(b)(1)(i). The design-approval holder may use an exit sign with reduced background area or a symbolic exit sign, as described in special condition 5a, to meet this requirement.

    (d) For sections within an OPSC created by the installation of a rigid partition with a door separating the sections, the design must meet the following special conditions with the door open or closed:

    (i) A secondary evacuation route from each section to the main deck, or the applicant must show that any door between the sections precludes anyone from being trapped inside a section of the compartment. The design must consider the removal of an incapacitated occupant from within this area. The design does not require a secondary evacuation route from a small room designed for only one occupant for a short time duration, such as a changing area or lavatory, but the design must consider the removal of an incapacitated occupant from within such a small room.

    (ii) The design-approval holder must show any door between the sections to be openable when crowded against, even when crowding occurs at each side of the door.

    (iii) The design may locate no more than one door between any seat or berth and the primary stairway door.

    (iv) In each section, exit signs meeting the requirements of § 25.812(b)(1)(i), or shown to have an equivalent level of safety, must direct occupants to the primary stairway outlet. The design may use an exit sign with reduced background area, or a symbolic exit sign, as described in special condition 5a, to meet this requirement.

    (v) The design must meet special conditions 1 (no-smoking placards), 6 (emergency illumination), 8 (emergency alarm system), 9 (fasten-seatbelt signal or return-to-seat signal as applicable), 11 (smoke- or fire-detection system), and 14 (oxygen system) with the OPSC door open or closed.

    (vi) The design must meet special conditions 7 (two-way voice communication) and 10 (emergency firefighting and protective equipment) independently for each separate section, except for lavatories or other small areas that are not intended to be occupied for extended periods of time.

    (16) If a waste-disposal receptacle is fitted in the OPSC, it must be equipped with an automatic fire extinguisher that meets the performance requirements of § 25.854(b).

    (17) Materials (including finishes or decorative surfaces applied to the materials) must comply with the flammability requirements of § 25.853 as amended by amendment 25-116 or later. Seat cushions and mattresses must comply with the flammability requirements of § 25.853(c) as amended by amendment 25-116 or later, and the test requirements of part 25, appendix F, part II, or other equivalent methods.

    (18) The addition of a lavatory within the OPSC would require the lavatory to meet the same requirements as those for a lavatory installed on the main deck, except with regard to special condition 11 for smoke detection.

    (19) The design must completely enclose each stowage compartment in the OPSC, except for underseat compartments for occupant convenience. All enclosed stowage compartments within the OPSC that are not limited to stowage of emergency equipment or airplane-supplied equipment (i.e., bedding) must meet the design criteria described in the table below. Enclosed stowage compartments greater than 200 ft.3 in interior volume are not addressed by this special condition. The in-flight accessibility of very large, enclosed, stowage compartments and the subsequent impact on the crewmembers' ability to effectively reach any part of the compartment with the contents of a hand-held fire-extinguishing system, will require additional fire-protection considerations similar to those required for inaccessible compartments such as Class C cargo compartments.

    (20) The AFM must state that this airplane is to be operated for private use only, not for hire, not for common carriage.

    Design Criteria for Enclosed Stowage Compartments Not Limited to Stowage of Emergency or Airplane-Supplied Equipment Fire protection features Applicability of fire protection requirements by interior volume less than 25 ft3 25 ft3 to 57 ft3 57 ft3 to 200 ft3 Compliant Materials of Construction 1 Yes Yes Yes Smoke or Fire Detectors 2 No Yes Yes Liner 3 No Conditional Yes Fire Location Detector 4 No Yes Yes 1Compliant Materials of Construction: The material used in constructing each enclosed stowage compartment must at least be fire resistant and must meet the flammability standards established for interior components (i.e., part 25 Appendix F, Parts I, IV, and V) per the requirements of § 25.853. For compartments less than 25 ft.3 in interior volume, the design must ensure the ability to contain a fire likely to occur within the compartment under normal use. 2Smoke or Fire Detectors: Enclosed stowage compartments equal to or exceeding 25 ft.3 in interior volume must be provided with a smoke- or fire-detection system to ensure that a fire can be detected within a one-minute detection time. Flight tests must be conducted to show compliance with this requirement. Each system (or systems) must provide: (a) A visual indication in the flight deck within one minute after the start of a fire. (b) An aural warning in the OPSC. (c) A warning in the main passenger cabin. This warning must be readily detectable by a flight attendant, taking into consideration the locations of flight attendants throughout the main passenger compartment during various phases of flight. 3Liner: If material used in constructing the stowage compartment can be shown to meet the flammability requirements of a liner for a Class B cargo compartment (i.e., § 25.855 at amendment 25-116, and Appendix F, part I, paragraph (a)(2)(ii)), then no liner would be required for enclosed stowage compartments equal to or greater than 25 ft.3 but less than 57 ft.3 in interior volume. For all enclosed stowage compartments equal to or greater than 57 ft.3 in interior volume but less than or equal to 200 ft.3, a liner must be provided that meets the requirements of § 25.855 for a Class B cargo compartment. 4Fire-Location Detector: If an OPSC has enclosed stowage compartments exceeding 25 ft.3 interior volume and that are located separately from the other stowage compartments (located, for example, away from one central location, such as the entry to the OPSC or a common area within the OPSC, where the other stowage compartments are), that OPSC would require additional fire-protection features or devices to assist the firefighter in determining the location of a fire. Issued in Renton, Washington, on February 15, 2018. Victor Wicklund, Manager, Transport Standards Branch, Policy and Innovation Division, Aircraft Certification Service.
    [FR Doc. 2018-03587 Filed 2-21-18; 8:45 am] BILLING CODE 4910-13-P
    FEDERAL TRADE COMMISSION 16 CFR Part 18 Guides for the Nursery Industry AGENCY:

    Federal Trade Commission.

    ACTION:

    Regulatory review; request for public comment.

    SUMMARY:

    The Federal Trade Commission (“FTC” or “Commission”) requests public comments on its Guides for the Nursery Industry (“Nursery Guides” or “Guides”). The Commission is soliciting the comments as part of the Commission's systematic review of all current Commission regulations and guides.

    DATES:

    Comments must be received by April 20, 2018.

    ADDRESSES:

    Interested parties may file a comment online or on paper by following the instructions in the Request for Comment part of the SUPPLEMENTARY INFORMATION section below. Write “Nursery Guides, P994248” on your comment, and file your comment online at https://ftcpublic.commentworks.com/ftc/nurseryguides by following the instructions on the web-based form. If you prefer to file your comment on paper, mail your comment to the following address: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW, Suite CC-5610 (Annex A), Washington, DC 20580, or deliver your comment to the following address: Federal Trade Commission, Office of the Secretary, Constitution Center, 400 7th Street SW, 5th Floor, Suite 610, Washington, DC 20024.

    FOR FURTHER INFORMATION CONTACT:

    Megan Gray, (202) 326-3408, [email protected], Attorney, Division of Enforcement, Bureau of Consumer Protection, Federal Trade Commission, Room CC-9541, 600 Pennsylvania Avenue NW, Washington, DC 20580.

    SUPPLEMENTARY INFORMATION: I. Background

    The Commission issued the Guides for the Nursery Industry in 1979.1 These Guides address numerous sales practices for outdoor plants, including deceptive claims regarding quantity, size, grade, kind, species, age, maturity, condition, vigor, hardiness, growth ability, price, and origin or place where grown. As part of its periodic regulatory review, the Commission substantively amended the Nursery Guides in 1994 and adopted a technical amendment to the Guides in 2007.2

    1 Industry guides are administrative interpretations of laws administered by the Commission. 16 CFR 1.5.

    2See 59 FR 64546 (December 14, 1994); 72 FR 902 (January 9, 2007).

    II. Regulatory Review Program

    The Commission periodically reviews all Commission rules and guides. These reviews seek information about the costs and benefits of the Commission's rules and guides and their economic impact. The information obtained assists the Commission in identifying rules and guides that warrant modification or rescission. Therefore, the Commission solicits comment on, among other things, the economic impact of and the continuing need for its Nursery Guides; possible conflict between the Guides and state, local, federal, or international laws; and the effect of any technological, economic, environmental, or other industry changes on the Guides.

    III. Request for Comment

    The Commission is particularly interested in comments and supporting data on the following questions. These questions are designed to assist the public and should not be construed as a limitation on the issues on which public comment may be submitted. In their replies to each of these questions, commenters should provide any available evidence and data, such as empirical data, consumer perception studies, or consumer complaints, that support the commenter's asserted position.

    (1) Is there a continuing need for the Nursery Guides as currently promulgated?

    (2) Are any specific provisions of the Guides no longer necessary?

    (3) Are the deceptive or unfair practices addressed by the Guides prevalent in the marketplace? Are the Guides effective in addressing those practices? Are there deceptive or unfair practices in the selling of plants that are not covered by the Guides, such as vegetable plants marketed to consumers? Should the Guides be extended to cover other types of plants that consumers purchase? Are there alternatives, such as individual enforcement actions under the FTC Act, that would be more effective or equally effective in addressing those practices?

    (4) Have covered businesses adopted the Nursery Guides as part of their routine business practice? What is the degree of compliance with the Guides? How, and what effect, if any, does this have on the continuing need for the Guides? Do covered businesses self-regulate or have voluntary standards or guidance, such as through trade associations, that overlap with the Guides?

    (5) What benefits, if any, have the Nursery Guides provided to consumers of the products affected by the Guides? Do the Guides impose any significant costs on consumers?

    (6) What impact, if any, have the Guides had on the flow of truthful or deceptive information to consumers?

    (7) What changes, if any, should be made to the Nursery Guides to increase their benefits to consumers or reduce their costs to businesses? How would these changes affect consumer benefits or business costs?

    (8) What burdens or costs, including costs of compliance, have the Guides imposed on covered businesses? What burdens or costs have the Guides imposed on small businesses in particular? Have the Guides provided benefits to businesses? If so, what benefits?

    (9) What changes, if any, should be made to the Guides to reduce the burdens or costs imposed on businesses? In particular, should the Commission eliminate Section 18.7 (Misrepresentation as to character of business)? Does this section imply that occupational licensing is a prerequisite for covered businesses? How would these changes affect the benefits provided by the Guides?

    (10) Is it necessary to include reference works in the Note to Section 18.2? Are the reference works in the Note to Section 18.2 authoritative and readily and freely available to the public? If not, are there updated editions that are more authoritative and readily and freely available? Are there other works in the public domain that the Commission should consider in determining whether claims made for a covered plant's quality, size, grade, kind, species, age, maturity, condition, etc. are truthful and non-misleading? For example, do federal or state agricultural authorities provide guidance sufficient for the Commission, consumers, and covered businesses to determine whether claims made for covered products are truthful and non-misleading?

    (11) Is it necessary to include the mention in the Note to Section 18.2 of “plant name lists periodically published by the plant societies and the horticultural organizations selected as international and national cultivar registration authorities as enumerated in Appendix of Naming and Registering New Cultivars?” Is the plant name list sufficiently specific to be useful to consumers or businesses? Can more specificity be provided as to which international and national cultivar registration authorities are relevant, and how to locate the Appendix of Naming and Registering New Cultivars?

    (12) Should the Commission remove mentions of “industry recommendation” and “industry consensus” from the Notes to Sections 18.2 and 18.4? Should the Commission include in the Guides only its own views, consistent with the Guide's purpose of furthering the public interest in preventing deception?

    (13) Do the Guides overlap or conflict with federal, state, or local laws or regulations? Do the Guides overlap or conflict with any international laws or regulations?

    (14) Have consumer perceptions changed since the Guides were issued and, if so, do these changes warrant revising the Guides?

    (15) Since the Guides were issued, what effects, if any, have changes in relevant technological, economic, or environmental conditions had on the need for or usefulness of the Guides?

    You can file a comment online or on paper. For the Commission to consider your comment, we must receive it on or before April 20, 2018. Write “Nursery Guides, P994248” on your comment. Your comment—including your name and your state—will be placed on the public record of this proceeding, including, to the extent practicable, on the public Commission website, at https://www.ftc.gov/policy/public-comments.

    Postal mail addressed to the Commission is subject to delay due to heightened security screening. As a result, we encourage you to submit your comments online. To ensure the Commission considers your online comment, you must file it at https://ftcpublic.commentworks.com/ftc/nurseryguides, by following the instruction on the web-based form. If this Notice appears at http://www.regulations.gov, you also may file a comment through that website.

    If you file your comment on paper, write “Nursery Guides, P994248” on your comment and on the envelope, and mail it to the following address: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW, Suite CC-5610 (Annex A), Washington, DC 20580, or deliver your comment to the following address: Federal Trade Commission, Office of the Secretary, Constitution Center, 400 7th Street SW, 5th Floor, Suite 5610, Washington, DC 20024. If possible, please submit your paper comment to the Commission by courier or overnight service.

    Because your comment will be placed on the publicly accessible FTC website at https://www.ftc.gov, you are solely responsible for making sure that your comment does not include any sensitive personal information, such as your or anyone's Social Security number; date of birth; driver's license number or other state identification number or foreign country equivalent; passport number; financial account number; or credit or debit card number. You are also solely responsible for ensuring your comment does not include any sensitive health information, such as medical records or other individually identifiable health information. In addition, your comment should not include any “[t]rade secret or any commercial or financial information which . . . is privileged or confidential”—as provided in Section 6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 16 CFR 4.10(a)(2)—including in particular competitively sensitive information such as costs, sales statistics, inventories, formulas, patterns, devices, manufacturing processes, or customer names.

    Comments containing material for which confidential treatment is requested must be filed in paper form, must be clearly labeled “Confidential,” and must comply with FTC Rule 4.9(c). In particular, the written request for confidential treatment that accompanies the comment must include the factual and legal basis for the request, and must identify the specific portions of the comment to be withheld from the public record. See FTC Rule 4.9(c). Your comment will be kept confidential only if the General Counsel grants your request in accordance with the law and the public interest. Once your comment has been posted on the public FTC website—as legally required by FTC Rule 4.9(b)—we cannot redact or remove your comment from the FTC website, unless you submit a confidentiality request that meets the requirements for such treatment under FTC Rule 4.9(c), and the General Counsel grants that request.

    Visit the FTC website to read this Notice and the news release describing it. The FTC Act and other laws that the Commission administers permit the collection of public comments to consider and use in this proceeding as appropriate. The Commission will consider all timely and responsive public comments that it receives on or before April 20, 2018. For information on the Commission's privacy policy, including routine uses permitted by the Privacy Act, see https://www.ftc.gov/site-information/privacy-policy.

    By direction of the Commission.

    Donald S. Clark, Secretary.
    [FR Doc. 2018-03569 Filed 2-21-18; 8:45 am] BILLING CODE 6750-01-P\
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket Number USCG-2018-0086] RIN 1625-AA08 Safety Zone; Pensacola Bay, Pensacola, FL AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    The Coast Guard proposes to establish a temporary safety zone for all navigable waters on Pensacola Bay within 100 yards of each vessel participating in the Tall Ships Pensacola marine event and parade in Pensacola, FL and within 100 yards of the Port of Pensacola for the duration of the marine event and parade. The proposed rulemaking is necessary to provide for the safety of life and property on these navigable waters during the Tall Ships Pensacola marine event. This proposed rulemaking would prohibit persons and vessels from entering the safety zone unless specifically authorized by the Captain of the Port Sector Mobile (COTP) or a designated representative. We invite your comments on this proposed rulemaking.

    DATES:

    Comments and related material must be received by the Coast Guard on or before March 9, 2018.

    ADDRESSES:

    You may submit comments identified by docket number USCG-2018-0086 using the Federal eRulemaking Portal at http://www.regulations.gov. See the “Public Participation and Request for Comments” portion of the SUPPLEMENTARY INFORMATION section for further instructions on submitting comments.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions about this proposed rulemaking, call or email LT Kyle D. Berry, Sector Mobile, Waterways Management Division, U.S. Coast Guard; telephone 251-441-5940, email [email protected].

    SUPPLEMENTARY INFORMATION: I. Table of Abbreviations CFR Code of Federal Regulations COTP Captain of the Port Sector Mobile DHS Department of Homeland Security FR Federal Register MM Mile Marker NPRM Notice of Proposed Rulemaking PATCOM Patrol Commander § Section U.S.C. United States Code II. Background, Purpose, and Legal Basis

    The sponsor for the Tall Ships Pensacola marine event submitted an application for a marine event permit for the event that will take place from 8 a.m. on April 12, 2018 through 8 p.m. on April 15, 2018. The event will consist of a boat parade of the tall ships in Pensacola Bay on April 12, 2018. The event will also consist of several days of public tours and sailings of the tall ships at the Port of Pensacola, Pensacola, FL, which is expected to attract several thousand spectators. The Captain of the Port Sector Mobile (COTP) has determined a safety zone is necessary to protect the public from the potential hazards associated with the tall ships during the organized parade, and public tours and sailings of these tall ships.

    The purpose of this proposed rulemaking is to ensure the safety of vessels and persons during the tall ships' visit on the navigable waters of the Pensacola Bay in Pensacola, FL. The Coast Guard proposes this rulemaking under authority in 33 U.S.C. 1231.

    The Coast Guard is issuing this Notice of Proposed Rulemaking (NPRM) with 15-day prior notice and opportunity to comment pursuant to authority under section (d)(3) of the Administrative Procedure Act (APA) (5 U.S.C. 553(d)). This provision authorizes an agency to publish a rule in less than 30 days before its effective date for “good cause found and published with the rule.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for publishing this NPRM with a 15-day comment period because it is impractical to provide a 30-day comment period. This proposed safety zone is necessary to ensure the safety of vessels and persons during the tall ships' visit to Pensacola. It is impracticable to publish an NPRM with a 30-day comment period because we must establish this safety zone by April 12, 2018.

    III. Discussion of Proposed Rule

    The Coast Guard proposes to establish a temporary safety zone on Pensacola Bay within 100 yards of each vessel participating in the Tall Ships Pensacola marine event from 8 a.m. on April 12, 2018 through 8 p.m. on April 15, 2018, covering each vessel from when the vessel arrives at Pensacola, FL, when moored at the Port of Pensacola, 30°24′07.2″ N, 87°12′44.7″ W, when underway in parade from position 30°24′07.2″ N, 87°12′44.7″ W to 30°19′52.6″ N, 87°18′31.5″ W, and when the vessel departs Pensacola, FL. The Coast Guard also proposes to establish a temporary safety zone on Pensacola Bay within 100 yards of the Port of Pensacola for the duration of the Tall Ships Pensacola marine event from 8 a.m. on April 12, 2018 through 8 p.m. on April 15, 2018. The proposed rulemaking is needed to provide for the safety of life and property on these navigable waters during the Tall Ship Pensacola marine event. This proposed rulemaking restricts transit into, through, and within the zone unless specifically authorized by the COTP or a designated representative. No vessel or person would be permitted to enter the zone without obtaining permission from the COTP or a designated representative. A designated representative may be a Patrol Commander (PATCOM). The PATCOM would be aboard either a Coast Guard or Coast Guard Auxiliary vessel. The PATCOM may be contacted on Channel 16 VHF-FM (156.8 MHz) by the call sign “PATCOM”. All persons and vessels not registered with the sponsor as participants or official patrol vessels are considered spectators. The “official patrol vessels” consist of any Coast Guard, state, or local law enforcement and sponsor provided vessels assigned or approved by the COTP or a designated representative to patrol the zone.

    Spectator vessels desiring to transit the zone may do so only with prior approval of the COTP or a designated representative and when so directed by that officer would be operated at a minimum safe navigation speed in a manner which will not endanger any other vessels. No spectator vessel shall anchor, block, loiter, or impede the through transit of official patrol vessels in the zone during the effective dates and times, unless cleared for entry by or through the COTP or a designated representative. Any spectator vessel may anchor outside the zone, but may not anchor in, block, or loiter in a navigable channel. Spectator vessels may be moored to a waterfront facility within the zone in such a way that they shall not interfere with the progress of the event. Such mooring must be complete at least 30 minutes prior to the establishment of the zone and remain moored through the duration of the event.

    The COTP or a designated representative may forbid and control the movement of all vessels in the zone. When hailed or signaled by an official patrol vessel, a vessel shall come to an immediate stop and comply with the directions given. Failure to do so may result in expulsion from the zone, citation for failure to comply, or both.

    The COTP or a designated representative may terminate the operation of any vessel at any time it is deemed necessary for the protection of life or property. The COTP or a designated representative would terminate enforcement of the safety zone at the conclusion of the event.

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

    IV. Regulatory Analyses

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

    A. Regulatory Planning and Review

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

    This regulatory action determination is based on size, location, and duration of the proposed rulemaking. The proposed safety zone would take place on a small area of Pensacola Bay, lasting for only four days from April 12, 2018 through April 15, 2018. Additionally, the Coast Guard would issue Broadcast Notices to Mariners via VHF-FM marine channel 16 about the safety zone so that waterway users may plan accordingly for transits during this restriction, and the proposed rule would also allow vessels to seek permission from the COTP or a designated representative to enter the zone.

    B. Impact on Small Entities

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

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

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

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

    C. Collection of Information

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

    D. Federalism and Indian Tribal Governments

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

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

    E. Unfunded Mandates Reform Act

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

    F. Environment

    We have analyzed this rule under Department of Homeland Security Directive 023-01, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone on Pensacola Bay within 100 yards of the Port of Pensacola and within 100 yards of any vessel participating in the Tall Ships Pensacola marine event and parade from April 12, 2018 through April 15, 2018. It is categorically excluded from further review under paragraph L60 of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A Record of Environmental Consideration (REC) supporting this determination is available in the docket where indicated under ADDRESSES.

    We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

    G. Protest Activities

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

    V. Public Participation and Request for Comments

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

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

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

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

    List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Waterways.

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

    PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for part 165 continues to read as follows: Authority:

    33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1; 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.

    2. Add § 165.T08-0086 to read as follows:
    § 165.T08-0086 Safety Zone; Pensacola Bay, Pensacola, FL

    (a) Location. The following area is a safety zone: All navigable waters of the Pensacola Bay within 100 yards of each vessel participating in the Tall Ships Pensacola marine event and parade and within 100 yards of the Port of Pensacola, 30°24′07.2″ N, 87°12′44.7″ W, Pensacola, FL.

    (b) Enforcement period. This section is effective from 8 a.m. on April 12, 2018 through 8 p.m. on April 15, 2018.

    (c) Regulations.

    (1) In accordance with the general regulations in § 165.23 of this part, entry into, transiting through, or exiting from this area is prohibited unless authorized by the Captain of the Port Sector Mobile (COTP) or a designated representative. A designated representative may be a Patrol Commander (PATCOM). The PATCOM will be aboard either a Coast Guard or Coast Guard Auxiliary vessel. The PATCOM may be contacted on Channel 16 VHF-FM (156.8 MHz) by the call sign “PATCOM”.

    (3) Persons or vessels seeking to enter into or transit through the zone must request permission from the COTP or a designated representative. They may be contacted on VHF-FM channels 16 or by telephone at 251-441-5976.

    (4) If permission is granted, all persons and vessels must comply with the instructions of the COTP or designated representative.

    (5) All persons and vessels not registered with the event sponsor as participants or official patrol vessels are considered spectators. The “official patrol vessels” consist of any Coast Guard, state, or local law enforcement and sponsor provided vessels assigned or approved by the COTP or a designated representative to patrol the regulated area.

    (6) Spectator vessels desiring to transit the regulated area may do so only with prior approval of the COTP or a designated representative and when so directed by that officer will be operated at a minimum safe navigation speed in a manner that will not endanger participants in the zone or any other vessels.

    (7) No spectator vessel shall anchor, block, loiter, or impede the through transit of participants or official patrol vessels in the regulated area during the effective dates and times, unless cleared for entry by the COTP or a designated representative.

    (8) Any spectator vessel may anchor outside the regulated area, but may not anchor in, block, or loiter in a navigable channel. Spectator vessels may be moored to a waterfront facility within the regulated area in such a way that they shall not interfere with the progress of the event. Such mooring must be complete at least 30 minutes prior to the establishment of the regulated area and remain moored through the duration of the event.

    (9) The COTP or designated representative may forbid and control the movement of all vessels in the regulated area. When hailed or signaled by an official patrol vessel, a vessel shall come to an immediate stop and comply with the directions given. Failure to do so may result in expulsion from the area, citation for failure to comply, or both.

    (10) The COTP or a designated representative may terminate the event or the operation of any vessel at any time it is deemed necessary for the protection of life or property.

    (11) The COTP or a designated representative will terminate enforcement of the safety zone prior to or at the conclusion of the event.

    (d) Informational broadcasts. The COTP or a designated representative will inform the public through Broadcast Notices to Mariners of the enforcement period for the temporary safety zone as well as any changes in the planned schedule.

    Dated: February 15, 2018. M.R. McLellan, Captain, U.S. Coast Guard, Captain of the Port Sector Mobile.
    [FR Doc. 2018-03663 Filed 2-21-18; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket Number USCG-2018-0102] RIN 1625-AA00 Safety Zones; Recurring Events in Captain of the Port Duluth Zone AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    The Coast Guard proposes to amend its safety zones regulations for annual events in the Captain of the Port Duluth Zone. This rule would update the locations for seven safety zones, add three new safety zones, increase the safety zone radius of six existing fireworks events, and modify the format of the regulation to list the annual events and corresponding safety zones in table form. These proposed amendments would protect spectators, participants, and vessels from the hazards associated with annual marine events and improve the clarity and readability of the regulation.

    DATES:

    Comments and related material must be received by the Coast Guard on or before March 26, 2018.

    ADDRESSES:

    You may submit comments identified by docket number USCG-2018-0102 using the Federal eRulemaking Portal at http://www.regulations.gov. Type the docket number (USCG-2018-0102) in the “SEARCH” box and click “SEARCH.” See the “Public Participation and Request for Comments” portion of the SUPPLEMENTARY INFORMATION section for further instructions on submitting comments.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this rule, call or email Lieutenant John Mack, Chief of Waterways Management, Marine Safety Unit Duluth, U.S. Coast Guard; telephone 218-725-3818, email [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Table of Abbreviations CFR Code of Federal Regulations COTP Captain of the Port DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking § Section U.S.C. United States Code II. Background, Purpose, and Legal Basis

    On May 31, 2013 the Coast Guard published an NPRM in the Federal Register (78 FR 32608) entitled “Recurring Events in the Captain of the Port Duluth Zone.” The NPRM proposed to establish 8 permanent safety zones for annually recurring events in the Captain of the Port Duluth Zone under § 165.943. The NPRM was open for comment for 30 days.

    On August 12, 2013 the Coast Guard published the Final Rule in the Federal Register (78 FR 48802), after receiving no comments on the NPRM. Since that time there have been changes to the events that were listed in the Final Rule and additional annual events have been established. Through this proposed rule the Coast Guard seeks to update § 165.943 to reflect the current status of recurring marine events in the Captain of the Port Duluth zone.

    III. Discussion of Proposed Rule

    The Coast Guard is proposing this rule under authority in 33 U.S.C. 1231. The Captain of the Port Duluth (COTP) has determined that an amendment to the recurring events list as published in 33 CFR 165.943 will be necessary to: Update the location of seven existing safety zones (Bridgefest Regatta Fireworks Display, Cornucopia 4th of July Fireworks Display, Duluth 4th Fest Fireworks Display, LaPointe 4th of July Fireworks Display, Point to LaPointe Swim, Lake Superior Dragon Boat Festival, and Superior Man Triathlon), add three new safety zones for additional annual events (City of Bayfield 4th of July Fireworks Display, Two Harbors 4th of July Fireworks Display, and Superior 4th of July Fireworks Display), increase the safety zone radius of six fireworks events (Bridgefest Regatta Fireworks Display, Ashland 4th of July Fireworks Display, Cornucopia 4th of July Fireworks Display, LaPointe 4th of July Fireworks Display, and Lake Superior Dragon Boat Festival), and format the existing regulations into a table format. The purpose of this rule is to ensure safety of vessels and the navigable waters in the safety zone before, during, and after the scheduled events and to improve the overall clarity and readability of the rule. The regulatory text we are proposing appears at the end of this document.

    The amendments to this proposed rule are necessary to ensure the safety of vessels and people during annual events taking place on or near federally maintained waterways in the Captain of the Port Duluth Zone. Although this proposed rule would be in effect year-round, the specific safety zones listed in Table 165.943 would only be enforced during a specified period of time coinciding with the happening of the annual events listed.

    When a Notice of Enforcement for a particular safety zone is published, entry into, transiting through, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Duluth, or his or her designated representative. The Captain of the Port Duluth or his or her designated representative may be contacted via VHF Channel 16 or telephone at (906) 635-3233. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.

    V. Regulatory Analyses

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

    A. Regulatory Planning and Review

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

    This regulatory action determination is based on the size, location, duration, and time-of-day for each safety zone. Vessel traffic would be able to safely transit around all safety zones which would impact small designated areas within Lake Superior for short durations of time. Moreover, the Coast Guard will issue Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone and the rule allows vessels to seek permission to enter the zone.

    B. Impact on Small Entities

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

    While some owners or operators of vessels intending to transit the safety zones 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.

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

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

    C. Collection of Information

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

    D. Federalism and Indian Tribal Governments

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

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

    E. Unfunded Mandates Reform Act

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

    F. Environment

    We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that does not individually or cumulatively have a significant effect on the human environment. This proposed rule involves: The update of seven safety zone locations, the addition of three new safety zones, an increase of size for six safety zone radiuses for fireworks related events, and the reformatting of regulations into an easier to read table format. Normally such actions are categorically excluded from further review under paragraph L60a of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A preliminary Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

    G. Protest Activities

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

    V. Public Participation and Request for Comments

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

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

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

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

    List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and record keeping requirements, Security measures, Waterways.

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

    PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for part 165 continues to read as follows: Authority:

    33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.

    2. Revise § 165.943 to read as follows:
    § 165.943 Safety zones; recurring events in captain of the Port Duluth Zone.

    (a) Regulations. The following regulations apply to the safety zones listed in Table 165.943 of this section:

    (1) The Coast Guard will provide advance notice of the enforcement date and time of the safety zone being enforced in Table 165.943, by issuing a Notice of Enforcement, as well as, a Broadcast Notice to Mariners.

    (2) In accordance with the general regulations in § 165.23 of this part, entry into, transiting, or anchoring in this safety zone is prohibited unless authorized by the Captain of the Port Duluth, or the designated on-scene representative.

    (b) Contacting the Captain of the Port. While a safety zone listed in this section is enforced, the Captain of the Port Duluth or his or her on-scene representative may be contacted via VHF Channel 16 or telephone at (906) 635-3233. Vessel operators given permission to enter or operate in a safety zone must comply with all directions given to them by the Captain of the Port Duluth, or his or her on-scene representative.

    (c) Exemption. Public vessels, defined as any vessel owned or operated by the United States or by State or local governments, operating in an official capacity are exempted from the requirements of this section.

    Table 165.943 [Datum NAD 1983] Event Location Event date (1) Bridgefest Regatta Fireworks Display All waters of the Keweenaw Waterway in Hancock, MI within the arc of a circle with a radius of no more than 1,120 feet from the launch site at position 47°07′22″ N, 088°35′28″ W Mid June. (2) Ashland 4th of July Fireworks Display All waters of Chequamegon Bay in Ashland, WI within the arc of a circle with a radius of no more than 1,120 feet from the launch site at position 46°35′50″ N, 090°52′59″ W On or around July 4th. (3) City of Bayfield 4th of July Fireworks Display All waters of the Lake Superior North Channel in Bayfield, WI within the arc of a circle with a radius of no more than 1,120 feet from the launch site at position 46°48′40″ N, 090°48′32″ W On or around July 4th. (4) Cornucopia 4th of July Fireworks Display All waters of Siskiwit Bay in Cornucopia, WI within the arc of a circle with a radius of no more than 1,120 feet from the launch site at position 46°51′35″ N, 091°06′15″ W On or around July 4th. (5) Duluth 4th Fest Fireworks Display All waters of the Duluth Harbor Basin, Northern Section in Duluth, MN within the arc of a circle with a radius of no more than 1,120 feet from the launch site at position 46°46′14″ N, 092°06′16″ W On or around July 4th. (6) LaPointe 4th of July Fireworks Display All waters of Lake Superior in LaPointe, WI within the arc of a circle with a radius of no more than 1,120 feet from the launch site at position 46°46′40″ N, 090°47′22″ W On or around July 4th. (7) Two Harbors 4th of July Fireworks Display All waters of Agate Bay in Two Harbors, MN within the arc of a circle with a radius of no more than 1,120 feet from the launch site at position 47°00′54″ N, 091°40′04″ W On or around July 4th. (8) Superior 4th of July Fireworks Display All waters of Superior Bay in Superior, WI within the arc of a circle with a radius of no more than 1,120 feet from the launch site at position 46°43′28″ N, 092°03′38″ W On or around July 4th. (9) Point to LaPointe Swim All waters of the Lake Superior North Channel between Bayfield and LaPointe, WI within an imaginary line created by the following coordinates: 46°48′50″ N, 090°48′44″ W, moving southeast to 46°46′44″ N, 090°47′33″ W, then moving northeast to 46°46′52″ N, 090°47′17″ W, then moving northwest to 46°49′03″ N, 090°48′25″ W, and finally returning to the starting position Early August. (10) Lake Superior Dragon Boat Festival Fireworks Display All waters of Superior Bay in Superior, WI within the arc of a circle with a radius of no more than 1,120 feet from the launch site at position 46°43′28″ N, 092°03′47″ W Late August. (11) Superior Man Triathlon All waters of the Duluth Harbor Basin, Northern Section in Duluth, MN within an imaginary line created by the following coordinates: 46°46′36″ N, 092°06′06″ W, moving southeast to 46°46′32″ N, 092°06′01″ W, then moving northeast to 46°46′45″ N, 092°05′45″ W, then moving northwest to 46°46′49″ N, 092°05′49″ W, and finally returning to the starting position Late August.
    Dated: February 14, 2018. E.E. Williams, Commander, U.S. Coast Guard, Captain of the Port Duluth.
    [FR Doc. 2018-03624 Filed 2-21-18; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 660 [Docket No. 171031999-8160-01] RIN 0648-BH40 Fisheries Off West Coast States; West Coast Salmon Fisheries; Management Measures To Limit Fishery Impacts on Sacramento River Winter Chinook Salmon AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Proposed rule; request for comments.

    SUMMARY:

    NMFS proposes to approve new fishery management measures to limit incidental catch of endangered Sacramento River winter Chinook salmon (SRWC) in fisheries managed under the Pacific Fishery Management Council's (Council) Pacific Salmon Fishery Management Plan (FMP). These new management measures replace existing measures, which have been in place since 2012, with updated salmon abundance modeling methods that utilize the best available science and address concerns that the existing measures were overly conservative.

    DATES:

    Comments on this proposed rule must be received on or before March 9, 2018.

    ADDRESSES:

    You may submit comments, identified by NOAA-NMFS-2017-0139, by any one of the following methods:

    Electronic Submissions: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2017-0139, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.

    Mail: Barry A. Thom, Regional Administrator, West Coast Region, NMFS, 7600 Sand Point Way NE, Seattle, WA 98115-0070.

    Instructions: Comments must be submitted by one of the above methods to ensure that the comments are received, documented, and considered by NMFS. Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered. All comments received are a part of the public record and will generally be posted for public viewing on http://www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.) submitted voluntarily by the sender will be publicly accessible. Do not submit confidential business information or otherwise sensitive or protected information. NMFS will accept anonymous comments (enter N/A in the required fields if you wish to remain anonymous).

    FOR FURTHER INFORMATION CONTACT:

    Peggy Mundy at 206-526-4323.

    SUPPLEMENTARY INFORMATION:

    Background

    Ocean salmon fisheries off the coasts of Washington, Oregon, and California are managed by the Council according to the FMP. The FMP includes harvest controls that are used to manage salmon stocks sustainably. The FMP also requires that the Council manage fisheries consistent with “consultation standards” for stocks listed as endangered or threatened under the Endangered Species Act (ESA) for which NMFS has issued biological opinions. NMFS has issued biological opinions for every ESA listed salmon species impacted by the fisheries governed by the FMP, and reminds the Council of requirements to maintain consistency with those opinions (“consultation standards”) in its annual guidance letter to the Council regarding development of the annual ocean salmon management measures.

    SRWC has been listed as endangered under the ESA since 1990 (55 FR 46515, November 5, 1990). These fish are impacted by ocean salmon fisheries south of Point Arena, California; thus NMFS has consulted on these impacts under section 7 of the ESA. Since the original consultation, NMFS has periodically reinitiated consultation on the impacts of ocean salmon fisheries on SRWC, most recently in 2010. In its 2010 biological opinion, NMFS determined that ocean salmon fisheries were likely to jeopardize the continued existence of SRWC, but not modify or destroy critical habitat. To address this jeopardy conclusion, NMFS issued and implemented an interim reasonable and prudent alternative (RPA) for fisheries in 2010 and 2011, and required development of an abundance-based framework for limiting impacts on SRWC during this interim period. In 2012, NMFS issued and implemented the current RPA to limit impacts of fisheries on SRWC. The RPA consists of two parts: Part one includes fishing season and size limit restrictions (see Table 1, below); part two specifies an abundance-based harvest control rule. The harvest control rule uses a forecast abundance that is based on the 3-year geometric mean of prior spawning escapement. At 3-year geometric mean abundance greater than 5,000, no impact rate cap is imposed. At 3-year geometric mean abundance between 5,000 and 4,000, the impact rate cap is 20 percent. At 3-year geometric mean abundance between 4,000 and 500, the impact rate cap declines linearly from 20 percent at 4,000 abundance to 10 percent at 500 abundance. At 3-year geometric mean abundance below 500, the impact rate cap is zero percent.

    Table 1—Fishing Season and Size Restrictions for Ocean Chinook Salmon Fisheries, South of Point Arena, California Fishery Location Shall open
  • no earlier than
  • Shall close
  • no later than
  • Minimum size limit
  • (total length 1)
  • shall be
  • Recreational Between Point Arena and Pigeon Point 1st Saturday in April 2nd Sunday in November 20 inches. Between Pigeon Point and the U.S./Mexico border 1st Saturday in April 1st Sunday in October Commercial Between Point Arena and the U.S./Mexico border † May 1 September 30 † 26 inches. † Exception: Between Point Reyes and Point San Pedro, there may be an October commercial fishery conducted Monday through Friday, but shall end no later than October 15. 1 Total length of salmon means the shortest distance between the tip of the snout or jaw (whichever extends furthest while the mouth is closed) and the tip of the longest lobe of the tail, without resort to any force or mutilation of the salmon other than fanning or swinging the tail (50 CFR 660.402).

    Since implementation of the RPA, two issues with the control rule have arisen from Council discussion. First, the control rule does not allow for any fishery impacts when the most recent 3-year geometric mean of spawning escapement for SRWC falls below 500. This would result in closure of all salmon fisheries south of Point Arena, CA, which the Council felt was unnecessarily restrictive. Second, because the control rule is based on spawning escapement, it is not responsive to more forward looking indicators of stock productivity, e.g., poor juvenile salmon survival during the prolonged California drought. The Council did not raise any issues with respect to the fishing season and size limit restrictions that formed the first part of the 2012 RPA; and continues to consider this part of the applicable ESA “consultation standard.” Thus NMFS includes maintaining those restrictions as part of this action.

    In 2015, the Council created an ad hoc SRWC Workgroup to develop a new harvest control rule that would address the two issues mentioned above; the SRWC workgroup comprised staff from NMFS, California Department of Fish and Wildlife, and the U.S. Fish and Wildlife Service. The SRWC Workgroup's meetings to develop and analyze alternative harvest control rules were open to the public. Additionally, the SRWC Workgroup presented their reports to the Council at regularly scheduled Council meetings in 2016 and 2017. These workgroup and Council meetings were noticed in the Federal Register, public input was invited, and the meetings were open to the public through either in-person attendance, webinar, conference call, or live streaming on the internet. At the Council's September 2017 meeting, the Council selected four of the alternatives developed by the Workgroup for final analysis. The Council then selected a final preferred alternative at their November 2017 meeting. Documents considered by the Council are available on the Council website: (https://www.pcouncil.org/resources/archives/briefing-books/november-2017-briefing-book/#salNov2017). The Council transmitted their recommendation to NMFS on December 6, 2017.

    Council's Recommended Harvest Control Rule

    The new harvest control rule recommended by the Council uses juvenile survival (i.e., fry to the end of age-2 in the ocean) to model a forecast of age-3 escapement absent fishing (E0 3). The model used is a modification of Winship et al. (2014) and is detailed in O'Farrell et al. (2016). The recommended control rule will provide a forward-looking forecast rather than the current hind-cast methodology.

    The new harvest control rule sets the maximum allowable age-three impact rate based on the forecast age-three escapement in the absence of fisheries (E0 3). At E0 3 above 3,000, the allowable impact rate is fixed at 20 percent. At E0 3 between 3,000 and 500, the allowable impact rate declines linearly from 20 percent to 10 percent. At E0 3 between 500 and 0, the allowable impact rate declines linearly from 10 percent to 0 percent, thus providing fishing opportunity at all levels of SRWC abundance. See Figure 1.

    EP22FE18.008

    The SRWC Workgroup compared the alternative harvest control rules with respect to extinction risk to SRWC and how the alternatives would affect fishing opportunity. With respect to extinction risk, the workgroup found little contrast among the alternatives in their simulation analyses. With respect to fishing opportunity, the workgroup did find differences among the alternatives, and concluded that the Council's recommended alternative was intermediate in constraining the fishery compared to the other alternatives under consideration. Fisheries south of Point Arena, where SRWC are contacted, impact several salmon stocks. In the six years that the current harvest control rule has been in place, these fisheries have been constrained by impacts to SRWC as well as California Coastal Chinook (ESA-listed as threatened), Sacramento River fall Chinook (not ESA-listed), and Klamath River fall Chinook (not ESA-listed). However, in recent years, the only closures of the fishery south of Point Arena were due to Sacramento River fall Chinook (2008, 2009). Under the new control rule for SRWC, fishing impacts would be allowed at all non-zero forecast abundance of SRWC; therefore, the new control rule would not, in itself, result in a fishery closure.

    The harvest control rule recommended by the Council would address the issues raised by the current harvest control rule. The new harvest control rule would allow for fishing opportunity in the affected area at all levels of abundance of SRWC, and uses juvenile productivity and survival to develop a responsive, forward-looking abundance forecast. The new harvest control rule is expected to accomplish these goals without appreciably increasing the extinction risk to SRWC over the current harvest control rule. The new harvest control rule was developed in a public process with opportunity for the States, Tribes, and the public to provide input. The Council recommended and NMFS proposes to implement this new harvest control rule, together with the size and fishing season limits described above, beginning with the 2018 ocean salmon fishing season that will begin May 1, 2018.

    References Cited O'Farrell, M., N. Hendrix, and M. Mohr. 2016. An evaluation of preseason abundance forecasts for Sacramento River winter Chinook salmon. Pacific Fishery Management Council Briefing Book for November 2016, 35p. SRWC Workgroup. 2017. Further evaluation of Sacramento River winter Chinook control rules, dated October 18, 2017. Pacific Fishery Management Council Briefing Book for November 2017, 9 p. Winship, A.J., M.R. O'Farrell, and M.S. Mohr. 2014. Fishery and hatchery effects on an endangered salmon population with low productivity. Transactions of the American Fisheries Society 143, 957-971. Classification

    Pursuant to section 304(b)(1)(A) of the MSA, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the Pacific Salmon Fishery Management Plan, the MSA, and other applicable law, subject to further consideration after public comment.

    The West Coast Regional Administrator has determined that the actions of this proposed rule will be analyzed in an environmental assessment under the National Environmental Policy Act.

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

    As required by section 603 of the Regulatory Flexibility Act (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was prepared. The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A summary of the analysis follows. A copy of this analysis is available from NMFS.

    Provision is made under SBA's regulations for an agency to develop its own industry-specific size standards after consultation with Advocacy and an opportunity for public comment (see 13 CFR 121.903(c)). NMFS has established a small business size standard for businesses, including their affiliates, whose primary industry is commercial fishing (80 FR 81194, December 29, 2015). This standard is only for use by NMFS and only for the purpose of conducting an analysis of economic effects in fulfillment of the agency's obligations under the RFA.

    NMFS' small business size standard for businesses, including their affiliates, whose primary industry is commercial fishing is $11 million in annual gross receipts. This standard applies to all businesses classified under North American Industry Classification System (NAICS) code 11411 for commercial fishing, including all businesses classified as commercial finfish fishing (NAICS 114111), commercial shellfish fishing (NAICS 114112), and other commercial marine fishing (NAICS 114119) businesses. (50 CFR 200.2; 13 CFR 121.201).

    The proposed rule would specify the annual amount of fishery impact that will be allowed on ESA-listed SRWC and, thereby, affect the fishing opportunity available in the area south of Point Arena, CA. This would affect commercial and recreational fisheries. Using the high from the last 3 years, 153 commercial trollers are likely to be impacted by this rule, all of whom would be considered small businesses. The 16-25 commercial vessels who have greater than 75 percent of their annual revenue from Chinook salmon south of Point Arena would be most impacted by this rule. Charter license holders operating south of Point Arena will be directly regulated under the updated harvest control rule. The number of license holders has fluctuated with harvest levels, varying from 70 in 2010 to 93 in 2014. Of these, 20-50 vessels could be considered “active”, landing more than 100 salmon in the year. The proposed rule would impact about 90 charter boat entities, about 50 of whom were “active” in peak years (2013-2014). In summary, this rule will directly impact about 250 entities made up of commercial and charter vessels, with about 75 of these highly active in the fishery and likely to experience the largest impacts, in proportion to their total participation.

    The proposed action includes a de minimis provision and would allow impacts at all non-zero forecast abundance. Because of this feature, this proposed action is unlikely to result in fishery closure in the analysis area. The alternative would also provide increased certainty to operators over the status quo, in which the Council has elected lower impact rates than specified by the current control rule. Therefore, this action would be expected to have a positive impact of low magnitude on economic benefits to fishery-dependent communities that would vary year-to-year, but not likely to be significant.

    Commercial trollers and charter operators face a variety of constraining stocks. In no year has SWRC been the only constraining stock. Entities are constrained by both ESA-listed and non-listed species; the years that had the most constrained fisheries in the last decade were 2008 and 2009, when fisheries in the analysis area were closed to limit impacts to Sacramento River fall Chinook, not an ESA-listed species, rather than the ESA-listed species SRWC. Thus, while entities will likely continue to face constraints relative to fishing opportunities, because the proposed action is expected to provide low-positive benefits to both commercial and charter operators, NMFS does not expect the rule to impose significant negative economic effects.

    This proposed rule would not establish any new reporting or recordkeeping requirements. This proposed rule does not include a collection of information. No Federal rules have been identified that duplicate, overlap, or conflict with this action.

    This action is the subject of a consultation under section 7 of the ESA. NMFS is currently preparing a biological opinion on the effects of this action on SRWC, which will be completed prior to publishing a final rule. This action is not expected to have adverse effects on any other species listed under the Endangered Species Act (ESA) or designated critical habitat. This action implements a new harvest control rule to limit impacts on SRWC from the ocean salmon fishery and would be used in the setting of annual management measures for West Coast salmon fisheries. NMFS has current ESA biological opinions that cover fishing under annual regulations adopted under the FMP on all listed salmon species. NMFS reiterates what is required for consistency with these opinions for all ESA-listed salmon and steelhead species in their annual guidance letter to the Council. Some of NMFS past biological opinions have found no jeopardy, and others have found jeopardy, but provided reasonable and prudent alternatives to avoid jeopardy. The annual management measures are designed to be consistent with the biological opinions that found no jeopardy, and with the reasonable and prudent alternatives in the jeopardy biological opinions.

    This proposed rule was developed after meaningful collaboration with West Coast tribes, through the Council process. Under the MSA at 16 U.S.C. 1852(b)(5), one of the voting members of the Council must be a representative of an Indian Tribe with Federally recognized fishing rights from the area of the Council's jurisdiction. No tribes with Federally recognized fishing rights are expected to be affected by this rule.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: February 15, 2018. Samuel D. Rauch, III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.
    [FR Doc. 2018-03596 Filed 2-21-18; 8:45 am] BILLING CODE 3510-22-P
    83 36 Thursday, February 22, 2018 Notices DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service [Docket No. APHIS-2017-0086] Availability of a Final Environmental Assessment and Finding of No Significant Impact for Release of Aceria drabae for Biological Control of Hoary Cress AGENCY:

    Animal and Plant Health Inspection Service, USDA.

    ACTION:

    Notice.

    SUMMARY:

    We are advising the public that an environmental assessment and finding of no significant impact have been prepared by the Animal and Plant Health Inspection Service relative to the release of the gall mite, Aceria drabae, for classical biological control of hoary cress in the contiguous United States. Based on its finding of no significant impact, the Animal and Plant Health Inspection Service has determined that an environmental impact statement need not be prepared.

    FOR FURTHER INFORMATION CONTACT:

    Dr. Colin D. Stewart, Assistant Director, Pests, Pathogens, and Biocontrol Permits, Permitting and Compliance Coordination, PPQ, APHIS, 4700 River Road, Unit 133, Riverdale, MD 20737-1231; (301) 851-2327, email: [email protected]

    SUPPLEMENTARY INFORMATION:

    The Animal and Plant Health Inspection Service (APHIS) is proposing to issue permits for the release of a mite, Aceria drabae, into the continental United States for use as a biological control agent to reduce the severity of hoary cress infestations.

    On December 5, 2017, we published in the Federal Register (82 FR 57424-57425, Docket No. APHIS-2017-0086) a notice 1 in which we announced the availability, for public review and comment, of an environmental assessment (EA) that examined the potential environmental impacts associated with the proposed release of this biological control agent into the continental United States.

    1 To view the notice, EA, and FONSI, and the comment we received, go to http://www.regulations.gov/#!docketDetail;D=APHIS-2017-0086.

    We solicited comments on the EA for 30 days ending January 4, 2018. We received one comment by the close of the comment period. The commenter was generally opposed to the release of insects for biological control but did not raise any specific or substantive issues.

    In this document, we are advising the public of our finding of no significant impact (FONSI) regarding the release of Aceria drabae into the continental United States for use as a biological control agent to reduce the severity of hoary cress infestations. The finding, which is based on the EA, reflects our determination that release of this biological control agent will not have a significant impact on the quality of the human environment.

    The EA and FONSI may be viewed on the Regulations.gov website (see footnote 1). Copies of the EA and FONSI are also available for public inspection in our reading room, which is located in room 1141 of the USDA South Building, 14th Street and Independence Avenue SW, Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through Friday, except holidays. To be sure someone is there to help you, please call (202) 799-7039 before coming. In addition, copies may be obtained by calling or writing to the individual listed under FOR FURTHER INFORMATION CONTACT.

    The EA and FONSI have been prepared in accordance with: (1) The National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321 et seq.), (2) regulations of the Council on Environmental Quality for implementing the procedural provisions of NEPA (40 CFR parts 1500-1508), (3) USDA regulations implementing NEPA (7 CFR part 1b), and (4) APHIS' NEPA Implementing Procedures (7 CFR part 372).

    Done in Washington, DC, this 15th day of February 2018. Kevin Shea, Administrator, Animal and Plant Health Inspection Service.
    [FR Doc. 2018-03552 Filed 2-21-18; 8:45 am] BILLING CODE 3410-34-P
    COMMISSION ON CIVIL RIGHTS Agenda and Notice of Public Meeting of the Rhode Island Advisory Committee AGENCY:

    Commission on Civil Rights.

    ACTION:

    Announcement of monthly planning meetings.

    SUMMARY:

    Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission), and the Federal Advisory Committee Act (FACA), that a planning meeting of the Rhode Island State Advisory Committee to the Commission will convene by conference call, on Tuesday, March 6, 2018 at 11:00 a.m. (EST). The purpose of the meeting is project planning so that members can begin discussing potential topics for its civil rights project.

    DATES:

    Tuesday, March 6, 2018, at 11:00 a.m. (EST).

    Public Call-In Information: Conference call number: 1-800-310-7032 and conference call ID: 2757439.

    FOR FURTHER INFORMATION CONTACT:

    Barbara de La Viez, at [email protected] or by phone at 202-376-7533

    SUPPLEMENTARY INFORMATION:

    Interested members of the public may listen to the discussion by calling the following toll-free conference call number: 1-800-310-7032 and conference call ID: 2757439. Please be advised that before placing them into the conference call, the conference call operator may ask callers to provide their names, their organizational affiliations (if any), and email addresses (so that callers may be notified of future meetings). Callers can expect to incur charges for calls they initiate over wireless lines, and the Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number herein.

    Persons with hearing impairments may also follow the discussion by first calling the Federal Relay Service at 1-800-877-8339 and providing the operator with the toll-free conference call number: 1-800-310-7032 and conference call ID: 2757439.

    Members of the public are invited to submit written comments; the comments must be received in the regional office approximately 30 days after each scheduled meeting. Written comments may be mailed to the Eastern Regional Office, U.S. Commission on Civil Rights, 1331 Pennsylvania Avenue, Suite 1150, Washington, DC 20425, or emailed to Evelyn Bohor at [email protected] Persons who desire additional information may contact the Eastern Regional Office at (202) 376-7533.

    Records and documents discussed during the meeting will be available for public viewing as they become available at https://www.facadatabase.gov/committee/meetings.aspx?cid=272; click the “Meeting Details” and “Documents” links. Records generated from this meeting may also be inspected and reproduced at the Eastern Regional Office, as they become available, both before and after the meetings. Persons interested in the work of this advisory committee are advised to go to the Commission's website, www.usccr.gov, or to contact the Eastern Regional Office at the above phone number, email or street address.

    Agenda: Tuesday, March 6, 2018 at 11:00 a.m. I. Welcome and Introductions Rollcall II. Planning Meeting Project Topic Planning and Discussions III. Other Business IV. Open Comment V. Adjournment Dated: February 15, 2018. David Mussatt, Supervisory Chief, Regional Programs Unit.
    [FR Doc. 2018-03550 Filed 2-21-18; 8:45 am] BILLING CODE P
    DEPARTMENT OF COMMERCE International Trade Administration [A-351-852, A-560-832, A-580-896, A-535-905, and A-583-862] Polyethylene Terephthalate Resin From Brazil, Indonesia, the Republic of Korea, Pakistan, and Taiwan: Postponement of Preliminary Determinations of Antidumping Duty Investigations AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    DATES:

    Applicable February 22, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Kathryn Wallace (Brazil) at (202) 482-6251, Caitlin Monks (Indonesia) at (202) 482-2670, Sean Carey (Republic of Korea) at (202) 482-3964, Lauren Caserta (Pakistan) at (202) 482-4737, Alex Cipolla at (202) 482-4956 (Taiwan), AD/CVD Operations, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230.

    SUPPLEMENTARY INFORMATION: Background

    On October 23, 2017, the Department of Commerce (Commerce) initiated antidumping duty (AD) investigations on polyethylene terephthalate resin from Brazil, Indonesia, the Republic of Korea, Pakistan, and Taiwan.1 Commerce exercised its discretion to toll all deadlines affected by the closure of the Federal Government from January 20 through 22, 2018. If the new deadline falls on a non-business day, in accordance with Commerce's practice, the deadline will become the next business day. Accordingly, the current deadline for the preliminary determinations of these investigations is March 8, 2018.

    1See Polyethylene Terephthalate Resin from Brazil, Indonesia, the Republic of Korea, Pakistan, and Taiwan: Initiation of Less-Than-Fair-Value Investigations, 82 FR 48977 (October 23, 2017).

    Postponement of Preliminary Determinations

    Section 733(b)(1)(A) of the Tariff Act of 1930, as amended (the Act), requires Commerce to issue the preliminary determination in an AD investigation within 140 days after the date on which Commerce initiated the investigation. However, section 733(c)(1)(A) of the Act and 19 CFR 351.205(e) allow Commerce to postpone the preliminary determination at the request of the petitioner.

    On January 29, 2018, the petitioners 2 submitted a timely request pursuant to 19 CFR 351.205(e) to postpone the preliminary determinations.3 They noted that Commerce is still gathering data and questionnaire responses from the foreign producers in these investigations and additional time is necessary for Commerce and interested parties to fully and properly analyze all questionnaire response.4 For these reasons, and because there are no compelling reasons to deny the request, Commerce, in accordance with section 733(c)(1)(A) of the Act and 19 CFR 351.205(e), is postponing the deadline for the preliminary determinations to no later than 190 days after the day on which the investigations were initiated. Accordingly, Commerce will issue the preliminary determinations no later than April 27, 2018, a date that has been adjusted for the period of the closure of the Federal Government. In accordance with section 735(a)(1) of the Act and 19 CFR 351.210(b)(1), the deadline for the final determinations of these investigations will continue to be 75 days after the date of the preliminary determinations, unless postponed.

    2 The petitioners for Brazil, Pakistan, Korea, and Taiwan are DAK Americas LLC, Indorama Ventures USA Inc., M&G Polymers USA LLC, and Nan Ya Plastics Corporation America. The petitioners for Indonesia are DAK Americas LLC, M&G Polymers USA LLC, and Nan Ya Plastics Corporation America.

    3See letter from the petitioners, “Polyethylene Terephthalate Resin from Brazil, Indonesia, the Republic of Korea, Pakistan and Taiwan—Petitioners' Request to Postpone the Preliminary Determinations,” dated January 29, 2018.

    4Id. At 2.

    This notice is issued and published pursuant to section 733(c)(2) of the Act and 19 CFR 351.205(f)(1).

    Dated: February 16, 2018. Christian Marsh, Deputy Assistant Secretary for Enforcement and Compliance.
    [FR Doc. 2018-03670 Filed 2-21-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XF850 Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental To Site Characterization Surveys Off of New York AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Notice; proposed incidental harassment authorization; request for comments.

    SUMMARY:

    NMFS has received a request from Statoil Wind U.S. LLC (Statoil) for authorization to take marine mammals incidental to marine site characterization surveys off the coast of New York as part of the Empire Wind Project in the area of the Commercial Lease of Submerged Lands for Renewable Energy Development on the Outer Continental Shelf (OCS-A 0512) (Lease Area) and coastal waters where one or more cable route corridors will be established. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its proposal to issue an incidental harassment authorization (IHA) to incidentally take marine mammals during the specified activities. NMFS will consider public comments prior to making any final decision on the issuance of the requested MMPA authorizations and agency responses will be summarized in the final notice of our decision.

    DATES:

    Comments and information must be received no later than March 26, 2018.

    ADDRESSES:

    Comments should be addressed to Jolie Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service. Physical comments should be sent to 1315 East-West Highway, Silver Spring, MD 20910 and electronic comments should be sent to [email protected]

    Instructions: NMFS is not responsible for comments sent by any other method, to any other address or individual, or received after the end of the comment period. Comments received electronically, including all attachments, must not exceed a 25-megabyte file size. Attachments to electronic comments will be accepted in Microsoft Word or Excel or Adobe PDF file formats only. All comments received are a part of the public record and will generally be posted online at www.nmfs.noaa.gov/pr/permits/incidental/energy_other.htm without change. All personal identifying information (e.g., name, address) voluntarily submitted by the commenter may be publicly accessible. Do not submit confidential business information or otherwise sensitive or protected information.

    FOR FURTHER INFORMATION CONTACT:

    Jordan Carduner, Office of Protected Resources, NMFS, (301) 427-8401. Electronic copies of the applications and supporting documents, as well as a list of the references cited in this document, may be obtained by visiting the internet at: www.nmfs.noaa.gov/pr/permits/incidental/energy_other.htm. In case of problems accessing these documents, please call the contact listed above.

    SUPPLEMENTARY INFORMATION: Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce (as delegated to NMFS) to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are issued or, if the taking is limited to harassment, a notice of a proposed authorization is provided to the public for review.

    An authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth.

    NMFS has defined “negligible impact” in 50 CFR 216.103 as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.

    The MMPA states that the term “take” means to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal.

    Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).

    National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, NMFS must review our proposed action (i.e., the issuance of an incidental harassment authorization) with respect to potential impacts on the human environment.

    Accordingly, NMFS is preparing an Environmental Assessment (EA) to consider the environmental impacts associated with the issuance of the proposed IHA. We will review all comments submitted in response to this notice prior to concluding our NEPA process or making a final decision on the IHA request.

    Summary of Request

    On November 9, 2017, NMFS received a request from Statoil for an IHA to take marine mammals incidental to marine site characterization surveys off the coast of New York as part of the Empire Wind Project in the area of the Commercial Lease of Submerged Lands for Renewable Energy Development on the Outer Continental Shelf (OCS-A 0512) and coastal waters where one or more cable route corridors will be established. A revised application was received on January 8, 2018. NMFS deemed that request to be adequate and complete. Statoil's request is for take of 11 marine mammal species by Level B harassment. Neither Statoil nor NMFS expects serious injury or mortality to result from this activity and the activity is expected to last no more than one year, therefore, an IHA is appropriate.

    Description of the Proposed Activity Overview

    Statoil proposes to conduct marine site characterization surveys including high-resolution geophysical (HRG) and geotechnical surveys in the marine environment of the approximately 79,350-acre Lease Area located approximately 11.5 nautical miles (nm) from Jones Beach, New York (see Figure 1 in the IHA application). Additionally, one or more cable route corridors will be established between the Lease Area and New York, identified as the Cable Route Area (see Figure 1 in the IHA application). See the IHA application for further information. Cable route corridors are anticipated to be 152 meters (m, 500 feet (ft)) wide and may have an overall length of as much as 135 nm. For the purpose of this IHA, the survey area is designated as the Lease Area and cable route corridors that will be established in advance of conducting the HRG survey activity. Water depths across the Lease Area range from approximately 22 to 41 m (72 to 135 ft) while the cable route corridors will extend to shallow water areas near landfall locations. Surveys would occur from approximately March 2018 through July 2018.

    The purpose of the marine site characterization surveys are to support the siting, design, and deployment of up to three meteorological data buoy deployment areas and to obtain a baseline assessment of seabed/sub-surface soil conditions in the Lease Area and cable route corridors to support the siting of the proposed wind farm. Underwater sound resulting from Statoil's proposed site characterization surveys have the potential to result in incidental take of marine mammals in the form of behavioral harassment.

    Dates and Duration

    Surveys will last for approximately 20 weeks and are anticipated to commence upon issuance of the requested IHA, if appropriate. This schedule is based on 24-hour operations and includes potential down time due to inclement weather. Based on 24-hour operations, the estimated duration of the HRG survey activities would be approximately 142 days (including estimated weather down time).

    Specific Geographic Region

    Statoil's survey activities will occur in the approximately 79,350-acre Lease Area located approximately 11.5 nm from Jones Beach, New York (see Figure 1 in the IHA application). Additionally, one or more cable route corridors would be surveyed between the Lease Area and New York. Cable route corridors are anticipated to be 152 meters (m, 500 ft) wide and may have an overall length of as much as 135 nm.

    Detailed Description of the Specified Activities

    Statoil's proposed marine site characterization surveys include HRG and geotechnical survey activities. These activities are described below.

    HRG Survey Activities

    The HRG survey activities proposed by Statoil would include the following:

    • Depth sounding (multibeam echosounder) to determine site bathymetry and elevations;

    • Magnetic intensity measurements for detecting local variations in regional magnetic field from geological strata and potential ferrous objects on and below the bottom;

    • Seafloor imaging (sidescan sonar survey) for seabed sediment classification purposes, to identify natural and man-made acoustic targets resting on the bottom as well as any anomalous features;

    • Shallow penetration sub-bottom profiler (pinger/chirp) to map the near surface stratigraphy (top 0 to 5 m (0 to 16 ft) of soils below seabed);

    • Medium penetration sub-bottom profiler (sparker) to map deeper subsurface stratigraphy as needed (soils down to 75 to 100 m (246 to 328 ft) below seabed); and

    • Ultra short baseline positioning system (USBL) for position referencing for the dynamic positioning (DP) vessel.

    Table 1 identifies the representative survey equipment that may be used in support of planned HRG survey activities. The make and model of the listed HRG equipment will vary depending on availability but will be finalized as part of the survey preparations and contract negotiations with the survey contractor. The final selection of the survey equipment will be confirmed prior to the start of the HRG survey program. Any survey equipment selected would have characteristics similar to the systems described below, if different.

    HRG system Representative HRG survey
  • equipment
  • Operating
  • frequencies
  • RMS
  • source
  • level 1
  • Peak
  • source
  • level 1
  • Pulse
  • duration
  • (millisec)
  • Subsea Positioning/USBL Sonardyne Ranger 2 USBL2 35-50kHz 188 dBrms 200 dBPeak 1. Sidescan Sonar Klein 3900 Sidescan Sonar 445/900 kHz 220 dBrms 226 dBPeak 0.0016 to 0.1. Shallow penetration sub-bottom profiler EdgeTech 512i 0.4 to 12 kHz 179 dBrms 186 dBPeak 1.8 to 65.8. Medium penetration sub-bottom profiler SIG ELC 820 Sparker 0.9 to 1.4 kHz 206 dBrms 215 dBPeak 0.8. Multibeam Echo Sounder Reson T20-P 200/300/400 kHz 221 dBrms 227 dBPeak 2 to 6. 1 All source levels are measured at 1 m and are from Crocker and Fratantonio (2016) except those for the Sonardyne Ranger 2 USBL which are based on manufacturer specifications (as source levels for the Sonardyne Ranger 2 USBL are not listed in Crocker and Fratantonio (2016)).

    The HRG survey activities would be supported by a vessel approximately 30 to 55 m (98 to 180 ft) in length and capable of maintaining course and a survey speed of approximately 4 nm per hour (7.4 kilometers per hour (km/hr)) while transiting survey lines. Surveys would be conducted along tracklines spaced 30 m (98 ft) apart, with tie-lines spaced every 500 m (1640 ft). The multichannel array sub-bottom profiler would be operated on 150-m (492-ft) spaced primary lines, while the single channel array sub-bottom profiler would be operated on 30-m (98-ft) line spacing to meet Bureau of Ocean Energy Management (BOEM) requirements as set out in BOEM's Guidelines for Providing Geophysical, Geotechnical, and Geohazard Information Pursuant to Archeological and Historic Property Information to 30 CFR part 585.

    To minimize cost, the duration of survey activities, and the period of potential impact on marine species while surveying, Statoil has proposed that HRG survey operations would be conducted continuously 24 hours per day. Based on 24-hour operations, the estimated duration of the HRG survey activities would be approximately 142 days (including estimated weather down time) including 123 survey days in the Lease Area and 19 survey days in the cable route corridors.

    The deployment of HRG survey equipment, including the equipment planned for use during Statoil's planned activity, produces sound in the marine environment that has the potential to result in harassment of marine mammals. Based on the frequency ranges of the potential equipment planned to be used in support of HRG survey activities (Table 1) the ultra-short baseline (USBL) positioning system and the sub-bottom profilers (shallow and medium penetration) operate within functional marine mammal hearing ranges and have the potential to result in harassment of marine mammals.

    Geotechnical Survey Activities

    Statoil's proposed geotechnical survey activities would include the following:

    • Vibracores would be taken to determine the geological and geotechnical characteristics of the sediments; and

    • Cone Penetration Testing (CPT) would be performed to determine stratigraphy and in-situ conditions of the sediments.

    Statoil's proposed geotechnical survey activities would begin no earlier than March 2018 and would last up to 30 days. It is anticipated that geotechnical surveys would entail sampling of vibracores and CPT. A sample would be taken approximately every one kilometer (km) along the selected cable route, alternating between CPTs and vibracores, such that intervals for each vibracore and CPT location would be approximately 2 km. Precise cable routes were not known at the time the IHA application was submitted. As many as three cable routes may be identified for geotechnical sampling, with cable routes likely to range in length from 20 km to 65 km. Assuming a maximum, minimum, and median route length for the three potential cable corridors, the total length of survey corridor would be approximately 128 km. Therefore it is anticipated that approximately 128 locations would be sampled (approximately one sample taken per km), located equidistant between the lease area and the New York shoreline (as depicted in Figure 1 of the IHA Application as the Cable Route Area). The duration of each sampling event would take approximately 2-4 hours and geotechnical survey activities would occur 24 hours per day during the survey. Statoil anticipates a production rate of approximately 5 samples per day.

    In considering whether marine mammal harassment is an expected outcome of exposure to a particular activity or sound source, NMFS considers both the nature of the exposure itself (e.g., the magnitude, frequency, or duration of exposure) and the conditions specific to the geographic area where the activity is expected to occur (i.e., whether the activity is planned in a foraging area, breeding area, nursery or pupping area, or other biologically important area for the species). We then consider the expected response of the exposed animal and whether the nature and duration or intensity of that response is expected to cause disruption of behavioral patterns (e.g., migration, breathing, nursing, breeding, feeding, or sheltering) or injury.

    Geotechnical survey activities would be conducted from a drill ship equipped with DP thrusters. DP thrusters would be used to position the sampling vessel on station and maintain position at each sampling location during the sampling activity. A ship has not yet been assigned to conduct the survey, but Statoil anticipates that survey activities would likely be conducted from a typical offshore sampling vessel, ranging from 250ft to 350ft (76 m to 107 m). Sound produced through use of DP thrusters is similar to that produced by transiting vessels and DP thrusters are typically operated in a similarly predictable manner. NMFS does not believe acoustic impacts from DP thrusters are likely to result in take of marine mammals in the absence of activity- or location-specific circumstances that may otherwise represent specific concerns for marine mammals (i.e., activities proposed in area known to be of particular importance for a particular species), or associated activities that may increase the potential to result in take when in concert with DP thrusters, largely due to the low likelihood of marine mammal behavioral response to DP thrusters that would rise to the level of a take (versus less consequential behavioral reactions). In this case, we are not aware of any such circumstances. Monitoring of past projects that entailed use of DP thrusters has shown a lack of observed marine mammal responses as a result of exposure to sound from DP thrusters. Therefore, NMFS believes the likelihood of DP thrusters used during the proposed geotechnical surveys resulting in harassment of marine mammals to be so low as to be discountable. As DP thrusters are not expected to result in take of marine mammals, these activities are not analyzed further in this document.

    Vibracoring entails driving a hydraulic or electric pulsating head through a hollow tube into the seafloor to recover a stratified representation of the sediment. The vibracoring process is short in duration and is performed from a dynamic positioning vessel. The vessel would use DP thrusters to maintain the vessel's position while the vibracore sample is taken, as described above. The vibracoring process would always be performed in concert with DP thrusters, and DP thrusters would begin operating prior to the activation of the vibracore to maintain the vessel's position; thus, we expect that any marine mammals in the project area would detect the presence and noise associated with the vessel and the DP thrusters prior to commencement of vibracoring. Any reaction by marine mammals would be expected to be similar to reactions to the concurrent vessel noise, which are expected to be minor and short term. In this case, vibracoring is not planned in any areas of particular biological significance for any marine mammals. Thus while a marine mammal may perceive noise from vibracoring and may respond briefly, we believe the potential for this response to rise to the level of take to be so low as to be discountable, based on the short duration of the activity and the fact that marine mammals would be expected to react to the vessel and DP thrusters before vibracoring commences, potentially through brief avoidance. In addition, the fact that the geographic area is not biologically important for any marine mammal species means that such reactions are not likely to carry any meaningful significance for the animals.

    Field studies conducted off the coast of Virginia to determine the underwater noise produced by CPTs found that these activities did not result in underwater noise levels that exceeded current thresholds for Level B harassment of marine mammals (Kalapinski, 2015). Given the small size and energy footprint of CPTs, NMFS believes the likelihood that noise from these activities would exceed the Level B harassment threshold at any appreciable distance is so low as to be discountable. Therefore, geotechnical survey activities, including CPT and vibracores, are not expected to result in harassment of marine mammals and are not analyzed further in this document.

    Proposed mitigation, monitoring, and reporting measures are described in detail later in this document (please see “Proposed Mitigation” and “Proposed Monitoring and Reporting”).

    Description of Marine Mammals in the Area of Specified Activity

    Sections 3 and 4 of Statoil's IHA application summarize available information regarding status and trends, distribution and habitat preferences, and behavior and life history, of the potentially affected species. Additional information regarding population trends and threats may be found in NMFS's Stock Assessment Reports (SAR; www.nmfs.noaa.gov/pr/sars/) and more general information about these species (e.g., physical and behavioral descriptions) may be found on NMFS's website (www.nmfs.noaa.gov/pr/species/mammals/).

    Table 2 lists all species with expected potential for occurrence in the survey area and summarizes information related to the population or stock, including regulatory status under the MMPA and ESA and potential biological removal (PBR), where known. For taxonomy, we follow Committee on Taxonomy (2017). PBR is defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population (as described in NMFS's SARs). While no mortality is anticipated or authorized here, PBR is included here as gross indicators of the status of the species and other threats.

    Marine mammal abundance estimates presented in this document represent the total number of individuals that make up a given stock or the total number estimated within a particular study or survey area. NMFS's stock abundance estimates for most species represent the total estimate of individuals within the geographic area, if known, that comprises that stock. For some species, this geographic area may extend beyond U.S. waters. All managed stocks in this region are assessed in NMFS's U.S. 2017 draft SARs (e.g., Hayes et al., 2018). All values presented in Table 2 are the most recent available at the time of publication and are available in the 2017 draft SARs (Hayes et al., 2018).

    Table 2—Marine Mammals Known To Occur in the Survey Area Common name Stock NMFS
  • MMPA
  • and ESA
  • status;
  • strategic
  • (Y/N) 1
  • Stock Abundance
  • (CV,Nmin, most recent
  • abundance survey) 2
  • PBR 3 Occurrence and seasonality in the NW Atlantic OCS
    Toothed whales (Odontoceti) Atlantic white-sided dolphin (Lagenorhynchus acutus) W. North Atlantic -; N 48,819 (0.61; 30,403; n/a) 304 rare. Atlantic spotted dolphin (Stenella frontalis) W. North Atlantic -; N 44,715 (0.43; 31,610; n/a) 316 rare. Bottlenose dolphin (Tursiops truncatus) W. North Atlantic, Offshore -; N 77,532 (0.40; 56,053; 2011) 561 Common year round. Clymene dolphin (Stenella clymene) W. North Atlantic -; N Unknown (unk; unk; n/a) Undet rare. Pantropical Spotted dolphin (Stenella attenuata) W. North Atlantic -; N 3,333 (0.91; 1,733; n/a) 17 rare. Risso's dolphin (Grampus griseus) W. North Atlantic -; N 18,250 (0.46; 12,619; n/a) 126 rare. Short-beaked common dolphin (Delphinus delphis) W. North Atlantic -; N 70,184 (0.28; 55,690; 2011) 557 Common year round. Striped dolphin (Stenella coeruleoalba) W. North Atlantic -; N 54,807 (0.3; 42,804; n/a) 428 rare. Spinner Dolphin (Stenella longirostris) W. North Atlantic -; N Unknown (unk; unk; n/a) Undet rare. White-beaked dolphin (Lagenorhynchus albirostris) W. North Atlantic -; N 2,003 (0.94; 1,023; n/a) 10 rare. Harbor porpoise (Phocoena phocoena) Gulf of Maine/Bay of Fundy -; N 79,833 (0.32; 61,415; 2011) 706 Common year round. Killer whale (Orcinus orca) W. North Atlantic -; N Unknown (unk; unk; n/a) Undet rare. False killer whale (Pseudorca crassidens) W. North Atlantic -; Y 442 (1.06; 212; n/a) 2.1 rare. Long-finned pilot whale (Globicephala melas) W. North Atlantic -; Y 5,636 (0.63; 3,464; n/a) 35 rare. Short-finned pilot whale (Globicephala macrorhynchus) W. North Atlantic -; Y 21,515 (0.37; 15,913; n/a) 159 rare. Sperm whale (Physeter macrocephalus) North Atlantic E; Y 2,288 (0.28; 1,815; n/a) 3.6 Year round in continental shelf and slope waters, occur seasonally to forage. Pygmy sperm whale 4 (Kogia breviceps) W. North Atlantic -; N 3,785 (0.47; 2,598; n/a) 26 rare. Dwarf sperm whale 4 (Kogia sima) W. North Atlantic -; N 3,785 (0.47; 2,598; n/a) 26 rare. Cuvier's beaked whale (Ziphius cavirostris) W. North Atlantic -; N 6,532 (0.32; 5,021; n/a) 50 rare. Blainville's beaked whale 5 (Mesoplodon densirostris) W. North Atlantic -; N 7,092 (0.54; 4,632; n/a) 46 rare. Gervais' beaked whale 5 (Mesoplodon europaeus) W. North Atlantic -; N 7,092 (0.54; 4,632; n/a) 46 rare. True's beaked whale 5 (Mesoplodon mirus) W. North Atlantic -; N 7,092 (0.54; 4,632; n/a) 46 rare. Sowerby's Beaked Whale 5 (Mesoplodon bidens) W. North Atlantic -; N 7,092 (0.54; 4,632; n/a) 46 rare. Rough-toothed dolphin (Steno bredanensis) W. North Atlantic -; N 271 (1.0; 134; 2013) 1.3 rare. Melon-headed whale (Peponocephala electra) W. North Atlantic -; N Unknown (unk; unk; n/a) Undet rare. Northern bottlenose whale (Hyperoodon ampullatus) W. North Atlantic -; N Unknown (unk; unk; n/a) Undet rare. Pygmy killer whale (Feresa attenuata) W. North Atlantic -; N Unknown (unk; unk; n/a) Undet rare. Baleen whales (Mysticeti) Minke whale (Balaenoptera acutorostrata) Canadian East Coast -; N 2,591 (0.81; 1,425; n/a) 162 Year round in continental shelf and slope waters, occur seasonally to forage. Blue whale (Balaenoptera musculus) W. North Atlantic E; Y Unknown (unk; 440; n/a) 0.9 Year round in continental shelf and slope waters, occur seasonally to forage. Fin whale (Balaenoptera physalus) W. North Atlantic E; Y 1,618 (0.33; 1,234; n/a) 2.5 Year round in continental shelf and slope waters, occur seasonally to forage. Humpback whale (Megaptera novaeangliae) Gulf of Maine -; N 823 (0; 823; n/a) 2.7 Common year round. North Atlantic right whale (Eubalaena glacialis) W. North Atlantic E; Y 458 (0; 455; n/a) 1.4 Year round in continental shelf and slope waters, occur seasonally to forage. Sei whale (Balaenoptera borealis) Nova Scotia E; Y 357 (0.52; 236; n/a) 0.5 Year round in continental shelf and slope waters, occur seasonally to forage. Earless seals (Phocidae) Gray seal 6 (Halichoerus grypus) W. North Atlantic -; N 27,131 (0.10; 25,908; n/a) 1,554 Unlikely. Harbor seal (Phoca vitulina) W. North Atlantic -; N 75,834 (0.15; 66,884; 2012) 2,006 Common year round. Hooded seal (Cystophora cristata) W. North Atlantic -; N Unknown (unk; unk; n/a) Undet rare. Harp seal (Phoca groenlandica) North Atlantic -; N Unknown (unk; unk; n/a) Undet rare. 1 ESA status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR (see footnote 3) or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is automatically designated under the MMPA as depleted and as a strategic stock. 2 CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable. For certain stocks, abundance estimates are actual counts of animals and there is no associated CV. The most recent abundance survey that is reflected in the abundance estimate is presented; there may be more recent surveys that have not yet been incorporated into the estimate. All values presented here are from the 2016 Atlantic SARs. 3 Potential biological removal, defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population size (OSP). 4 Abundance estimate includes both dwarf and pygmy sperm whales. 5 Abundance estimate includes all species of Mesoplodon in the Atlantic. 6 Abundance estimate applies to U.S. population only, actual abundance is believed to be much larger.

    All species that could potentially occur in the proposed survey areas are included in Table 2. However, the temporal and/or spatial occurrence of 26 of the 37 species listed in Table 2 is such that take of these species is not expected to occur, and they are not discussed further beyond the explanation provided here. Take of these species is not anticipated either because they have very low densities in the project area, are known to occur further offshore than the project area, or are considered very unlikely to occur in the project area during the proposed survey due to the species' seasonal occurrence in the area.

    Three marine mammal species are listed under the Endangered Species Act (ESA) and are known to be present, at least seasonally, in the survey area and are included in the take request: North Atlantic right whale, fin whale, and sperm whale.

    Below is a description of the species that are both common in the survey area southeast of New York and that have the highest likelihood of occurring, at least seasonally, in the survey area and are thus are expected to be potentially be taken by the proposed activities. For the majority of species potentially present in the specific geographic region, NMFS has designated only a single generic stock (e.g., “western North Atlantic”) for management purposes. This includes the “Canadian east coast” stock of minke whales, which includes all minke whales found in U.S. waters. For humpback and sei whales, NMFS defines stocks on the basis of feeding locations, i.e., Gulf of Maine and Nova Scotia, respectively. However, our reference to humpback whales and sei whales in this document refers to any individuals of the species that are found in the specific geographic region.

    North Atlantic Right Whale

    The North Atlantic right whale ranges from the calving grounds in the southeastern United States to feeding grounds in New England waters and into Canadian waters (Waring et al., 2016). Surveys have demonstrated the existence of seven areas where North Atlantic right whales congregate seasonally, including Georges Bank, Cape Cod, and Massachusetts Bay (Waring et al., 2016). In the late fall months (e.g., October), right whales generally disappear from the feeding grounds in the North Atlantic and move south to their breeding grounds. The proposed survey area is within the North Atlantic right whale migratory corridor. During the proposed survey (i.e., March through August) right whales may be migrating through the proposed survey area and the surrounding waters.

    The western North Atlantic population demonstrated overall growth of 2.8 percent per year between 1990 to 2010, despite a decline in 1993 and no growth between 1997 and 2000 (Pace et al. 2017). However, since 2010 the population has been in decline, with a 99.99 percent probability of a decline of just under 1 percent per year (Pace et al. 2017). Between 1990 and 2015, calving rates varied substantially, with low calving rates coinciding with all three periods of decline or no growth (Pace et al. 2017). On average, North Atlantic right whale calving rates are estimated to be roughly half that of southern right whales (Eubalaena australis) (Pace et al. 2017), which are increasing in abundance (NMFS 2015).

    The current abundance estimate for this stock is 458 individuals (Hayes et al., 2018). Data indicates that the number of adult females fell from 200 in 2010 to 186 in 2015 while males fell from 283 to 272 in the same timeframe (Pace et al., 2017). In addition, elevated North Atlantic right whale mortalities have occurred since June 7, 2017. A total of 17 confirmed dead stranded whales (12 in Canada; 5 in the United States), with an additional 5 live whale entanglements in Canada, have been documented to date. This event has been declared an Unusual Mortality Event (UME). More information is available online at: http://www.nmfs.noaa.gov/pr/health/mmume/2017northatlanticrightwhaleume.html.

    Humpback Whale

    Humpback whales are found worldwide in all oceans. The humpback whale population within the North Atlantic has been estimated to include approximately 11,570 individuals (Waring et al., 2016). Humpbacks occur off southern New England in all four seasons, with peak abundance in spring and summer. In winter, humpback whales from waters off New England, Canada, Greenland, Iceland, and Norway migrate to mate and calve primarily in the West Indies (including the Antilles, the Dominican Republic, the Virgin Islands and Puerto Rico), where spatial and genetic mixing among these groups occurs (Waring et al., 2015). While migrating, humpback whales utilize the mid-Atlantic as a migration pathway between calving/mating grounds to the south and feeding grounds in the north (Waring et al. 2007).

    Since January 2016, elevated humpback whale mortalities have occurred along the Atlantic coast from Maine through North Carolina. Partial or full necropsy examinations have been conducted on approximately half of the 62 known cases. A portion of the whales have shown evidence of pre-mortem vessel strike; however, this finding is not consistent across all of the whales examined so more research is needed. NOAA is consulting with researchers that are conducting studies on the humpback whale populations, and these efforts may provide information on changes in whale distribution and habitat use that could provide additional insight into how these vessel interactions occurred. Three previous UMEs involving humpback whales have occurred since 2000, in 2003, 2005, and 2006. More information is available at www.nmfs.noaa.gov/pr/health/mmume/2017humpbackatlanticume.html.

    Fin Whale

    Fin whales are common in waters of the U.S. Atlantic Exclusive Economic Zone (EEZ), principally from Cape Hatteras northward (Waring et al., 2016). Fin whales are present north of 35-degree latitude in every season and are broadly distributed throughout the western North Atlantic for most of the year (Waring et al., 2016). Fin whales are found in small groups of up to 5 individuals (Brueggeman et al., 1987). The current abundance estimate for the western North Atlantic stock of fin whales is 1,618 individuals (Hayes et al., 2017). The main threats to fin whales are fishery interactions and vessel collisions (Waring et al., 2016).

    Minke Whale

    Minke whales can be found in temperate, tropical, and high-latitude waters. The Canadian East Coast stock can be found in the area from the western half of the Davis Strait (45° W) to the Gulf of Mexico (Waring et al., 2016). This species generally occupies waters less than 100 m deep on the continental shelf. There appears to be a strong seasonal component to minke whale distribution in which spring to fall are times of relatively widespread and common occurrence, and when the whales are most abundant in New England waters, while during winter the species appears to be largely absent (Waring et al., 2016). The main threats to this stock are interactions with fisheries, strandings, and vessel collisions.

    Sperm Whale

    The distribution of the sperm whale in the U.S. EEZ occurs on the continental shelf edge, over the continental slope, and into mid-ocean regions (Waring et al., 2014). The basic social unit of the sperm whale appears to be the mixed school of adult females plus their calves and some juveniles of both sexes, normally numbering 20-40 animals in all. There is evidence that some social bonds persist for many years (Christal et al., 1998). This species forms stable social groups, site fidelity, and latitudinal range limitations in groups of females and juveniles (Whitehead, 2002). In summer, the distribution of sperm whales includes the area east and north of Georges Bank and into the Northeast Channel region, as well as the continental shelf (inshore of the 100-m isobath) south of New England. In the fall, sperm whale occurrence south of New England on the continental shelf is at its highest level, and there remains a continental shelf edge occurrence in the mid-Atlantic bight. In winter, sperm whales are concentrated east and northeast of Cape Hatteras. The current abundance estimate for this stock is 2,288 (Hayes et al., 2017).

    Atlantic White-Sided Dolphin

    White-sided dolphins are found in temperate and sub-polar waters of the North Atlantic, primarily in continental shelf waters to the 100-m depth contour from central West Greenland to North Carolina (Waring et al., 2016). There are three stock units: Gulf of Maine, Gulf of St. Lawrence, and Labrador Sea stocks (Palka et al., 1997). The Gulf of Maine population of white-sided dolphins is most common in continental shelf waters from Hudson Canyon (approximately 39° N) to Georges Bank, and in the Gulf of Maine and lower Bay of Fundy. Sighting data indicate seasonal shifts in distribution (Northridge et al., 1997). During January to May, low numbers of white-sided dolphins are found from Georges Bank to Jeffreys Ledge (off New Hampshire), with even lower numbers south of Georges Bank, as documented by a few strandings collected on beaches of Virginia to South Carolina. From June through September, large numbers of white-sided dolphins are found from Georges Bank to the lower Bay of Fundy. From October to December, white-sided dolphins occur at intermediate densities from southern Georges Bank to southern Gulf of Maine (Payne and Heinemann 1990). Sightings south of Georges Bank, particularly around Hudson Canyon, occur year round but at low densities. The current abundance estimate for this stock is 48,819 (Hayes et al., 2017). The main threat to this species is interactions with fisheries.

    Short-Beaked Common Dolphin

    The short-beaked common dolphin is found worldwide in temperate to subtropical seas. In the North Atlantic, short-beaked common dolphins are commonly found over the continental shelf between the 100-m and 2,000-m isobaths and over prominent underwater topography and east to the mid-Atlantic Ridge (Waring et al., 2016). Only the western North Atlantic stock may be present in the Lease Area. The current abundance estimate for this stock is 70,184 animals (Hayes et al., 2017). The main threat to this species is interactions with fisheries.

    Bottlenose Dolphin

    There are two distinct bottlenose dolphin morphotypes: The coastal and offshore forms in the western North Atlantic (Waring et al., 2016). The offshore form is distributed primarily along the outer continental shelf and continental slope in the Northwest Atlantic Ocean from Georges Bank to the Florida Keys and is the only type that may be present in the survey area as the survey area is north of the northern extent of the range of the Western North Atlantic Northern Migratory Coastal Stock. The current abundance estimate for the western north Atlantic stock is 77,532 (Hayes et al., 2017). The main threat to this species is interactions with fisheries.

    Harbor Porpoise

    In the Lease Area, only the Gulf of Maine/Bay of Fundy stock may be present. This stock is found in U.S. and Canadian Atlantic waters and is concentrated in the northern Gulf of Maine and southern Bay of Fundy region, generally in waters less than 150 m deep (Waring et al., 2016). They are seen from the coastline to deep waters (>1800 m; Westgate et al. 1998), although the majority of the population is found over the continental shelf (Waring et al., 2016). Average group size for this stock in the Bay of Fundy is approximately four individuals (Palka 2007). The current abundance estimate for this stock is 79,883 (Hayes et al., 2017). The main threat to this species is interactions with fisheries, with documented take in the U.S. northeast sink gillnet, mid-Atlantic gillnet, and northeast bottom trawl fisheries and in the Canadian herring weir fisheries (Waring et al., 2016).

    Harbor Seal

    The harbor seal is found in all nearshore waters of the North Atlantic and North Pacific Oceans and adjoining seas above about 30° N (Burns, 2009). In the western North Atlantic, they are distributed from the eastern Canadian Arctic and Greenland south to southern New England and New York, and occasionally to the Carolinas (Waring et al., 2016). Haulout and pupping sites are located off Manomet, MA and the Isles of Shoals, ME, but generally do not occur in areas in southern New England (Waring et al., 2016). The current abundance estimate for this stock is 75,834 (Hayes et al., 2017). The main threat to this species is interactions with fisheries.

    Gray Seal

    There are three major populations of gray seals found in the world; eastern Canada (western North Atlantic stock), northwestern Europe and the Baltic Sea. The gray seals that occur in the Project Area belong to the western North Atlantic stock, which ranges from New Jersey to Labrador. Current population trends show that gray seal abundance is likely increasing in the U.S. Atlantic EEZ (Waring et al., 2016). Although the rate of increase is unknown, surveys conducted since their arrival in the 1980s indicate a steady increase in abundance in both Maine and Massachusetts (Waring et al., 2016). It is believed that recolonization by Canadian gray seals is the source of the U.S. population (Waring et al., 2016).

    Marine Mammal Hearing

    Hearing is the most important sensory modality for marine mammals underwater, and exposure to anthropogenic sound can have deleterious effects. To appropriately assess the potential effects of exposure to sound, it is necessary to understand the frequency ranges marine mammals are able to hear. Current data indicate that not all marine mammal species have equal hearing capabilities (e.g., Richardson et al., 1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect this, Southall et al. (2007) recommended that marine mammals be divided into functional hearing groups based on directly measured or estimated hearing ranges on the basis of available behavioral response data, audiograms derived using auditory evoked potential techniques, anatomical modeling, and other data. Note that no direct measurements of hearing ability have been successfully completed for mysticetes (i.e., low-frequency cetaceans). Subsequently, NMFS (2016) described generalized hearing ranges for these marine mammal hearing groups. Generalized hearing ranges were chosen based on the approximately 65 dB threshold from the normalized composite audiograms, with the exception for lower limits for low-frequency cetaceans where the lower bound was deemed to be biologically implausible and the lower bound from Southall et al. (2007) retained. The functional groups and the associated frequencies are indicated below (note that these frequency ranges correspond to the range for the composite group, with the entire range not necessarily reflecting the capabilities of every species within that group):

    • Low-frequency cetaceans (mysticetes): generalized hearing is estimated to occur between approximately 7 Hertz (Hz) and 35 kilohertz (kHz);

    • Mid-frequency cetaceans (larger toothed whales, beaked whales, and most delphinids): generalized hearing is estimated to occur between approximately 150 Hz and 160 kHz;

    • High-frequency cetaceans (porpoises, river dolphins, and members of the genera Kogia and Cephalorhynchus; including two members of the genus Lagenorhynchus, on the basis of recent echolocation data and genetic data): generalized hearing is estimated to occur between approximately 275 Hz and 160 kHz.

    • Pinnipeds in water; Phocidae (true seals): generalized hearing is estimated to occur between approximately 50 Hz to 86 kH;

    The pinniped functional hearing group was modified from Southall et al. (2007) on the basis of data indicating that phocid species have consistently demonstrated an extended frequency range of hearing compared to otariids, especially in the higher frequency range (Hemilä et al., 2006; Kastelein et al., 2009; Reichmuth and Holt, 2013).

    For more detail concerning these groups and associated frequency ranges, please see NMFS (2016) for a review of available information. Eleven marine mammal species (nine cetacean and two pinniped (both phocid) species) have the reasonable potential to co-occur with the proposed survey activities. Please refer to Table 2. Of the cetacean species that may be present, five are classified as low-frequency cetaceans (i.e., all mysticete species), three are classified as mid-frequency cetaceans (i.e., all delphinid species and the sperm whale), and one is classified as a high-frequency cetacean (i.e., harbor porpoise).

    Potential Effects of Specified Activities on Marine Mammals and Their Habitat

    This section includes a summary and discussion of the ways that components of the specified activity may impact marine mammals and their habitat. The “Estimated Take” section later in this document includes a quantitative analysis of the number of individuals that are expected to be taken by this activity. The “Negligible Impact Analysis and Determination” section considers the content of this section, the “Estimated Take” section, and the “Proposed Mitigation” section, to draw conclusions regarding the likely impacts of these activities on the reproductive success or survivorship of individuals and how those impacts on individuals are likely to impact marine mammal species or stocks.

    Background on Sound

    Sound is a physical phenomenon consisting of minute vibrations that travel through a medium, such as air or water, and is generally characterized by several variables. Frequency describes the sound's pitch and is measured in Hz or kHz, while sound level describes the sound's intensity and is measured in decibels (dB). Sound level increases or decreases exponentially with each dB of change. The logarithmic nature of the scale means that each 10-dB increase is a 10-fold increase in acoustic power (and a 20-dB increase is then a 100-fold increase in power). A 10-fold increase in acoustic power does not mean that the sound is perceived as being 10 times louder, however. Sound levels are compared to a reference sound pressure (micro-Pascal) to identify the medium. For air and water, these reference pressures are “re: 20 micro Pascals (µPa)” and “re: 1 µPa,” respectively. Root mean square (RMS) is the quadratic mean sound pressure over the duration of an impulse. RMS is calculated by squaring all of the sound amplitudes, averaging the squares, and then taking the square root of the average (Urick 1975). RMS accounts for both positive and negative values; squaring the pressures makes all values positive so that they may be accounted for in the summation of pressure levels. This measurement is often used in the context of discussing behavioral effects, in part because behavioral effects, which often result from auditory cues, may be better expressed through averaged units rather than by peak pressures.

    When sound travels (propagates) from its source, its loudness decreases as the distance traveled by the sound increases. Thus, the loudness of a sound at its source is higher than the loudness of that same sound one km away. Acousticians often refer to the loudness of a sound at its source (typically referenced to one meter from the source) as the source level and the loudness of sound elsewhere as the received level (i.e., typically the receiver). For example, a humpback whale 3 km from a device that has a source level of 230 dB may only be exposed to sound that is 160 dB loud, depending on how the sound travels through water (e.g., spherical spreading (6 dB reduction with doubling of distance) was used in this example). As a result, it is important to understand the difference between source levels and received levels when discussing the loudness of sound in the ocean or its impacts on the marine environment.

    As sound travels from a source, its propagation in water is influenced by various physical characteristics, including water temperature, depth, salinity, and surface and bottom properties that cause refraction, reflection, absorption, and scattering of sound waves. Oceans are not homogeneous and the contribution of each of these individual factors is extremely complex and interrelated. The physical characteristics that determine the sound's speed through the water will change with depth, season, geographic location, and with time of day (as a result, in actual active sonar operations, crews will measure oceanic conditions, such as sea water temperature and depth, to calibrate models that determine the path the sonar signal will take as it travels through the ocean and how strong the sound signal will be at a given range along a particular transmission path). As sound travels through the ocean, the intensity associated with the wavefront diminishes, or attenuates. This decrease in intensity is referred to as propagation loss, also commonly called transmission loss.

    Acoustic Impacts

    Geophysical surveys may temporarily impact marine mammals in the area due to elevated in-water sound levels. Marine mammals are continually exposed to many sources of sound. Naturally occurring sounds such as lightning, rain, sub-sea earthquakes, and biological sounds (e.g., snapping shrimp, whale songs) are widespread throughout the world's oceans. Marine mammals produce sounds in various contexts and use sound for various biological functions including, but not limited to: (1) Social interactions; (2) foraging; (3) orientation; and (4) predator detection. Interference with producing or receiving these sounds may result in adverse impacts. Audible distance, or received levels of sound depend on the nature of the sound source, ambient noise conditions, and the sensitivity of the receptor to the sound (Richardson et al., 1995). Type and significance of marine mammal reactions to sound are likely dependent on a variety of factors including, but not limited to, (1) the behavioral state of the animal (e.g., feeding, traveling, etc.); (2) frequency of the sound; (3) distance between the animal and the source; and (4) the level of the sound relative to ambient conditions (Southall et al., 2007).

    When considering the influence of various kinds of sound on the marine environment, it is necessary to understand that different kinds of marine life are sensitive to different frequencies of sound. Current data indicate that not all marine mammal species have equal hearing capabilities (Richardson et al., 1995; Wartzok and Ketten, 1999; Au and Hastings, 2008).

    Animals are less sensitive to sounds at the outer edges of their functional hearing range and are more sensitive to a range of frequencies within the middle of their functional hearing range. For mid-frequency cetaceans, functional hearing estimates occur between approximately 150 Hz and 160 kHz with best hearing estimated to occur between approximately 10 to less than 100 kHz (Finneran et al., 2005 and 2009, Natchtigall et al., 2005 and 2008; Yuen et al., 2005; Popov et al., 2011; and Schlundt et al., 2011).

    Hearing Impairment

    Marine mammals may experience temporary or permanent hearing impairment when exposed to loud sounds. Hearing impairment is classified by temporary threshold shift (TTS) and permanent threshold shift (PTS). PTS is considered auditory injury (Southall et al., 2007) and occurs in a specific frequency range and amount. Irreparable damage to the inner or outer cochlear hair cells may cause PTS; however, other mechanisms are also involved, such as exceeding the elastic limits of certain tissues and membranes in the middle and inner ears and resultant changes in the chemical composition of the inner ear fluids (Southall et al., 2007). There are no empirical data for onset of PTS in any marine mammal; therefore, PTS-onset must be estimated from TTS-onset measurements and from the rate of TTS growth with increasing exposure levels above the level eliciting TTS-onset. PTS is presumed to be likely if the hearing threshold is reduced by ≥40 dB (that is, 40 dB of TTS).

    Temporary Threshold Shift (TTS)

    TTS is the mildest form of hearing impairment that can occur during exposure to a loud sound (Kryter 1985). While experiencing TTS, the hearing threshold rises and a sound must be stronger in order to be heard. At least in terrestrial mammals, TTS can last from minutes or hours to (in cases of strong TTS) days, can be limited to a particular frequency range, and can occur to varying degrees (i.e., a loss of a certain number of dBs of sensitivity). For sound exposures at or somewhat above the TTS threshold, hearing sensitivity in both terrestrial and marine mammals recovers rapidly after exposure to the noise ends.

    Marine mammal hearing plays a critical role in communication with conspecifics and in interpretation of environmental cues for purposes such as predator avoidance and prey capture. Depending on the degree (elevation of threshold in dB), duration (i.e., recovery time), and frequency range of TTS and the context in which it is experienced, TTS can have effects on marine mammals ranging from discountable to serious. For example, a marine mammal may be able to readily compensate for a brief, relatively small amount of TTS in a non-critical frequency range that takes place during a time when the animals is traveling through the open ocean, where ambient noise is lower and there are not as many competing sounds present. Alternatively, a larger amount and longer duration of TTS sustained during a time when communication is critical for successful mother/calf interactions could have more serious impacts if it were in the same frequency band as the necessary vocalizations and of a severity that it impeded communication. The fact that animals exposed to levels and durations of sound that would be expected to result in this physiological response would also be expected to have behavioral responses of a comparatively more severe or sustained nature is also notable and potentially of more importance than the simple existence of a TTS.

    Currently, TTS data only exist for four species of cetaceans (bottlenose dolphin, beluga whale (Delphinapterus leucas), harbor porpoise, and Yangtze finless porpoise (Neophocaena phocaenoides)) and three species of pinnipeds (northern elephant seal (Mirounga angustirostris), harbor seal, and California sea lion (Zalophus californianus)) exposed to a limited number of sound sources (i.e., mostly tones and octave-band noise) in laboratory settings (e.g., Finneran et al., 2002 and 2010; Nachtigall et al., 2004; Kastak et al., 2005; Lucke et al., 2009; Mooney et al., 2009; Popov et al., 2011; Finneran and Schlundt, 2010). In general, harbor seals (Kastak et al., 2005; Kastelein et al., 2012a) and harbor porpoises (Lucke et al., 2009; Kastelein et al., 2012b) have a lower TTS onset than other measured pinniped or cetacean species. However, even for these animals, which are better able to hear higher frequencies and may be more sensitive to higher frequencies, exposures on the order of approximately 170 dB rms or higher for brief transient signals are likely required for even temporary (recoverable) changes in hearing sensitivity that would likely not be categorized as physiologically damaging (Lucke et al., 2009). Additionally, the existing marine mammal TTS data come from a limited number of individuals within these species. There are no data available on noise-induced hearing loss for mysticetes. For summaries of data on TTS in marine mammals or for further discussion of TTS onset thresholds, please see Finneran (2016).

    Scientific literature highlights the inherent complexity of predicting TTS onset in marine mammals, as well as the importance of considering exposure duration when assessing potential impacts (Mooney et al., 2009a, 2009b; Kastak et al., 2007). Generally, with sound exposures of equal energy, quieter sounds (lower sound pressure levels (SPL)) of longer duration were found to induce TTS onset more than louder sounds (higher SPL) of shorter duration (more similar to sub-bottom profilers). For intermittent sounds, less threshold shift will occur than from a continuous exposure with the same energy (some recovery will occur between intermittent exposures) (Kryter et al., 1966; Ward 1997). For sound exposures at or somewhat above the TTS-onset threshold, hearing sensitivity recovers rapidly after exposure to the sound ends; intermittent exposures recover faster in comparison with continuous exposures of the same duration (Finneran et al., 2010). NMFS considers TTS as Level B harassment that is mediated by physiological effects on the auditory system.

    Animals in the Lease Area during the HRG survey are unlikely to incur TTS hearing impairment due to the characteristics of the sound sources, which include low source levels (208 to 221 dB re 1 µPa-m) and generally very short pulses and duration of the sound. Even for high-frequency cetacean species (e.g., harbor porpoises), which may have increased sensitivity to TTS (Lucke et al., 2009; Kastelein et al., 2012b), individuals would have to make a very close approach and also remain very close to vessels operating these sources in order to receive multiple exposures at relatively high levels, as would be necessary to cause TTS. Intermittent exposures—as would occur due to the brief, transient signals produced by these sources—require a higher cumulative SEL to induce TTS than would continuous exposures of the same duration (i.e., intermittent exposure results in lower levels of TTS) (Mooney et al., 2009a; Finneran et al., 2010). Moreover, most marine mammals would more likely avoid a loud sound source rather than swim in such close proximity as to result in TTS. Kremser et al. (2005) noted that the probability of a cetacean swimming through the area of exposure when a sub-bottom profiler emits a pulse is small—because if the animal was in the area, it would have to pass the transducer at close range in order to be subjected to sound levels that could cause TTS and would likely exhibit avoidance behavior to the area near the transducer rather than swim through at such a close range. Further, the restricted beam shape of the sub-bottom profiler and other HRG survey equipment makes it unlikely that an animal would be exposed more than briefly during the passage of the vessel. Boebel et al. (2005) concluded similarly for single and multibeam echosounders and, more recently, Lurton (2016) conducted a modeling exercise and concluded similarly that likely potential for acoustic injury from these types of systems is negligible but that behavioral response cannot be ruled out. Animals may avoid the area around the survey vessels, thereby reducing exposure. Any disturbance to marine mammals is likely to be in the form of temporary avoidance or alteration of opportunistic foraging behavior near the survey location.

    Masking

    Masking is the obscuring of sounds of interest to an animal by other sounds, typically at similar frequencies. Marine mammals are highly dependent on sound, and their ability to recognize sound signals amid other sound is important in communication and detection of both predators and prey (Tyack 2000). Background ambient sound may interfere with or mask the ability of an animal to detect a sound signal even when that signal is above its absolute hearing threshold. Even in the absence of anthropogenic sound, the marine environment is often loud. Natural ambient sound includes contributions from wind, waves, precipitation, other animals, and (at frequencies above 30 kHz) thermal sound resulting from molecular agitation (Richardson et al., 1995).

    Background sound may also include anthropogenic sound, and masking of natural sounds can result when human activities produce high levels of background sound. Conversely, if the background level of underwater sound is high (e.g., on a day with strong wind and high waves), an anthropogenic sound source would not be detectable as far away as would be possible under quieter conditions and would itself be masked. Ambient sound is highly variable on continental shelves (Myrberg 1978; Desharnais et al., 1999). This results in a high degree of variability in the range at which marine mammals can detect anthropogenic sounds.

    Although masking is a phenomenon which may occur naturally, the introduction of loud anthropogenic sounds into the marine environment at frequencies important to marine mammals increases the severity and frequency of occurrence of masking. For example, if a baleen whale is exposed to continuous low-frequency sound from an industrial source, this would reduce the size of the area around that whale within which it can hear the calls of another whale. The components of background noise that are similar in frequency to the signal in question primarily determine the degree of masking of that signal. In general, little is known about the degree to which marine mammals rely upon detection of sounds from conspecifics, predators, prey, or other natural sources. In the absence of specific information about the importance of detecting these natural sounds, it is not possible to predict the impact of masking on marine mammals (Richardson et al., 1995). In general, masking effects are expected to be less severe when sounds are transient than when they are continuous. Masking is typically of greater concern for those marine mammals that utilize low-frequency communications, such as baleen whales, because of how far low-frequency sounds propagate.

    Marine mammal communications would not likely be masked appreciably by the sub-bottom profiler signals given the directionality of the signal and the brief period when an individual mammal is likely to be within its beam.

    Non-Auditory Physical Effects (Stress)

    Classic stress responses begin when an animal's central nervous system perceives a potential threat to its homeostasis. That perception triggers stress responses regardless of whether a stimulus actually threatens the animal; the mere perception of a threat is sufficient to trigger a stress response (Moberg 2000; Seyle 1950). Once an animal's central nervous system perceives a threat, it mounts a biological response or defense that consists of a combination of the four general biological defense responses: behavioral responses, autonomic nervous system responses, neuroendocrine responses, or immune responses.

    In the case of many stressors, an animal's first and sometimes most economical (in terms of biotic costs) response is behavioral avoidance of the potential stressor or avoidance of continued exposure to a stressor. An animal's second line of defense to stressors involves the sympathetic part of the autonomic nervous system and the classical “fight or flight” response which includes the cardiovascular system, the gastrointestinal system, the exocrine glands, and the adrenal medulla to produce changes in heart rate, blood pressure, and gastrointestinal activity that humans commonly associate with “stress.” These responses have a relatively short duration and may or may not have significant long-term effect on an animal's welfare.

    An animal's third line of defense to stressors involves its neuroendocrine systems; the system that has received the most study has been the hypothalamus-pituitary-adrenal system (also known as the HPA axis in mammals). Unlike stress responses associated with the autonomic nervous system, virtually all neuro-endocrine functions that are affected by stress—including immune competence, reproduction, metabolism, and behavior—are regulated by pituitary hormones. Stress-induced changes in the secretion of pituitary hormones have been implicated in failed reproduction (Moberg 1987; Rivier 1995), altered metabolism (Elasser et al., 2000), reduced immune competence (Blecha 2000), and behavioral disturbance. Increases in the circulation of glucocorticosteroids (cortisol, corticosterone, and aldosterone in marine mammals; see Romano et al., 2004) have been equated with stress for many years.

    The primary distinction between stress (which is adaptive and does not normally place an animal at risk) and distress is the biotic cost of the response. During a stress response, an animal uses glycogen stores that can be quickly replenished once the stress is alleviated. In such circumstances, the cost of the stress response would not pose a risk to the animal's welfare. However, when an animal does not have sufficient energy reserves to satisfy the energetic costs of a stress response, energy resources must be diverted from other biotic function, which impairs those functions that experience the diversion. For example, when mounting a stress response diverts energy away from growth in young animals, those animals may experience stunted growth. When mounting a stress response diverts energy from a fetus, an animal's reproductive success and its fitness will suffer. In these cases, the animals will have entered a pre-pathological or pathological state which is called “distress” (Seyle 1950) or “allostatic loading” (McEwen and Wingfield 2003). This pathological state will last until the animal replenishes its biotic reserves sufficient to restore normal function. Note that these examples involved a long-term (days or weeks) stress response exposure to stimuli.

    Relationships between these physiological mechanisms, animal behavior, and the costs of stress responses have also been documented fairly well through controlled experiments; because this physiology exists in every vertebrate that has been studied, it is not surprising that stress responses and their costs have been documented in both laboratory and free-living animals (for examples see, Holberton et al., 1996; Hood et al., 1998; Jessop et al., 2003; Krausman et al., 2004; Lankford et al., 2005; Reneerkens et al., 2002; Thompson and Hamer, 2000). Information has also been collected on the physiological responses of marine mammals to exposure to anthropogenic sounds (Fair and Becker 2000; Romano et al., 2002). For example, Rolland et al. (2012) found that noise reduction from reduced ship traffic in the Bay of Fundy was associated with decreased stress in North Atlantic right whales.

    Studies of other marine animals and terrestrial animals would also lead us to expect some marine mammals to experience physiological stress responses and, perhaps, physiological responses that would be classified as “distress” upon exposure to high frequency, mid-frequency and low-frequency sounds. For example, Jansen (1998) reported on the relationship between acoustic exposures and physiological responses that are indicative of stress responses in humans (for example, elevated respiration and increased heart rates). Jones (1998) reported on reductions in human performance when faced with acute, repetitive exposures to acoustic disturbance. Trimper et al. (1998) reported on the physiological stress responses of osprey to low-level aircraft noise while Krausman et al. (2004) reported on the auditory and physiology stress responses of endangered Sonoran pronghorn to military overflights. Smith et al. (2004a, 2004b), for example, identified noise-induced physiological transient stress responses in hearing-specialist fish (i.e., goldfish) that accompanied short- and long-term hearing losses. Welch and Welch (1970) reported physiological and behavioral stress responses that accompanied damage to the inner ears of fish and several mammals.

    Hearing is one of the primary senses marine mammals use to gather information about their environment and to communicate with conspecifics. Although empirical information on the relationship between sensory impairment (TTS, PTS, and acoustic masking) on marine mammals remains limited, it seems reasonable to assume that reducing an animal's ability to gather information about its environment and to communicate with other members of its species would be stressful for animals that use hearing as their primary sensory mechanism. Therefore, we assume that acoustic exposures sufficient to trigger onset PTS or TTS would be accompanied by physiological stress responses because terrestrial animals exhibit those responses under similar conditions (NRC 2003). More importantly, marine mammals might experience stress responses at received levels lower than those necessary to trigger onset TTS. Based on empirical studies of the time required to recover from stress responses (Moberg 2000), we also assume that stress responses are likely to persist beyond the time interval required for animals to recover from TTS and might result in pathological and pre-pathological states that would be as significant as behavioral responses to TTS.

    In general, there are few data on the potential for strong, anthropogenic underwater sounds to cause non-auditory physical effects in marine mammals. The available data do not allow identification of a specific exposure level above which non-auditory effects can be expected (Southall et al., 2007). There is no definitive evidence that any of these effects occur even for marine mammals in close proximity to an anthropogenic sound source. In addition, marine mammals that show behavioral avoidance of survey vessels and related sound sources are unlikely to incur non-auditory impairment or other physical effects. NMFS does not expect that the generally short-term, intermittent, and transitory HRG and geotechnical activities would create conditions of long-term, continuous noise and chronic acoustic exposure leading to long-term physiological stress responses in marine mammals.

    Behavioral Disturbance

    Behavioral disturbance may include a variety of effects, including subtle changes in behavior (e.g., minor or brief avoidance of an area or changes in vocalizations), more conspicuous changes in similar behavioral activities, and more sustained and/or potentially severe reactions, such as displacement from or abandonment of high-quality habitat. Behavioral responses to sound are highly variable and context-specific and any reactions depend on numerous intrinsic and extrinsic factors (e.g., species, state of maturity, experience, current activity, reproductive state, auditory sensitivity, time of day), as well as the interplay between factors (e.g., Richardson et al., 1995; Wartzok et al., 2003; Southall et al., 2007; Weilgart, 2007; Archer et al., 2010). Behavioral reactions can vary not only among individuals but also within an individual, depending on previous experience with a sound source, context, and numerous other factors (Ellison et al., 2012), and can vary depending on characteristics associated with the sound source (e.g., whether it is moving or stationary, number of sources, distance from the source). Please see Appendices B-C of Southall et al. (2007) for a review of studies involving marine mammal behavioral responses to sound.

    Habituation can occur when an animal's response to a stimulus wanes with repeated exposure, usually in the absence of unpleasant associated events (Wartzok et al., 2003). Animals are most likely to habituate to sounds that are predictable and unvarying. It is important to note that habituation is appropriately considered as a “progressive reduction in response to stimuli that are perceived as neither aversive nor beneficial,” rather than as, more generally, moderation in response to human disturbance (Bejder et al., 2009). The opposite process is sensitization, when an unpleasant experience leads to subsequent responses, often in the form of avoidance, at a lower level of exposure. As noted, behavioral state may affect the type of response. For example, animals that are resting may show greater behavioral change in response to disturbing sound levels than animals that are highly motivated to remain in an area for feeding (Richardson et al., 1995; NRC 2003; Wartzok et al., 2003). Controlled experiments with captive marine mammals have shown pronounced behavioral reactions, including avoidance of loud sound sources (Ridgway et al., 1997; Finneran et al., 2003). Observed responses of wild marine mammals to loud, pulsed sound sources (typically seismic airguns or acoustic harassment devices) have been varied but often consist of avoidance behavior or other behavioral changes suggesting discomfort (Morton and Symonds, 2002; see also Richardson et al., 1995; Nowacek et al., 2007).

    Available studies show wide variation in response to underwater sound; therefore, it is difficult to predict specifically how any given sound in a particular instance might affect marine mammals perceiving the signal. If a marine mammal does react briefly to an underwater sound by changing its behavior or moving a small distance, the impacts of the change are unlikely to be significant to the individual, let alone the stock or population. However, if a sound source displaces marine mammals from an important feeding or breeding area for a prolonged period, impacts on individuals and populations could be significant (e.g., Lusseau and Bejder, 2007; Weilgart 2007; NRC 2005). However, there are broad categories of potential response, which we describe in greater detail here, that include alteration of dive behavior, alteration of foraging behavior, effects to breathing, interference with or alteration of vocalization, avoidance, and flight.

    Changes in dive behavior can vary widely and may consist of increased or decreased dive times and surface intervals as well as changes in the rates of ascent and descent during a dive (e.g., Frankel and Clark 2000; Costa et al., 2003; Ng and Leung 2003; Nowacek et al., 2004; Goldbogen et al., 2013a,b). Variations in dive behavior may reflect interruptions in biologically significant activities (e.g., foraging) or they may be of little biological significance. The impact of an alteration to dive behavior resulting from an acoustic exposure depends on what the animal is doing at the time of the exposure and the type and magnitude of the response.

    Disruption of feeding behavior can be difficult to correlate with anthropogenic sound exposure, so it is usually inferred by observed displacement from known foraging areas, the appearance of secondary indicators (e.g., bubble nets or sediment plumes), or changes in dive behavior. As for other types of behavioral response, the frequency, duration, and temporal pattern of signal presentation, as well as differences in species sensitivity, are likely contributing factors to differences in response in any given circumstance (e.g., Croll et al., 2001; Nowacek et al.; 2004; Madsen et al., 2006; Yazvenko et al., 2007). A determination of whether foraging disruptions incur fitness consequences would require information on or estimates of the energetic requirements of the affected individuals and the relationship between prey availability, foraging effort and success, and the life history stage of the animal.

    Variations in respiration naturally vary with different behaviors and alterations to breathing rate as a function of acoustic exposure can be expected to co-occur with other behavioral reactions, such as a flight response or an alteration in diving. However, respiration rates in and of themselves may be representative of annoyance or an acute stress response. Various studies have shown that respiration rates may either be unaffected or could increase, depending on the species and signal characteristics, again highlighting the importance in understanding species differences in the tolerance of underwater noise when determining the potential for impacts resulting from anthropogenic sound exposure (e.g., Kastelein et al., 2001, 2005b, 2006; Gailey et al., 2007).

    Marine mammals vocalize for different purposes and across multiple modes, such as whistling, echolocation click production, calling, and singing. Changes in vocalization behavior in response to anthropogenic noise can occur for any of these modes and may result from a need to compete with an increase in background noise or may reflect increased vigilance or a startle response. For example, in the presence of potentially masking signals, humpback whales and killer whales have been observed to increase the length of their songs (Miller et al., 2000; Fristrup et al., 2003; Foote et al., 2004), while right whales have been observed to shift the frequency content of their calls upward while reducing the rate of calling in areas of increased anthropogenic noise (Parks et al., 2007b). In some cases, animals may cease sound production during production of aversive signals (Bowles et al., 1994).

    Avoidance is the displacement of an individual from an area or migration path as a result of the presence of a sound or other stressors, and is one of the most obvious manifestations of disturbance in marine mammals (Richardson et al., 1995). For example, gray whales are known to change direction—deflecting from customary migratory paths—in order to avoid noise from seismic surveys (Malme et al., 1984). Avoidance may be short-term, with animals returning to the area once the noise has ceased (e.g., Bowles et al., 1994; Goold 1996; Stone et al., 2000; Morton and Symonds, 2002; Gailey et al., 2007). Longer-term displacement is possible, however, which may lead to changes in abundance or distribution patterns of the affected species in the affected region if habituation to the presence of the sound does not occur (e.g., Blackwell et al., 2004; Bejder et al., 2006; Teilmann et al., 2006).

    A flight response is a dramatic change in normal movement to a directed and rapid movement away from the perceived location of a sound source. The flight response differs from other avoidance responses in the intensity of the response (e.g., directed movement, rate of travel). Relatively little information on flight responses of marine mammals to anthropogenic signals exist, although observations of flight responses to the presence of predators have occurred (Connor and Heithaus, 1996). The result of a flight response could range from brief, temporary exertion and displacement from the area where the signal provokes flight to, in extreme cases, marine mammal strandings (Evans and England, 2001). However, it should be noted that response to a perceived predator does not necessarily invoke flight (Ford and Reeves, 2008) and whether individuals are solitary or in groups may influence the response.

    Behavioral disturbance can also impact marine mammals in more subtle ways. Increased vigilance may result in costs related to diversion of focus and attention (i.e., when a response consists of increased vigilance, it may come at the cost of decreased attention to other critical behaviors such as foraging or resting). These effects have generally not been demonstrated for marine mammals, but studies involving fish and terrestrial animals have shown that increased vigilance may substantially reduce feeding rates (e.g., Beauchamp and Livoreil, 1997; Fritz et al., 2002; Purser and Radford, 2011). In addition, chronic disturbance can cause population declines through reduction of fitness (e.g., decline in body condition) and subsequent reduction in reproductive success, survival, or both (e.g., Harrington and Veitch, 1992; Daan et al., 1996; Bradshaw et al., 1998). However, Ridgway et al. (2006) reported that increased vigilance in bottlenose dolphins exposed to sound over a five-day period did not cause any sleep deprivation or stress effects.

    Many animals perform vital functions, such as feeding, resting, traveling, and socializing, on a diel cycle (24-hour cycle). Disruption of such functions resulting from reactions to stressors such as sound exposure are more likely to be significant if they last more than one diel cycle or recur on subsequent days (Southall et al., 2007). Consequently, a behavioral response lasting less than one day and not recurring on subsequent days is not considered particularly severe unless it could directly affect reproduction or survival (Southall et al., 2007). Note that there is a difference between multi-day substantive behavioral reactions and multi-day anthropogenic activities. For example, just because an activity lasts for multiple days does not necessarily mean that individual animals are either exposed to activity-related stressors for multiple days or, further, exposed in a manner resulting in sustained multi-day substantive behavioral responses.

    Marine mammals are likely to avoid the HRG survey activity, especially the naturally shy harbor porpoise, while the harbor seals might be attracted to them out of curiosity. However, because the sub-bottom profilers and other HRG survey equipment operate from a moving vessel, and the maximum radius to the Level B harassment threshold is relatively small, the area and time that this equipment would be affecting a given location is very small. Further, once an area has been surveyed, it is not likely that it will be surveyed again, thereby reducing the likelihood of repeated HRG-related impacts within the survey area.

    We have also considered the potential for severe behavioral responses such as stranding and associated indirect injury or mortality from Statoil's use of HRG survey equipment, on the basis of a 2008 mass stranding of approximately 100 melon-headed whales in a Madagascar lagoon system. An investigation of the event indicated that use of a high-frequency mapping system (12-kHz multibeam echosounder) was the most plausible and likely initial behavioral trigger of the event, while providing the caveat that there is no unequivocal and easily identifiable single cause (Southall et al., 2013). The investigatory panel's conclusion was based on (1) very close temporal and spatial association and directed movement of the survey with the stranding event; (2) the unusual nature of such an event coupled with previously documented apparent behavioral sensitivity of the species to other sound types (Southall et al., 2006; Brownell et al., 2009); and (3) the fact that all other possible factors considered were determined to be unlikely causes. Specifically, regarding survey patterns prior to the event and in relation to bathymetry, the vessel transited in a north-south direction on the shelf break parallel to the shore, ensonifying large areas of deep-water habitat prior to operating intermittently in a concentrated area offshore from the stranding site; this may have trapped the animals between the sound source and the shore, thus driving them towards the lagoon system. The investigatory panel systematically excluded or deemed highly unlikely nearly all potential reasons for these animals leaving their typical pelagic habitat for an area extremely atypical for the species (i.e., a shallow lagoon system). Notably, this was the first time that such a system has been associated with a stranding event. The panel also noted several site- and situation-specific secondary factors that may have contributed to the avoidance responses that led to the eventual entrapment and mortality of the whales. Specifically, shoreward-directed surface currents and elevated chlorophyll levels in the area preceding the event may have played a role (Southall et al., 2013). The report also notes that prior use of a similar system in the general area may have sensitized the animals and also concluded that, for odontocete cetaceans that hear well in higher frequency ranges where ambient noise is typically quite low, high-power active sonars operating in this range may be more easily audible and have potential effects over larger areas than low frequency systems that have more typically been considered in terms of anthropogenic noise impacts. It is, however, important to note that the relatively lower output frequency, higher output power, and complex nature of the system implicated in this event, in context of the other factors noted here, likely produced a fairly unusual set of circumstances that indicate that such events would likely remain rare and are not necessarily relevant to use of lower-power, higher-frequency systems more commonly used for HRG survey applications. The risk of similar events recurring may be very low, given the extensive use of active acoustic systems used for scientific and navigational purposes worldwide on a daily basis and the lack of direct evidence of such responses previously reported.

    Tolerance

    Numerous studies have shown that underwater sounds from industrial activities are often readily detectable by marine mammals in the water at distances of many km. However, other studies have shown that marine mammals at distances more than a few km away often show no apparent response to industrial activities of various types (Miller et al., 2005). This is often true even in cases when the sounds must be readily audible to the animals based on measured received levels and the hearing sensitivity of that mammal group. Although various baleen whales, toothed whales, and (less frequently) pinnipeds have been shown to react behaviorally to underwater sound from sources such as airgun pulses or vessels under some conditions, at other times, mammals of all three types have shown no overt reactions (e.g., Malme et al., 1986; Richardson et al., 1995; Madsen and Mohl 2000; Croll et al., 2001; Jacobs and Terhune 2002; Madsen et al., 2002; Miller et al., 2005). In general, pinnipeds seem to be more tolerant of exposure to some types of underwater sound than are baleen whales. Richardson et al. (1995) found that vessel sound does not seem to affect pinnipeds that are already in the water. Richardson et al. (1995) went on to explain that seals on haul-outs sometimes respond strongly to the presence of vessels and at other times appear to show considerable tolerance of vessels, and Brueggeman et al. (1992) observed ringed seals (Pusa hispida) hauled out on ice pans displaying short-term escape reactions when a ship approached within 0.16-0.31 miles (0.25-0.5 km). Due to the relatively high vessel traffic in the Lease Area it is possible that marine mammals are habituated to noise (e.g., DP thrusters) from project vessels in the area.

    Vessel Strike

    Ship strikes of marine mammals can cause major wounds, which may lead to the death of the animal. An animal at the surface could be struck directly by a vessel, a surfacing animal could hit the bottom of a vessel, or a vessel's propeller could injure an animal just below the surface. The severity of injuries typically depends on the size and speed of the vessel (Knowlton and Kraus 2001; Laist et al., 2001; Vanderlaan and Taggart 2007).

    The most vulnerable marine mammals are those that spend extended periods of time at the surface in order to restore oxygen levels within their tissues after deep dives (e.g., the sperm whale). In addition, some baleen whales, such as the North Atlantic right whale, seem generally unresponsive to vessel sound, making them more susceptible to vessel collisions (Nowacek et al., 2004). These species are primarily large, slow moving whales. Smaller marine mammals (e.g., bottlenose dolphin) move quickly through the water column and are often seen riding the bow wave of large ships. Marine mammal responses to vessels may include avoidance and changes in dive pattern (NRC 2003).

    An examination of all known ship strikes from all shipping sources (civilian and military) indicates vessel speed is a principal factor in whether a vessel strike results in death (Knowlton and Kraus 2001; Laist et al., 2001; Jensen and Silber 2003; Vanderlaan and Taggart 2007). In assessing records with known vessel speeds, Laist et al. (2001) found a direct relationship between the occurrence of a whale strike and the speed of the vessel involved in the collision. The authors concluded that most deaths occurred when a vessel was traveling in excess of 24.1 km/h (14.9 mph; 13 knots (kn)). Given the slow vessel speeds and predictable course necessary for data acquisition, ship strike is unlikely to occur during the geophysical and geotechnical surveys. Marine mammals would be able to easily avoid the survey vessel due to the slow vessel speed. Further, Statoil would implement measures (e.g., protected species monitoring, vessel speed restrictions and separation distances; see Proposed Mitigation Measures) set forth in the BOEM lease to reduce the risk of a vessel strike to marine mammal species in the survey area.

    Marine Mammal Habitat

    There are no feeding areas, rookeries or mating grounds known to be biologically important to marine mammals within the proposed project area. The area is part of an important migratory area for North Atlantic right whales; this important migratory area is comprised of the waters of the continental shelf offshore the East Coast of the U.S. and extends from Florida through Massachusetts. Given the limited spatial extent of the proposed survey and the large spatial extent of the migratory area, we do not expect North Atlantic right whale migration to be negatively impacted by the proposed survey. There is no designated critical habitat for any ESA-listed marine mammals in the proposed survey area. NMFS' regulations at 50 CFR part 224.105 designated the nearshore waters of the Mid-Atlantic Bight as the Mid-Atlantic U.S. Seasonal Management Area (SMA) for right whales in 2008. Mandatory vessel speed restrictions (less than 10 kn) are in place in that SMA from November 1 through April 30 to reduce the threat of collisions between ships and right whales around their migratory route and calving grounds.

    Bottom disturbance associated with the HRG survey activities may include grab sampling to validate the seabed classification obtained from the multibeam echosounder/sidescan sonar data. This will typically be accomplished using a Mini-Harmon Grab with 0.1 m2 sample area or the slightly larger Harmon Grab with a 0.2 m2 sample area. The HRG survey equipment will not contact the seafloor and does not represent a source of pollution. We are not aware of any available literature on impacts to marine mammal prey from HRG survey equipment. However, as the HRG survey equipment introduces noise to the marine environment, there is the potential for it to result in avoidance of the area around the HRG survey activities on the part of marine mammal prey. Any avoidance of the area on the part of marine mammal prey would be expected to be short term and temporary.

    Because of the temporary nature of the disturbance, the availability of similar habitat and resources (e.g., prey species) in the surrounding area, and the lack of important or unique marine mammal habitat, the impacts to marine mammals and the food sources that they utilize are not expected to cause significant or long-term consequences for individual marine mammals or their populations. Impacts on marine mammal habitat from the proposed activities will be temporary, insignificant, and discountable.

    Estimated Take

    This section provides an estimate of the number of incidental takes proposed for authorization through this IHA, which will inform both NMFS' consideration of “small numbers” and the negligible impact determination.

    Harassment is the only type of take expected to result from these activities. Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).

    Authorized takes would be by Level B harassment, as use of the HRG equipment has the potential to result in disruption of behavioral patterns for individual marine mammals. NMFS has determined take by Level A harassment is not an expected outcome of the proposed activity and thus we do not propose to authorize the take of any marine mammals by Level A harassment. This is discussed in greater detail below. As described previously, no mortality or serious injury is anticipated or proposed to be authorized for this activity. Below we describe how the take is estimated for this project.

    Described in the most basic way, we estimate take by considering: (1) Acoustic thresholds above which NMFS believes the best available science indicates marine mammals will be behaviorally harassed or incur some degree of permanent hearing impairment; (2) the area or volume of water that will be ensonified above these levels in a day; (3) the density or occurrence of marine mammals within these ensonified areas; and, (4) and the number of days of activities. Below, we describe these components in more detail and present the proposed take estimate.

    Acoustic Thresholds

    NMFS uses acoustic thresholds that identify the received level of underwater sound above which exposed marine mammals would be reasonably expected to be behaviorally harassed (equated to Level B harassment) or to incur PTS of some degree (equated to Level A harassment).

    Level B harassment—Though significantly driven by received level, the onset of behavioral disturbance from anthropogenic noise exposure is also informed to varying degrees by other factors related to the sound source (e.g., frequency, predictability, duty cycle); the environment (e.g., bathymetry); and the receiving animals (hearing, motivation, experience, demography, behavioral context); therefore can be difficult to predict (Southall et al., 2007, Ellison et al., 2011). NMFS uses a generalized acoustic threshold based on received level to estimate the onset of Level B (behavioral) harassment. NMFS predicts that marine mammals may be behaviorally harassed when exposed to underwater anthropogenic noise above received levels 160 dB re 1 μPa (rms) for non-explosive impulsive (e.g., seismic HRG equipment) or intermittent (e.g., scientific sonar) sources. Statoil's proposed activity includes the use of impulsive sources. Therefore, the 160 dB re 1 μPa (rms) criteria is applicable for analysis of Level B harassment.

    Level A harassment—NMFS' Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing (NMFS 2016) identifies dual criteria to assess auditory injury (Level A harassment) to five different marine mammal groups (based on hearing sensitivity) as a result of exposure to noise from two different types of sources (impulsive or non-impulsive). The Technical Guidance identifies the received levels, or thresholds, above which individual marine mammals are predicted to experience changes in their hearing sensitivity for all underwater anthropogenic sound sources, reflects the best available science, and better predicts the potential for auditory injury than does NMFS' historical criteria.

    These thresholds were developed by compiling and synthesizing the best available science and soliciting input multiple times from both the public and peer reviewers to inform the final product, and are provided in Table 3 below. The references, analysis, and methodology used in the development of the thresholds are described in NMFS 2016 Technical Guidance, which may be accessed at: www.nmfs.noaa.gov/pr/acoustics/guidelines.htm. As described above, Statoil's proposed activity includes the use of intermittent and impulsive sources

    Table 3—Thresholds Identifying the Onset of Permanent Threshold Shift in Marine Mammals Hearing group PTS onset thresholds Impulsive * Non-impulsive Low-Frequency (LF) Cetaceans L pk,flat: 219 dB; L E, LF,24h: 183 dB L E, LF,24h: 199 dB Mid-Frequency (MF) Cetaceans L pk,flat; 230 dB; L E, MF,24h: 185 dB L E, MF,24h: 198 dB High-Frequency (HF) Cetaceans L pk,flat; 202 dB; L E, HF,24h: 155 dB L E, HF,24h: 173 dB Phocid Pinnipeds (PW) (Underwater) L pk,flat; 218 dB; L E, PW,24h: 185 dB L E, PW,24h: 201 dB Otariid Pinnipeds (OW) (Underwater) L pk,flat; 232 dB; L E, OW,24h: 203 dB L E, OW,24h: 219 dB Note: * Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for calculating PTS onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level thresholds associated with impulsive sounds, these thresholds should also be considered. Note: Peak sound pressure (Lpk) has a reference value of 1 μPa, and cumulative sound exposure level (LE) has a reference value of 1μPa2s. In this Table, thresholds are abbreviated to reflect American National Standards Institute standards (ANSI 2013). However, peak sound pressure is defined by ANSI as incorporating frequency weighting, which is not the intent for this Technical Guidance. Hence, the subscript “flat” is being included to indicate peak sound pressure should be flat weighted or unweighted within the generalized hearing range. The subscript associated with cumulative sound exposure level thresholds indicates the designated marine mammal auditory weighting function (LF, MF, and HF cetaceans, and PW and OW pinnipeds) and that the recommended accumulation period is 24 hours. The cumulative sound exposure level thresholds could be exceeded in a multitude of ways (i.e., varying exposure levels and durations, duty cycle). When possible, it is valuable for action proponents to indicate the conditions under which these acoustic thresholds will be exceeded. Ensonified Area

    Here, we describe operational and environmental parameters of the activity that will feed into estimating the area ensonified above the acoustic thresholds.

    The proposed survey would entail the use of HRG survey equipment. The distance to the isopleth corresponding to the threshold for Level B harassment was calculated for all HRG survey equipment with the potential to result in harassment of marine mammals (i.e., the USBL and the sub-bottom profilers; Table 1) based on source characteristics as described in Crocker and Fratantonio (2016) using the practical transmission loss (TL) equation: TL = 15log10 r. Of the HRG survey equipment planned for use that has the potential to result in harassment of marine mammals, acoustic modeling indicated the Sig ELC 820 Sparker would be expected to produce sound that would propagate the furthest in the water (Table 4); therefore, for the purposes of the take calculation, it was assumed the Sig ELC 820 Sparker would be active during the entirety of the survey. Thus the distance to the isopleth corresponding to the threshold for Level B harassment for the Sig ELC 820 Sparker (1,166 m; Table 4) was used as the basis of the Level B take calculation for all marine mammals.

    Table 4—Predicted Radial Distances (m) From HRG Sources to Isopleths Corresponding to Level B Harassment Threshold HRG system HRG survey equipment Modeled
  • distance to
  • threshold
  • (160 dB re 1 μPa)
  • Subsea Positioning/USBL Sonardyne Ranger 2 USBL 74 Shallow penetration sub-bottom profiler EdgeTech 512i 18 Medium penetration sub-bottom profiler SIG ELC 820 Sparker 1,166

    Predicted distances to Level A harassment isopleths, which vary based on marine mammal functional hearing groups (Table 5), were also calculated by Statoil. The updated acoustic thresholds for impulsive sounds (such as HRG survey equipment) contained in the Technical Guidance (NMFS, 2016) were presented as dual metric acoustic thresholds using both SELcum and peak sound pressure level metrics. As dual metrics, NMFS considers onset of PTS (Level A harassment) to have occurred when either one of the two metrics is exceeded (i.e., metric resulting in the largest isopleth). The SELcum metric considers both level and duration of exposure, as well as auditory weighting functions by marine mammal hearing group. In recognition of the fact that calculating Level A harassment ensonified areas could be more technically challenging to predict due to the duration component and the use of weighting functions in the new SELcum thresholds, NMFS developed an optional User Spreadsheet that includes tools to help predict a simple isopleth that can be used in conjunction with marine mammal density or occurrence to facilitate the estimation of take numbers. Statoil used the NMFS optional User Spreadsheet to calculate distances to Level A harassment isopleths based on SELcum (shown in Appendix A of the IHA application) and used the practical spreading loss model (similar to the method used to calculate Level B isopleths as described above) to calculate distances to Level A harassment isopleths based on peak pressure. Modeled distances to isopleths corresponding to Level A harassment thresholds for the Sig ELC 820 Sparker are shown in Table 5.

    Table 5—Modeled Radial Distances (m) to Isopleths Corresponding to Level A Harassment Thresholds Functional hearing group
  • (Level A harassment thresholds)
  • SELcum 1 Peak SPLflat
    Low frequency cetaceans (L pk,flat: 219 dB; L E,LF,24h: 183 dB) 9.8 n/a Mid frequency cetaceans (L pk,flat: 230 dB; L E,MF,24h: 185 dB) 0 n/a High frequency cetaceans (L pk,flat: 202 dB; L E,HF,24h: 155 dB) 3.6 7.3 Phocid Pinnipeds (Underwater)(L pk,flat: 218 dB; L E,HF,24h: 185 dB) 2.6 n/a 1 Distances to isopleths based on SELcum were calculated in the NMFS optional User Spreadsheet based on the following inputs: Source level of 206 dB rms, source velocity of 2.06 meters per second, pulse duration of 0.008 seconds, repetition rate of 0.25 seconds, and weighting factor adjustment of 1.4 kHz. Isopleths shown for SELcum are different than those shown in the IHA application as one of the inputs used by the applicant was incorrect which resulted in outputs that were not accurate: The applicant entered an incorrect repetition rate of 4 seconds rather than the correct repetition rate of 0.25 seconds. NMFS therefore used the NMFS optional User Spreadsheet to calculate isopleths for SELcum for the Sig ELC 820 Sparker using the correct repetition rate.

    In this case, due to the very small estimated distances to Level A harassment thresholds for all marine mammal functional hearing groups, based on both SELcum and peak SPL (Table 5), and in consideration of the proposed mitigation measures, including marine mammal exclusion zones that greatly exceed the largest modeled isopleths to Level A harassment thresholds (see the Proposed Mitigation section for more detail) NMFS has determined that the likelihood of Level A take of marine mammals occurring as a result of the proposed survey is so low as to be discountable.

    We note that because of some of the assumptions included in the methods used, isopleths produced may be overestimates to some degree. The acoustic sources proposed for use in Statoil's survey do not radiate sound equally in all directions but were designed instead to focus acoustic energy directly toward the sea floor. Therefore, the acoustic energy produced by these sources is not received equally in all directions around the source but is instead concentrated along some narrower plane depending on the beamwidth of the source. However, the calculated distances to isopleths do not account for this directionality of the sound source and are therefore conservative. For mobile sources, such as the proposed survey, the User Spreadsheet predicts the closest distance at which a stationary animal would not incur PTS if the sound source traveled by the animal in a straight line at a constant speed.

    Marine Mammal Occurrence

    In this section we provide the information about the presence, density, or group dynamics of marine mammals that will inform the take calculations.

    The best available scientific information was considered in conducting marine mammal exposure estimates (the basis for estimating take). For cetacean species, densities calculated by Roberts et al. (2016) were used. The density data presented by Roberts et al. (2016) incorporates aerial and shipboard line-transect survey data from NMFS and from other organizations collected over the period 1992-2014. Roberts et al. (2016) modeled density from 8 physiographic and 16 dynamic oceanographic and biological covariates, and controlled for the influence of sea state, group size, availability bias, and perception bias on the probability of making a sighting. In general, NMFS considers the models produced by Roberts et al. (2016) to be the best available source of data regarding cetacean density in the Atlantic Ocean. More information, including the model results and supplementary information for each model, is available online at: seamap.env.duke.edu/models/Duke-EC-GOM-2015/.

    For the purposes of the take calculations, density data from Roberts et al. (2016) were mapped within the boundary of the survey area for each survey segment (i.e., the Lease Area survey segment and the cable route area survey segment; See Figure 1 in the IHA application) using a geographic information system. Monthly density data for all cetacean species potentially taken by the proposed survey was available via Roberts et al. (2016). Monthly mean density within the survey area, as provided in Roberts et al. (2016), were averaged by season (i.e., Winter (December, January, February), Spring (March, April, May), Summer (June, July, August), Fall (September, October, November)) to provide seasonal density estimates. For the Lease Area survey segment, the highest average seasonal density as reported by Roberts et al. (2016) was used based on the planned survey dates of March through July. For the cable route area survey segment, the average spring seasonal densities within the maximum survey area were used, given the planned start date and duration of the survey within the cable route area.

    Systematic, offshore, at-sea survey data for pinnipeds are more limited than those for cetaceans. The best available information concerning pinniped densities in the proposed survey area is the U.S. Navy's Navy Operating Area (OPAREA) Density Estimates (NODEs) (DoN, 2007). These density models utilized vessel-based and aerial survey data collected by NMFS from 1998-2005 during broad-scale abundance studies. Modeling methodology is detailed in DoN (2007). The NODEs density estimates do not include density data for gray seals. For the purposes of this IHA, gray seal density in the project area was assumed to be the same as harbor seal density. Mid-Atlantic OPAREA Density Estimates (DoN, 2007) as reported for the spring and summer season were used to estimate pinniped densities for the purposes of the take calculations.

    Take Calculation and Estimation

    Here we describe how the information provided above is brought together to produce a quantitative take estimate.

    In order to estimate the number of marine mammals predicted to be exposed to sound levels that would result in harassment, radial distances to predicted isopleths corresponding to harassment thresholds are calculated, as described above. Those distances are then used to calculate the area(s) around the HRG survey equipment predicted to be ensonified to sound levels that exceed harassment thresholds. The area estimated to be ensonified to relevant thresholds in a single day of the survey is then calculated, based on areas predicted to be ensonified around the HRG survey equipment and estimated trackline distance traveled per day by the survey vessel. The estimated daily vessel track line distance was determined using the estimated average speed of the vessel (4 kn) multiplied by 24 (to account for the 24 hour operational period of the survey). Using the maximum distance to the Level B harassment threshold of 1,166 m (Table 4) and estimated daily track line distance of approximately 177.8 km (110.5 mi), it was estimated that an area of 418.9 km2 (161.7 mi2) per day would be ensonified to the Level B harassment threshold (Table 6).

    Table 6—Estimated Track Line Distance per Day (km) and Area (km2) Estimated to be Ensonified to Level B Harassment Threshold per Day Estimated track line distance per day
  • (km)
  • Estimated area ensonified to Level B
  • harassment threshold per day (km2)
  • 177.8 418.9

    The number of marine mammals expected to be incidentally taken per day is then calculated by estimating the number of each species predicted to occur within the daily ensonified area, using estimated marine mammal densities as described above. In this case, estimated marine mammal density values varied between the Lease Area and cable route corridor survey areas, therefore the estimated number of each species taken per survey day was calculated separately for the Lease Area survey area and cable route corridor survey area. Estimated numbers of each species taken per day are then multiplied by the number of survey days to generate an estimate of the total number of each species expected to be taken over the duration of the survey. In this case, as the estimated number of each species taken per day varied depending on survey area (Lease Area and cable route corridor), the number of each species taken per day in each respective survey area was multiplied by the number of survey days anticipated in each survey area (i.e., 123 survey days in the Lease Area portion of the survey and 19 survey days in the cable route corridor portion of the survey) to get a total number of takes per species in each respective survey area. Total take numbers for each respective survey area (Lease Area and cable route corridor) were then rounded. These numbers were then summed to get a total number of each species expected to be taken over the duration of all surveys (Table 9).

    As described above, due to the very small estimated distances to Level A harassment thresholds (based on both SELcum and peak SPL; Table 5), and in consideration of the proposed mitigation measures, the likelihood of the proposed survey resulting in take in the form of Level A harassment is considered so low as to be discountable, therefore we do not propose to authorize take of any marine mammals by Level A harassment. Proposed take numbers are shown in Tables 7, 8 and 9. Take numbers proposed for authorization (Tables 7, 8 and 9) are slightly different than those requested in the IHA application (Table 7 in the IHA application) due to slight differences in take calculation methods.

    Table 7—Numbers of Potential Incidental Take of Marine Mammals Proposed for Authorization in Cable Route Corridor Portion of Survey Species Density
  • (#/1,000 km2)
  • Proposed
  • Level A
  • takes
  • Proposed
  • Level B
  • takes
  • Total
  • proposed
  • takes
  • North Atlantic right whale 0.04 0 3 3 Humpback whale 0.02 0 2 2 Fin whale 0.1 0 8 8 Sperm whale 0.01 0 1 1 Minke whale 0.03 0 2 2 Bottlenose dolphin 9.65 0 768 768 Short-beaked common dolphin 1.42 0 113 113 Atlantic white-sided dolphin 0.32 0 25 25 Harbor porpoise 1.91 0 152 152 Harbor seal 4.87 0 388 388 Gray seal 4.87 0 388 388
    Table 8—Numbers of Potential Incidental Take of Marine Mammals Proposed for Authorization in Lease Area Portion of Survey Species Density
  • (#/1,000 km2)
  • Proposed
  • Level A
  • takes
  • Proposed
  • Level B
  • takes
  • Total
  • proposed
  • takes
  • North Atlantic right whale 0.03 0 15 15 Humpback whale 0.04 0 21 21 Fin whale 0.17 0 88 88 Sperm whale 0.01 0 5 5 Minke whale 0.07 0 36 36 Bottlenose dolphin 1.53 0 788 788 Short-beaked common dolphin 3.06 0 1,577 1,577 Atlantic white-sided dolphin 0.78 0 402 402 Harbor porpoise 4.09 0 2,107 2,107 Harbor seal 4.87 0 2,509 2,509 Gray seal 4.87 0 2,509 2,509
    Table 9—Total Numbers of Potential Incidental Take of Marine Mammals Proposed for Authorization and Proposed Takes as a Percentage of Population Species Proposed
  • Level A
  • takes
  • Proposed
  • Level B
  • takes
  • Total
  • proposed
  • takes
  • Total
  • proposed
  • takes as a
  • percentage of
  • population
  • North Atlantic right whale 0 18 18 4.1 Humpback whale 0 23 23 2.8 Fin whale 0 96 96 5.9 Sperm whale 0 6 6 0.3 Minke whale 0 38 38 1.5 Bottlenose dolphin 0 1,556 1,556 2.0 Short-beaked common dolphin 0 1,690 1,690 2.4 Atlantic white-sided dolphin 0 427 427 0.9 Harbor porpoise 0 2,259 2,259 2.8 Harbor seal 0 2,897 2,897 3.8 Gray seal 0 2,897 2,897 0.6
    Proposed Mitigation

    In order to issue an IHA under Section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for certain subsistence uses (latter not applicable for this action). NMFS regulations require applicants for incidental take authorizations to include information about the availability and feasibility (economic and technological) of equipment, methods, and manner of conducting such activity or other means of effecting the least practicable adverse impact upon the affected species or stocks and their habitat (50 CFR 216.104(a)(11)).

    In evaluating how mitigation may or may not be appropriate to ensure the least practicable adverse impact on species or stocks and their habitat, as well as subsistence uses where applicable, we carefully consider two primary factors:

    (1) The manner in which, and the degree to which, the successful implementation of the measure(s) is expected to reduce impacts to marine mammals, marine mammal species or stocks, and their habitat. This considers the nature of the potential adverse impact being mitigated (likelihood, scope, range). It further considers the likelihood that the measure will be effective if implemented (probability of accomplishing the mitigating result if implemented as planned) the likelihood of effective implementation (probability implemented as planned), and;

    (2) The practicability of the measures for applicant implementation, which may consider such things as relative cost and impact on operations.

    Proposed Mitigation Measures

    With NMFS' input during the application process, and as per the BOEM Lease, Statoil is proposing the following mitigation measures during the proposed marine site characterization surveys.

    Marine Mammal Exclusion and Watch Zones

    As required in the BOEM lease, marine mammal exclusion zones (EZ) will be established around the HRG survey equipment and monitored by protected species observers (PSO) during HRG surveys as follows:

    • 50 m EZ for pinnipeds and delphinids (except harbor porpoises);

    • 100 m EZ for large whales including sperm whales and mysticetes (except North Atlantic right whales) and harbor porpoises;

    • 500 m EZ for North Atlantic right whales.

    In addition, PSOs will visually monitor to the extent of the Level B zone (1,166 m), or as far as possible if the extent of the Level B zone is not fully visible.

    Statoil intends to submit a sound source verification report showing sound levels associated with HRG survey equipment. If results of the sound source verification report indicate that actual distances to isopleths corresponding to harassment thresholds are larger than the EZs and/or Level B monitoring zones, NMFS may modify the zone(s) accordingly. If results of source verification indicate that actual distances to isopleths corresponding to harassment thresholds are less than the EZs and/or Level B monitoring zones, Statoil has indicated an intention to request modification of the zone(s), as appropriate. NMFS would review any such request and may modify the zone(s) depending on review of the report on source verification. Any such modification may be superseded by EZs required by BOEM.

    Visual Monitoring

    As per the BOEM lease, visual and acoustic monitoring of the established exclusion and monitoring zones will be performed by qualified and NMFS-approved PSOs. It will be the responsibility of the Lead PSO on duty to communicate the presence of marine mammals as well as to communicate and enforce the action(s) that are necessary to ensure mitigation and monitoring requirements are implemented as appropriate. PSOs will be equipped with binoculars and have the ability to estimate distances to marine mammals located in proximity to the vessel and/or exclusion zone using range finders. Reticulated binoculars will also be available to PSOs for use as appropriate based on conditions and visibility to support the siting and monitoring of marine species. Digital single-lens reflex camera equipment will be used to record sightings and verify species identification. During surveys conducted at night, night-vision equipment and infrared technology will be available for PSO use, and passive acoustic monitoring (PAM; described below) will be used.

    Pre-Clearance of the Exclusion Zone

    For all HRG survey activities, Statoil would implement a 30-minute pre-clearance period of the relevant EZs prior to the initiation of HRG survey equipment (as required by BOEM). During this period the EZs would be monitored by PSOs, using the appropriate visual technology for a 30-minute period. HRG survey equipment would not be initiated if marine mammals are observed within or approaching the relevant EZs during this pre-clearance period. If a marine mammal were observed within or approaching the relevant EZ during the pre-clearance period, ramp-up would not begin until the animal(s) has been observed exiting the EZ or until an additional time period has elapsed with no further sighting of the animal (15 minutes for small delphinoid cetaceans and pinnipeds and 30 minutes for all other species). This pre-clearance requirement would include small delphinoids that approach the vessel (e.g., bow ride). PSOs would also continue to monitor the zone for 30 minutes after survey equipment is shut down or survey activity has concluded.

    Passive Acoustic Monitoring

    As required in the BOEM lease, PAM would be required during HRG surveys conducted at night. In addition, PAM systems would be employed during daylight hours as needed to support system calibration and PSO and PAM team coordination, as well as in support of efforts to evaluate the effectiveness of the various mitigation techniques (i.e., visual observations during day and night, compared to the PAM detections/operations). PAM operators will also be on call as necessary during daytime operations should visual observations become impaired. BOEM's lease stipulations require the use of PAM during nighttime operations. However, these requirements do not require that any mitigation action be taken upon acoustic detection of marine mammals. Given the range of species that could occur in the survey area, the PAM system will consist of an array of hydrophones with both broadband (sampling mid-range frequencies of 2 kHz to 200 kHz) and at least one low-frequency hydrophone (sampling range frequencies of 75 Hz to 30 kHz). The PAM operator would monitor the hydrophone signals in real time both aurally (using headphones) and visually (via the monitor screen displays). PAM operator would communicate detections to the Lead PSO on duty who will ensure the implementation of the appropriate mitigation procedures. A mitigation and monitoring communications flow diagram has been included as Appendix C of the IHA application.

    Ramp-Up of Survey Equipment

    As required in the BOEM lease, where technically feasible, a ramp-up procedure would be used for HRG survey equipment capable of adjusting energy levels at the start or re-start of HRG survey activities. The ramp-up procedure would be used at the beginning of HRG survey activities in order to provide additional protection to marine mammals near the survey area by allowing them to vacate the area prior to the commencement of survey equipment use at full energy. A ramp-up would begin with the power of the smallest acoustic equipment at its lowest practical power output appropriate for the survey. When technically feasible the power would then be gradually turned up and other acoustic sources added in way such that the source level would increase gradually.

    Shutdown Procedures

    As required in the BOEM lease, if a marine mammal is observed within or approaching the relevant EZ (as described above) an immediate shutdown of the survey equipment is required. Subsequent restart of the survey equipment may only occur after the animal(s) has either been observed exiting the relevant EZ or until an additional time period has elapsed with no further sighting of the animal (15 minutes for delphinoid cetaceans and pinnipeds and 30 minutes for all other species). HRG survey equipment may be allowed to continue operating if small delphinids voluntarily approach the vessel (e.g., to bow ride) when HRG survey equipment is operating.

    As required in the BOEM lease, if the HRG equipment shuts down for reasons other than mitigation (i.e., mechanical or electronic failure) resulting in the cessation of the survey equipment for a period greater than 20 minutes, a 30 minute pre-clearance period (as described above) would precede the restart of the HRG survey equipment. If the pause is less than less than 20 minutes, the equipment may be restarted as soon as practicable at its full operational level only if visual surveys were continued diligently throughout the silent period and the EZs remained clear of marine mammals during that entire period. If visual surveys were not continued diligently during the pause of 20 minutes or less, a 30-minute pre-clearance period (as described above) would precede the re-start of the HRG survey equipment. Following a shutdown, HRG survey equipment may be restarted following pre-clearance of the zones as described above.

    Vessel Strike Avoidance

    Statoil will ensure that vessel operators and crew maintain a vigilant watch for cetaceans and pinnipeds by slowing down or stopping the vessel to avoid striking marine mammals. Survey vessel crew members responsible for navigation duties will receive site-specific training on marine mammal sighting/reporting and vessel strike avoidance measures. Vessel strike avoidance measures will include, but are not limited to, the following, as required in the BOEM lease, except under circumstances when complying with these requirements would put the safety of the vessel or crew at risk:

    • All vessel operators and crew will maintain vigilant watch for cetaceans and pinnipeds, and slow down or stop their vessel to avoid striking these protected species;

    • All vessel operators will comply with 10 knot (18.5 km/hr) or less speed restrictions in any SMA per NOAA guidance. This applies to all vessels operating at any time of year;

    • All vessel operators will reduce vessel speed to 10 knots (18.5 km/hr) or less when any large whale, any mother/calf pairs, pods, or large assemblages of non-delphinoid cetaceans are observed near (within 100 m [330 ft]) an underway vessel;

    • All survey vessels will maintain a separation distance of 500 m (1640 ft) or greater from any sighted North Atlantic right whale;

    • If underway, vessels must steer a course away from any sighted North Atlantic right whale at 10 knots (18.5 km/hr) or less until the 500 m (1640 ft) minimum separation distance has been established. If a North Atlantic right whale is sighted in a vessel's path, or within 100 m (330 ft) to an underway vessel, the underway vessel must reduce speed and shift the engine to neutral. Engines will not be engaged until the North Atlantic right whale has moved outside of the vessel's path and beyond 100 m. If stationary, the vessel must not engage engines until the North Atlantic right whale has moved beyond 100 m;

    • All vessels will maintain a separation distance of 100 m (330 ft) or greater from any sighted non-delphinoid cetacean. If sighted, the vessel underway must reduce speed and shift the engine to neutral, and must not engage the engines until the non-delphinoid cetacean has moved outside of the vessel's path and beyond 100 m. If a survey vessel is stationary, the vessel will not engage engines until the non-delphinoid cetacean has moved out of the vessel's path and beyond 100 m;

    • All vessels will maintain a separation distance of 50 m (164 ft) or greater from any sighted delphinoid cetacean. Any vessel underway remain parallel to a sighted delphinoid cetacean's course whenever possible, and avoid excessive speed or abrupt changes in direction. Any vessel underway reduces vessel speed to 10 knots (18.5 km/hr) or less when pods (including mother/calf pairs) or large assemblages of delphinoid cetaceans are observed. Vessels may not adjust course and speed until the delphinoid cetaceans have moved beyond 50 m and/or the abeam of the underway vessel;

    • All vessels underway will not divert or alter course in order to approach any whale, delphinoid cetacean, or pinniped. Any vessel underway will avoid excessive speed or abrupt changes in direction to avoid injury to the sighted cetacean or pinniped; and

    • All vessels will maintain a separation distance of 50 m (164 ft) or greater from any sighted pinniped.

    The training program would be provided to NMFS for review and approval prior to the start of surveys. Confirmation of the training and understanding of the requirements will be documented on a training course log sheet. Signing the log sheet will certify that the crew members understand and will comply with the necessary requirements throughout the survey event.

    Seasonal Operating Requirements

    Between watch shifts, members of the monitoring team will consult NMFS' North Atlantic right whale reporting systems for the presence of North Atlantic right whales throughout survey operations. However, the proposed survey activities will occur outside of the SMA located off the coasts of New Jersey and New York. Members of the monitoring team will monitor the NMFS North Atlantic right whale reporting systems for the establishment of a Dynamic Management Area (DMA). If NMFS should establish a DMA in the survey area, within 24 hours of the establishment of the DMA Statoil will work with NMFS to shut down and/or alter the survey activities to avoid the DMA.

    The proposed mitigation measures are designed to avoid the already low potential for injury in addition to some Level B harassment, and to minimize the potential for vessel strikes. There are no known marine mammal feeding areas, rookeries, or mating grounds in the survey area that would otherwise potentially warrant increased mitigation measures for marine mammals or their habitat (or both). The proposed survey would occur in an area that has been identified as a biologically important area for migration for North Atlantic right whales. However, given the small spatial extent of the survey area relative to the substantially larger spatial extent of the right whale migratory area, the survey is not expected to appreciably reduce migratory habitat nor to negatively impact the migration of North Atlantic right whales, thus mitigation to address the proposed survey's occurrence in North Atlantic right whale migratory habitat is not warranted. Further, we believe the proposed mitigation measures are practicable for the applicant to implement.

    Based on our evaluation of the applicant's proposed measures, NMFS has preliminarily determined that the proposed mitigation measures provide the means of effecting the least practicable impact on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.

    Proposed Monitoring and Reporting

    In order to issue an IHA for an activity, Section 101(a)(5)(D) of the MMPA states that NMFS must set forth, requirements pertaining to the monitoring and reporting of such taking. The MMPA implementing regulations at 50 CFR 216.104(a)(13) indicate that requests for authorizations must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the proposed action area. Effective reporting is critical both to compliance as well as ensuring that the most value is obtained from the required monitoring.

    Monitoring and reporting requirements prescribed by NMFS should contribute to improved understanding of one or more of the following:

    • Occurrence of marine mammal species or stocks in the area in which take is anticipated (e.g., presence, abundance, distribution, density);

    • Nature, scope, or context of likely marine mammal exposure to potential stressors/impacts (individual or cumulative, acute or chronic), through better understanding of: (1) Action or environment (e.g., source characterization, propagation, ambient noise); (2) affected species (e.g., life history, dive patterns); (3) co-occurrence of marine mammal species with the action; or (4) biological or behavioral context of exposure (e.g., age, calving or feeding areas);

    • Individual marine mammal responses (behavioral or physiological) to acoustic stressors (acute, chronic, or cumulative), other stressors, or cumulative impacts from multiple stressors;

    • How anticipated responses to stressors impact either: (1) Long-term fitness and survival of individual marine mammals; or (2) populations, species, or stocks;

    • Effects on marine mammal habitat (e.g., marine mammal prey species, acoustic habitat, or other important physical components of marine mammal habitat); and

    • Mitigation and monitoring effectiveness.

    Proposed Monitoring Measures

    As described above, visual monitoring of the EZs and monitoring zone will be performed by qualified and NMFS-approved PSOs. Observer qualifications will include direct field experience on a marine mammal observation vessel and/or aerial surveys and completion of a PSO and/or PAM training program, as appropriate. As proposed by the applicant and required by BOEM, an observer team comprising a minimum of four NMFS-approved PSOs and a minimum of two certified PAM operator(s), operating in shifts, will be employed by Statoil during the proposed surveys. PSOs and PAM operators will work in shifts such that no one monitor will work more than 4 consecutive hours without a 2 hour break or longer than 12 hours during any 24-hour period. During daylight hours the PSOs will rotate in shifts of one on and three off, while during nighttime operations PSOs will work in pairs (per BOEM's requirements?). The PAM operators will also be on call as necessary during daytime operations should visual observations become impaired. Each PSO will monitor 360 degrees of the field of vision. Statoil will provide resumes of all proposed PSOs and PAM operators (including alternates) to NMFS for review and approval at least 45 days prior to the start of survey operations.

    Also as described above, PSOs will be equipped with binoculars and have the ability to estimate distances to marine mammals located in proximity to the vessel and/or exclusion zone using range finders. Reticulated binoculars will also be available to PSOs for use as appropriate based on conditions and visibility to support the siting and monitoring of marine species. Digital single-lens reflex camera equipment will be used to record sightings and verify species identification. During night operations, PAM, night-vision equipment, and infrared technology will be used to increase the ability to detect marine mammals. Position data will be recorded using hand-held or vessel global positioning system (GPS) units for each sighting. Observations will take place from the highest available vantage point on the survey vessel. General 360-degree scanning will occur during the monitoring periods, and target scanning by the PSO will occur when alerted of a marine mammal presence.

    Data on all PAM/PSO observations will be recorded based on standard PSO collection requirements. This will include dates and locations of survey operations; time of observation, location and weather; details of the sightings (e.g., species, age classification [if known], numbers, behavior); and details of any observed “taking” (behavioral disturbances). The data sheet will be provided to NMFS for review and approval prior to the start of survey activities. In addition, prior to initiation of survey work, all crew members will undergo environmental training, a component of which will focus on the procedures for sighting and protection of marine mammals. A briefing will also be conducted between the survey supervisors and crews, the PSOs, and Statoil. The purpose of the briefing will be to establish responsibilities of each party, define the chains of command, discuss communication procedures, provide an overview of monitoring purposes, and review operational procedures.

    Acoustic Field Verification—As described above, field verification of sound levels associated with survey equipment will be conducted. Results of the field verification may be used to request modification of the EZs and monitoring zones. The details of the applicant's plan for field verification of sound levels are provided as Appendix B to the IHA application.

    Proposed Reporting Measures

    Statoil will provide the following reports as necessary during survey activities:

    • The Applicant will contact NMFS within 24 hours of the commencement of survey activities and again within 24 hours of the completion of the activity.

    Notification of Injured or Dead Marine Mammals—In the unanticipated event that the specified HRG and geotechnical activities lead to an injury of a marine mammal (Level A harassment) or mortality (e.g., ship-strike, gear interaction, and/or entanglement), Statoil would immediately cease the specified activities and report the incident to the Chief of the Permits and Conservation Division, Office of Protected Resources and the NMFS Greater Atlantic Stranding Coordinator. The report would include the following information:

    • Time, date, and location (latitude/longitude) of the incident;

    • Name and type of vessel involved;

    • Vessel's speed during and leading up to the incident;

    • Description of the incident;

    • Status of all sound source use in the 24 hours preceding the incident;

    • Water depth;

    • Environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, and visibility);

    • Description of all marine mammal observations in the 24 hours preceding the incident;

    • Species identification or description of the animal(s) involved;

    • Fate of the animal(s); and

    • Photographs or video footage of the animal(s) (if equipment is available).

    Activities would not resume until NMFS is able to review the circumstances of the event. NMFS would work with Statoil to minimize reoccurrence of such an event in the future. Statoil would not resume activities until notified by NMFS.

    In the event that Statoil discovers an injured or dead marine mammal and determines that the cause of the injury or death is unknown and the death is relatively recent (i.e., in less than a moderate state of decomposition), Statoil would immediately report the incident to the Chief of the Permits and Conservation Division, Office of Protected Resources and the NMFS Greater Atlantic Stranding Coordinator. The report would include the same information identified in the paragraph above. Activities would be able to continue while NMFS reviews the circumstances of the incident. NMFS would work with Statoil to determine if modifications in the activities are appropriate.

    In the event that Statoil discovers an injured or dead marine mammal and determines that the injury or death is not associated with or related to the activities authorized in the IHA (e.g., previously wounded animal, carcass with moderate to advanced decomposition, or scavenger damage), Statoil would report the incident to the Chief of the Permits and Conservation Division, Office of Protected Resources, and the NMFS Greater Atlantic Regional Stranding Coordinator, within 24 hours of the discovery. Statoil would provide photographs or video footage (if available) or other documentation of the stranded animal sighting to NMFS. Statoil may continue its operations under such a case.

    • Within 90 days after completion of survey activities, a final technical report will be provided to NMFS that fully documents the methods and monitoring protocols, summarizes the data recorded during monitoring, estimates the number of marine mammals estimated to have been taken during survey activities, and provides an interpretation of the results and effectiveness of all mitigation and monitoring. Any recommendations made by NMFS must be addressed in the final report prior to acceptance by NMFS.

    Negligible Impact Analysis and Determination

    NMFS has defined negligible impact as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival. A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (i.e., population-level effects). An estimate of the number of takes alone is not enough information on which to base an impact determination. In addition to considering estimates of the number of marine mammals that might be “taken” through harassment, NMFS considers other factors, such as the likely nature of any responses (e.g., intensity, duration), the context of any responses (e.g., critical reproductive time or location, migration), as well as effects on habitat, and the likely effectiveness of the mitigation. We also assess the number, intensity, and context of estimated takes by evaluating this information relative to population status. Consistent with the 1989 preamble for NMFS's implementing regulations (54 FR 40338; September 29, 1989), the impacts from other past and ongoing anthropogenic activities are incorporated into this analysis via their impacts on the environmental baseline (e.g., as reflected in the regulatory status of the species, population size and growth rate where known, ongoing sources of human-caused mortality, or ambient noise levels).

    To avoid repetition, our analysis applies to all the species listed in Table 9, given that NMFS expects the anticipated effects of the proposed survey to be similar in nature.

    NMFS does not anticipate that serious injury or mortality would occur as a result of Statoil's proposed survey, even in the absence of proposed mitigation. Thus the proposed authorization does not authorize any serious injury or mortality. As discussed in the Potential Effects section, non-auditory physical effects and vessel strike are not expected to occur.

    We expect that all potential takes would be in the form of short-term Level B behavioral harassment in the form of temporary avoidance of the area or decreased foraging (if such activity were occurring), reactions that are considered to be of low severity and with no lasting biological consequences (e.g., Southall et al., 2007).

    Potential impacts to marine mammal habitat were discussed previously in this document (see Potential Effects of the Specified Activity on Marine Mammals and their Habitat). Marine mammal habitat may be impacted by elevated sound levels, but these impacts would be temporary. In addition to being temporary and short in overall duration, the acoustic footprint of the proposed survey is small relative to the overall distribution of the animals in the area and their use of the area. Feeding behavior is not likely to be significantly impacted, as no areas of biological significance for marine mammal feeding are known to exist in the survey area. Prey species are mobile and are broadly distributed throughout the project area; therefore, marine mammals that may be temporarily displaced during survey activities are expected to be able to resume foraging once they have moved away from areas with disturbing levels of underwater noise. Because of the temporary nature of the disturbance, the availability of similar habitat and resources in the surrounding area, and the lack of important or unique marine mammal feeding habitat, the impacts to marine mammals and the food sources that they utilize are not expected to cause significant or long-term consequences for individual marine mammals or their populations. In addition, there are no rookeries or mating or calving areas known to be biologically important to marine mammals within the proposed project area. The proposed survey area is within a biologically important migratory area for North Atlantic right whales (effective March-April and November-December) that extends from Massachusetts to Florida (LaBrecque, et al., 2015). Off the coast of New York, this biologically important migratory area extends from the coast to the shelf break. Due to the fact that that the proposed survey is temporary and short in overall duration, and the fact that the spatial acoustic footprint of the proposed survey is very small relative to the spatial extent of the available migratory habitat in the area, right whale migration is not expected to be impacted by the proposed survey.

    The proposed mitigation measures are expected to reduce the number and/or severity of takes by (1) giving animals the opportunity to move away from the sound source before HRG survey equipment reaches full energy; (2) preventing animals from being exposed to sound levels that may otherwise result in injury. Additional vessel strike avoidance requirements will further mitigate potential impacts to marine mammals during vessel transit to and within the survey area.

    NMFS concludes that exposures to marine mammal species and stocks due to Statoil's proposed survey would result in only short-term (temporary and short in duration) effects to individuals exposed. Marine mammals may temporarily avoid the immediate area, but are not expected to permanently abandon the area. Major shifts in habitat use, distribution, or foraging success are not expected. NMFS does not anticipate the proposed take estimates to impact annual rates of recruitment or survival.

    In summary and as described above, the following factors primarily support our preliminary determination that the impacts resulting from this activity are not expected to adversely affect the species or stock through effects on annual rates of recruitment or survival:

    • No mortality, serious injury, or Level A harassment is anticipated or authorized;

    • The anticipated impacts of the proposed activity on marine mammals would be temporary behavioral changes due to avoidance of the area around the survey vessel;

    • The availability of alternate areas of similar habitat value for marine mammals to temporarily vacate the survey area during the proposed survey to avoid exposure to sounds from the activity;

    • The proposed project area does not contain areas of significance for feeding, mating or calving;

    • Effects on species that serve as prey species for marine mammals from the proposed survey are not expected;

    • The proposed mitigation measures, including visual and acoustic monitoring and shutdowns, are expected to minimize potential impacts to marine mammals.

    Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the proposed monitoring and mitigation measures, NMFS preliminarily finds that the total marine mammal take from the proposed activity will have a negligible impact on all affected marine mammal species or stocks.

    Small Numbers

    As noted above, only small numbers of incidental take may be authorized under Section 101(a)(5)(D) of the MMPA for specified activities other than military readiness activities. The MMPA does not define small numbers and so, in practice, where estimated numbers are available, NMFS compares the number of individuals taken to the most appropriate estimation of abundance of the relevant species or stock in our determination of whether an authorization is limited to small numbers of marine mammals. Additionally, other qualitative factors may be considered in the analysis, such as the temporal or spatial scale of the activities.

    The numbers of marine mammals that we propose for authorization to be taken, for all species and stocks, would be considered small relative to the relevant stocks or populations (less than 6 percent of each species and stock). See Table 9. Based on the analysis contained herein of the proposed activity (including the proposed mitigation and monitoring measures) and the anticipated take of marine mammals, NMFS preliminarily finds that small numbers of marine mammals will be taken relative to the population size of the affected species or stocks.

    Unmitigable Adverse Impact Analysis and Determination

    There are no relevant subsistence uses of the affected marine mammal stocks or species implicated by this action. Therefore, NMFS has determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.

    Endangered Species Act

    Section 7(a)(2) of the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.) requires that each Federal agency insure that any action it authorizes, funds, or carries out is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of designated critical habitat. To ensure ESA compliance for the issuance of IHAs, NMFS consults internally, in this case with the NMFS Greater Atlantic Regional Fisheries Office (GARFO), whenever we propose to authorize take for endangered or threatened species.

    The NMFS Office of Protected Resources is proposing to authorize the incidental take of three species of marine mammals which are listed under the ESA: The North Atlantic right, fin, and sperm whale. BOEM consulted with NMFS GARFO under section 7 of the ESA on commercial wind lease issuance and site assessment activities on the Atlantic Outer Continental Shelf in Massachusetts, Rhode Island, New York and New Jersey Wind Energy Areas. NMFS GARFO issued a Biological Opinion concluding that these activities may adversely affect but are not likely to jeopardize the continued existence of the North Atlantic right, fin, and sperm whale. The Biological Opinion can be found online at: www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable. NMFS will conclude the ESA section 7 consultation prior to reaching a determination regarding the proposed issuance of the authorization. If the IHA is issued, the Biological Opinion may be amended to include an incidental take statement for these marine mammal species, as appropriate.

    Proposed Authorization

    As a result of these preliminary determinations, NMFS proposes to issue an IHA to Statoil for conducting marine site assessment surveys offshore New York and along potential submarine cable routes from the date of issuance for a period of one year, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated. This section contains a draft of the IHA itself. The wording contained in this section is proposed for inclusion in the IHA (if issued).

    1. This IHA is valid for a period of one year from the date of issuance.

    2. This IHA is valid only for marine site characterization survey activity, as specified in the IHA application, in the Atlantic Ocean.

    3. General Conditions.

    (a) A copy of this IHA must be in the possession of Statoil Wind U.S. LLC (Statoil), the vessel operator and other relevant personnel, the lead PSO, and any other relevant designees of Statoil operating under the authority of this IHA.

    (b) The species authorized for taking are listed in Table 9. The taking, by Level B harassment only, is limited to the species and numbers listed in Table 9. Any taking of species not listed in Table 9, or exceeding the authorized amounts listed in Table 9, is prohibited and may result in the modification, suspension, or revocation of this IHA.

    (c) The taking by injury, serious injury or death of any species of marine mammal is prohibited and may result in the modification, suspension, or revocation of this IHA.

    (d) Statoil shall ensure that the vessel operator and other relevant vessel personnel are briefed on all responsibilities, communication procedures, marine mammal monitoring protocols, operational procedures, and IHA requirements prior to the start of survey activity, and when relevant new personnel join the survey operations.

    4. Mitigation Requirements—the holder of this Authorization is required to implement the following mitigation measures:

    (a) Statoil shall use at least four (4) NMFS-approved protected species observers (PSOs) during HRG surveys. The PSOs must have no tasks other than to conduct observational effort, record observational data, and communicate with and instruct relevant vessel crew with regard to the presence of marine mammals and mitigation requirements. PSO resumes shall be provided to NMFS for approval prior to commencement of the survey.

    (b) Visual monitoring must begin no less than 30 minutes prior to initiation of survey equipment and must continue until 30 minutes after use of survey equipment ceases.

    (c) Exclusion Zones and Watch Zone—PSOs shall establish and monitor marine mammal Exclusion Zones and Watch Zones. The Watch Zone shall represent the extent of the Level B harassment zone (1,166 m) or, as far as possible if the extent of the Level B zone is not fully visible. The Exclusion Zones are as follows:

    (i) a 50 m Exclusion Zone for pinnipeds and delphinids (except harbor porpoises);

    (ii) a 100 m Exclusion Zone for large whales including sperm whales and mysticetes (except North Atlantic right whales) and harbor porpoises;

    (iii) a 500 m Exclusion Zone for North Atlantic right whales.

    (d) Shutdown requirements—If a marine mammal is observed within, entering, or approaching the relevant Exclusion Zones as described under 4(c) while geophysical survey equipment is operational, the geophysical survey equipment must be immediately shut down.

    (i) Any PSO on duty has the authority to call for shutdown of survey equipment. When there is certainty regarding the need for mitigation action on the basis of visual detection, the relevant PSO(s) must call for such action immediately.

    (ii) When a shutdown is called for by a PSO, the shutdown must occur and any dispute resolved only following shutdown.

    (iii) The shutdown requirement is waived for small delphinoids that approach the vessel (e.g., bow ride).

    (iv) Upon implementation of a shutdown, survey equipment may be reactivated when all marine mammals have been confirmed by visual observation to have exited the relevant Exclusion Zone or an additional time period has elapsed with no further sighting of the animal that triggered the shutdown (15 minutes for small delphinoid cetaceans and pinnipeds and 30 minutes for all other species).

    (v) If geophysical equipment shuts down for reasons other than mitigation (i.e., mechanical or electronic failure) resulting in the cessation of the survey equipment for a period of less than 20 minutes, the equipment may be restarted as soon as practicable if visual surveys were continued diligently throughout the silent period and the relevant Exclusion Zones are confirmed by PSOs to have remained clear of marine mammals during the entire 20 minute period. If visual surveys were not continued diligently during the pause of 20 minutes or less, a 30 minute pre-clearance period shall precede the restart of the geophysical survey equipment as described in 4(e). If the period of shutdown for reasons other than mitigation is greater than 20 minutes, a pre-clearance period shall precede the restart of the geophysical survey equipment as described in 4(e).

    (e) Pre-clearance observation—30 minutes of pre-clearance observation shall be conducted prior to initiation of geophysical survey equipment. geophysical survey equipment shall not be initiated if marine mammals are observed within or approaching the relevant Exclusion Zones as described under 4(d) during the pre-clearance period. If a marine mammal is observed within or approaching the relevant Exclusion Zone during the pre-clearance period, geophysical survey equipment shall not be initiated until the animal(s) is confirmed by visual observation to have exited the relevant Exclusion Zone or until an additional time period has elapsed with no further sighting of the animal (15 minutes for small delphinoid cetaceans and pinnipeds and 30 minutes for all other species).

    (f) Ramp-up—when technically feasible, survey equipment shall be ramped up at the start or re-start of survey activities. Ramp-up will begin with the power of the smallest acoustic equipment at its lowest practical power output appropriate for the survey. When technically feasible the power will then be gradually turned up and other acoustic sources added in way such that the source level would increase gradually.

    (g) Vessel Strike Avoidance—Vessel operator and crew must maintain a vigilant watch for all marine mammals and slow down or stop the vessel or alter course, as appropriate, to avoid striking any marine mammal, unless such action represents a human safety concern. Survey vessel crew members responsible for navigation duties shall receive site-specific training on marine mammal sighting/reporting and vessel strike avoidance measures. Vessel strike avoidance measures shall include the following, except under circumstances when complying with these requirements would put the safety of the vessel or crew at risk:

    (i) The vessel operator and crew shall maintain vigilant watch for cetaceans and pinnipeds, and slow down or stop the vessel to avoid striking marine mammals;

    (ii) The vessel operator will reduce vessel speed to 10 knots (18.5 km/hr) or less when any large whale, any mother/calf pairs, whale or dolphin pods, or larger assemblages of non-delphinoid cetaceans are observed near (within 100 m (330 ft)) an underway vessel;

    (iii) The survey vessel will maintain a separation distance of 500 m (1640 ft) or greater from any sighted North Atlantic right whale;

    (iv) If underway, the vessel must steer a course away from any sighted North Atlantic right whale at 10 knots (18.5 km/hr) or less until the 500 m (1640 ft) minimum separation distance has been established. If a North Atlantic right whale is sighted in a vessel's path, or within 100 m (330 ft) to an underway vessel, the underway vessel must reduce speed and shift the engine to neutral. Engines will not be engaged until the North Atlantic right whale has moved outside of the vessel's path and beyond 100 m. If stationary, the vessel must not engage engines until the North Atlantic right whale has moved beyond 100 m;

    (v) The vessel will maintain a separation distance of 100 m (330 ft) or greater from any sighted non-delphinoid cetacean. If sighted, the vessel underway must reduce speed and shift the engine to neutral, and must not engage the engines until the non-delphinoid cetacean has moved outside of the vessel's path and beyond 100 m. If a survey vessel is stationary, the vessel will not engage engines until the non-delphinoid cetacean has moved out of the vessel's path and beyond 100 m;

    (vi) The vessel will maintain a separation distance of 50 m (164 ft) or greater from any sighted delphinoid cetacean. Any vessel underway remain parallel to a sighted delphinoid cetacean's course whenever possible, and avoid excessive speed or abrupt changes in direction. Any vessel underway reduces vessel speed to 10 knots (18.5 km/hr) or less when pods (including mother/calf pairs) or large assemblages of delphinoid cetaceans are observed. Vessels may not adjust course and speed until the delphinoid cetaceans have moved beyond 50 m and/or the abeam of the underway vessel;

    (vii) All vessels underway will not divert or alter course in order to approach any whale, delphinoid cetacean, or pinniped. Any vessel underway will avoid excessive speed or abrupt changes in direction to avoid injury to the sighted cetacean or pinniped; and

    (viii) All vessels will maintain a separation distance of 50 m (164 ft) or greater from any sighted pinniped.

    (ix) The vessel operator will comply with 10 knot (18.5 km/hr) or less speed restrictions in any Seasonal Management Area per NMFS guidance.

    (x) If NMFS should establish a Dynamic Management Area (DMA) in the area of the survey, within 24 hours of the establishment of the DMA Statoil shall work with NMFS to shut down and/or alter survey activities to avoid the DMA as appropriate.

    5. Monitoring Requirements—The Holder of this Authorization is required to conduct marine mammal visual monitoring and passive acoustic monitoring (PAM) during geophysical survey activity. Monitoring shall be conducted in accordance with the following requirements:

    (a) A minimum of four NMFS-approved PSOs and a minimum of two certified (PAM) operator(s), operating in shifts, shall be employed by Statoil during geophysical surveys.

    (b) Observations shall take place from the highest available vantage point on the survey vessel. General 360-degree scanning shall occur during the monitoring periods, and target scanning by PSOs will occur when alerted of a marine mammal presence.

    (c) PSOs shall be equipped with binoculars and have the ability to estimate distances to marine mammals located in proximity to the vessel and/or Exclusion Zones using range finders. Reticulated binoculars will also be available to PSOs for use as appropriate based on conditions and visibility to support the sighting and monitoring of marine species. Digital single-lens reflex camera equipment will be used to record sightings and verify species identification.

    (d) PAM shall be used during nighttime geophysical survey operations. The PAM system shall consist of an array of hydrophones with both broadband (sampling mid-range frequencies of 2 kHz to 200 kHz) and at least one low-frequency hydrophone (sampling range frequencies of 75 Hz to 30 kHz). PAM operators shall communicate detections or vocalizations to the Lead PSO on duty who shall ensure the implementation of the appropriate mitigation measure.

    (e) During night surveys, night-vision equipment and infrared technology shall be used in addition to PAM. Specifications for night-vision and infrared equipment shall be provided to NMFS for review and acceptance prior to start of surveys.

    (f) PSOs and PAM operators shall work in shifts such that no one monitor will work more than 4 consecutive hours without a 2 hour break or longer than 12 hours during any 24-hour period. During daylight hours the PSOs shall rotate in shifts of 1 on and 3 off, and while during nighttime operations PSOs shall work in pairs.

    (g) PAM operators shall also be on call as necessary during daytime operations should visual observations become impaired.

    (h) Position data shall be recorded using hand-held or vessel global positioning system (GPS) units for each sighting.

    (i) A briefing shall be conducted between survey supervisors and crews, PSOs, and Statoil to establish responsibilities of each party, define chains of command, discuss communication procedures, provide an overview of monitoring purposes, and review operational procedures.

    (j) Statoil shall provide resumes of all proposed PSOs and PAM operators (including alternates) to NMFS for review and approval at least 45 days prior to the start of survey operations.

    (k) PSO Qualifications shall include direct field experience on a marine mammal observation vessel and/or aerial surveys.

    (a) Data on all PAM/PSO observations shall be recorded based on standard PSO collection requirements. PSOs must use standardized data forms, whether hard copy or electronic. The following information shall be reported:

    (i) PSO names and affiliations.

    (ii) Dates of departures and returns to port with port name.

    (iii) Dates and times (Greenwich Mean Time) of survey effort and times corresponding with PSO effort.

    (iv) Vessel location (latitude/longitude) when survey effort begins and ends; vessel location at beginning and end of visual PSO duty shifts.

    (v) Vessel heading and speed at beginning and end of visual PSO duty shifts and upon any line change.

    (vi) Environmental conditions while on visual survey (at beginning and end of PSO shift and whenever conditions change significantly), including wind speed and direction, Beaufort sea state, Beaufort wind force, swell height, weather conditions, cloud cover, sun glare, and overall visibility to the horizon.

    (vii) Factors that may be contributing to impaired observations during each PSO shift change or as needed as environmental conditions change (e.g., vessel traffic, equipment malfunctions).

    (viii) Survey activity information, such as acoustic source power output while in operation, number and volume of airguns operating in the array, tow depth of the array, and any other notes of significance (i.e., pre-ramp-up survey, ramp-up, shutdown, testing, shooting, ramp-up completion, end of operations, streamers, etc.).

    (ix) If a marine mammal is sighted, the following information should be recorded:

    (A) Watch status (sighting made by PSO on/off effort, opportunistic, crew, alternate vessel/platform);

    (B) PSO who sighted the animal;

    (C) Time of sighting;

    (D) Vessel location at time of sighting;

    (E) Water depth;

    (F) Direction of vessel's travel (compass direction);

    (G) Direction of animal's travel relative to the vessel;

    (H) Pace of the animal;

    (I) Estimated distance to the animal and its heading relative to vessel at initial sighting;

    (J) Identification of the animal (e.g., genus/species, lowest possible taxonomic level, or unidentified); also note the composition of the group if there is a mix of species;

    (K) Estimated number of animals (high/low/best);

    (L) Estimated number of animals by cohort (adults, yearlings, juveniles, calves, group composition, etc.);

    (M) Description (as many distinguishing features as possible of each individual seen, including length, shape, color, pattern, scars or markings, shape and size of dorsal fin, shape of head, and blow characteristics);

    (N) Detailed behavior observations (e.g., number of blows, number of surfaces, breaching, spyhopping, diving, feeding, traveling; as explicit and detailed as possible; note any observed changes in behavior);

    (O) Animal's closest point of approach and/or closest distance from the center point of the acoustic source;

    (P) Platform activity at time of sighting (e.g., deploying, recovering, testing, data acquisition, other); and

    (Q) Description of any actions implemented in response to the sighting (e.g., delays, shutdown, ramp-up, speed or course alteration, etc.) and time and location of the action.

    6. Reporting—a technical report shall be provided to NMFS within 90 days after completion of survey activities that fully documents the methods and monitoring protocols, summarizes the data recorded during monitoring, estimates the number of marine mammals that may have been taken during survey activities, describes the effectiveness of the various mitigation techniques (i.e. visual observations during day and night compared to PAM detections/operations) and provides an interpretation of the results and effectiveness of all monitoring tasks. Any recommendations made by NMFS shall be addressed in the final report prior to acceptance by NMFS.

    (a) Reporting injured or dead marine mammals:

    (i) In the event that the specified activity clearly causes the take of a marine mammal in a manner not prohibited by this IHA (if issued), such as serious injury or mortality, Statoil shall immediately cease the specified activities and immediately report the incident to NMFS. The report must include the following information:

    (A) Time, date, and location (latitude/longitude) of the incident;

    (B) Vessel's speed during and leading up to the incident;

    (C) Description of the incident;

    (D) Status of all sound source use in the 24 hours preceding the incident;

    (E) Water depth;

    (F) Environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, and visibility);

    (G) Description of all marine mammal observations in the 24 hours preceding the incident;

    (H) Species identification or description of the animal(s) involved;

    (I) Fate of the animal(s); and

    (J) Photographs or video footage of the animal(s).

    Activities shall not resume until NMFS is able to review the circumstances of the prohibited take. NMFS will work with Statoil to determine what measures are necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. Statoil may not resume their activities until notified by NMFS.

    (ii) In the event that Statoil discovers an injured or dead marine mammal, and the lead PSO determines that the cause of the injury or death is unknown and the death is relatively recent (e.g., in less than a moderate state of decomposition), Statoil shall immediately report the incident to NMFS. The report must include the same information identified in condition 6(b)(i) of this IHA. Activities may continue while NMFS reviews the circumstances of the incident. NMFS will work with Statoil to determine whether additional mitigation measures or modifications to the activities are appropriate.

    (iii) In the event that Statoil discovers an injured or dead marine mammal, and the lead PSO determines that the injury or death is not associated with or related to the specified activities (e.g., previously wounded animal, carcass with moderate to advanced decomposition, or scavenger damage), Statoil shall report the incident to NMFS within 24 hours of the discovery. Statoil shall provide photographs or video footage or other documentation of the sighting to NMFS.

    7. This Authorization may be modified, suspended or withdrawn if the holder fails to abide by the conditions prescribed herein, or if NMFS determines the authorized taking is having more than a negligible impact on the species or stock of affected marine mammals.

    Request for Public Comments

    We request comment on our analyses, the draft authorization, and any other aspect of this Notice of Proposed IHA for the proposed marine site characterization surveys. Please include with your comments any supporting data or literature citations to help inform our final decision on the request for MMPA authorization.

    On a case-by-case basis, NMFS may issue a one-year renewal IHA without additional notice when (1) another year of identical or nearly identical activities as described in the Specified Activities section is planned, or (2) the activities would not be completed by the time the IHA expires and renewal would allow completion of the activities beyond that described in the Dates and Duration section, provided all of the following conditions are met:

    • A request for renewal is received no later than 60 days prior to expiration of the current IHA.

    • The request for renewal must include the following:

    (1) An explanation that the activities to be conducted beyond the initial dates either are identical to the previously analyzed activities or include changes so minor (e.g., reduction in pile size) that the changes do not affect the previous analyses, take estimates, or mitigation and monitoring requirements.

    (2) A preliminary monitoring report showing the results of the required monitoring to date and an explanation showing that the monitoring results do not indicate impacts of a scale or nature not previously analyzed or authorized.

    • Upon review of the request for renewal, the status of the affected species or stocks, and any other pertinent information, NMFS determines that there are no more than minor changes in the activities, the mitigation and monitoring measures remain the same and appropriate, and the original findings remain valid.

    Dated: February 16, 2018. Donna S. Wieting, Director, Office of Protected Resources, National Marine Fisheries Service.
    [FR Doc. 2018-03611 Filed 2-21-18; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XF882 Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Astoria Waterfront Bridge Replacement Project AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Notice; proposed incidental harassment authorization; request for comments.

    SUMMARY:

    NMFS has received a request from the City of Astoria for authorization to take marine mammals incidental to pile driving and construction work during the Waterfront Bridge Replacement Project in Astoria, Oregon. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its proposal to issue an incidental harassment authorization (IHA) to incidentally take marine mammals during the specified activities.

    DATES:

    Comments and information must be received no later than March 26, 2018.

    ADDRESSES:

    Comments should be addressed to Jolie Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service. Physical comments should be sent to 1315 East-West Highway, Silver Spring, MD 20910 and electronic comments should be sent to [email protected]

    Instructions: NMFS is not responsible for comments sent by any other method, to any other address or individual, or received after the end of the comment period. Comments received electronically, including all attachments, must not exceed a 25-megabyte file size. Attachments to electronic comments will be accepted in Microsoft Word or Excel or Adobe PDF file formats only. All comments received are a part of the public record and will generally be posted online at https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities without change. All personal identifying information (e.g., name, address) voluntarily submitted by the commenter may be publicly accessible. Do not submit confidential business information or otherwise sensitive or protected information.

    FOR FURTHER INFORMATION CONTACT:

    Amy Fowler, Office of Protected Resources, NMFS, (301) 427-8401. Electronic copies of the application and supporting documents, as well as a list of the references cited in this document, may be obtained online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities. In case of problems accessing these documents, please call the contact listed above.

    SUPPLEMENTARY INFORMATION:

    Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce (as delegated to NMFS) to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are issued or, if the taking is limited to harassment, a notice of a proposed authorization is provided to the public for review.

    An authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth.

    NMFS has defined “negligible impact” in 50 CFR 216.103 as “. . . an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”

    The MMPA states that the term “take” means to harass, hunt, capture, kill or attempt to harass, hunt, capture, or kill any marine mammal. Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).

    National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, NMFS must review our proposed action (i.e., the issuance of an incidental harassment authorization) with respect to potential impacts on the human environment.

    This action is consistent with categories of activities identified in CE B4 of the Companion Manual for NOAA Administrative Order 216-6A, which do not individually or cumulatively have the potential for significant impacts on the quality of the human environment and for which we have not identified any extraordinary circumstances that would preclude this categorical exclusion. Accordingly, NMFS has preliminarily determined that the issuance of the proposed IHA qualifies to be categorically excluded from further NEPA review.

    We will review all comments submitted in response to this notice prior to concluding our NEPA process or making a final decision on the IHA request.

    Summary of Request

    On October 17, 2017, NMFS received a request from the City of Astoria (City) for an IHA to take marine mammals incidental to replacement of bridges in downtown Astoria along the Columbia River. The application was considered adequate and complete on January 17, 2018. The City's request is for take of California sea lions (Zalophus californianus), Steller sea lions (Eumetopias jubatus), and harbor seals (Phoca vitulina richardii) by Level B harassment only. Neither the City nor NMFS expect mortality to result from this activity and, therefore, an IHA is appropriate.

    Description of Proposed Activity Overview

    The City is seeking an IHA for the first year of a two-year project to remove and replace piles supporting six waterfront bridges in Astoria, Oregon. Phase I of the project, which would occur under this IHA, involves the removal and replacement of three bridges connecting 7th, 9th, and 11th Streets to waterfront piers. The bridges are currently supported by decayed timber piles and concrete footings that will be removed and replaced with steel piles. Roadway construction, timber pile removal, and steel pile driving are expected to result in Level B auditory harassment of California sea lions, harbor seals, and Steller sea lions.

    The proposed project would occur along the Lower Columbia River. The action area is not expected to exceed 1,600 meters (m) beyond each bridge site. Construction for Phase I of the project, removing and replacing the 7th, 9th, and 11th Street bridge crossings, is expected to occur between October 2018 and April 2019.

    Dates and Duration

    Project work is expected to begin in October 2018 with roadway and rail superstructure removal. Timber pile removal and steel pile installation will occur within the Oregon Department of Fish and Wildlife (ODFW) prescribed in-water work period (IWWP) for the Lower Columbia River (November 1 through February 28). Timber pile and concrete foundation removal will be initiated at the onset of the IWWP. These activities will likely occur over the entire IWWP, or 80 work days. Vibratory timber pile removal is expected to take approximately 26 days and impact hammer pile installation will take approximately 42 days. The remaining 12 days in the IWWP will be used to remove all concrete footings and a concrete retaining wall. The contractor will likely remove existing structures concurrent with construction of new foundations. Pile removal and installation will occur over an eight hour period each day.

    Additional above-water construction may be completed between March 2019 and August 2019. Rail superstructure construction is expected to occur over 13 work days between March 1 and April 11. Construction of approach superstructure and roadway improvements will be conducted between April and August 2019. An offsite storm water facility will be constructed during the summer of 2019.

    Specific Geographic Region

    The project site is located in the Baker Bay-Columbia River subwatershed. This section of the Columbia River represents the most saline portion of the river's estuarine environment. Tidal influence extends 146 miles upriver to the Bonneville Dam. The Columbia River is over nine miles wide in the area around Astoria and contains multiple islands, buoys, and sandbars that marine mammals utilize to haul out. The upland portions of the region of activity have been highly altered by human activities, with substantial shoreline development and remnants of historical development. This includes thousands of timber piles, overwater buildings, a railroad trestle, and vehicular bridges. The downtown Astoria waterfront is a busy area for pedestrians, vehicles, and boats. In addition to onshore development, the Lower Columbia River is utilized by various types of vessels, including cargo ships, dredging vessels, fishing vessels, trawlers, pollution control vessels, and search and rescue vessels, among others.

    The remainder of the region of activity is located within the river channel within the intertidal and subtidal zones. The substrate in this area is primarily made up of historical rip rap and other rocks/cobbles. All in-water construction will occur in the intertidal and subtidal zones. Some piles may be removed and installed completely in the dry while others may remain inundated in water over 75 percent of the time. Section 1 of the application describes the tidal conditions of each crossing in detail.

    Detailed Description of Specific Activity

    Phase I of the project involves the removal and replacement of three bridges connecting 7th, 9th, and 11th Streets to waterfront piers. Each bridge has pedestrian and vehicle access. A railroad trestle runs parallel to the shoreline between the bridges along the waterfront. Demolition of the existing bridge crossings will require the removal of bridge decks and other aboveground components for the rail trestle and roadway approaches. Demolition of the superstructures will likely be accomplished using standard roadway and bridge construction equipment. The existing bridge crossings are primarily founded on a timber substructure. All timber elements supporting the roadway approach and trestle crossing will be removed. Most of the structures are below the Mean High Water (MHW) elevation; the remaining timber elements are below the Mean Higher-High Water (MHHW) or the Highest Measured Tide (HMT) elevation, with only a few piles being removed landward of the HMT elevation. Each bridge contains 85 timber structures to be removed. Most timber piles are 12 inches (in) diameter but some may be up to 14 in. The contractor will use a vibratory hammer or direct pull to remove the timber piles. In addition to timber structures, each bridge is supported by concrete footings ranging in size from 16 in by 16 in to 12 feet (ft) by 3 ft. Seven concrete structures will be removed from the 7th Street crossing, four from the 9th Street crossing, and eight from the 11th Street crossing (Table 1). A concrete retaining wall at the 9th Street crossing will also be removed to facilitate construction of the new roadway approach. The wall is located below the HMT elevation and is frequently exposed to surface flows. The contractor will use a concrete saw to cut the retaining wall into manageable pieces.

    Abutment wingwalls will be constructed at the 9th Street crossing to help contain the roadway approach fill. The wingwalls will be cast-in-place concrete retaining walls. The eastern retaining wall will be located above the HMT and the western wall will be above the MHHW. As a result, the work will be completed in the dry; however, the contractor will install measures when necessary to isolate the work area.

    Most of the piles to be installed are within 40 ft of the existing abutments, so the piles will be installed from a crane staged on the south side of the bridges. However, piling at the 9th Street crossing is up to 60 ft from the south abutment. The size and length of the piling as well as the weight of the pile hammer and leads places additional demand on the supporting crane. As a result, the contractor will construct temporary shoring consisting of two bents comprised of five 16-in piles each for a total of ten piles. Both bents will be located within two ft of the MLW elevation. Therefore, all piles are likely to be inundated by water levels greater than 2 ft deep at least 75 percent of the time during installation and extraction. Construction of the work platform will be initiated following removal of the superstructures, retaining wall, and approach fill at the 9th Street crossing. Due to the soft soils, it is anticipated that each pile installed will advance predominately under its own weight with a limited number of impact hammer strikes prior to reaching the bedrock surface. To finish pile installation, the contractor will be required to use an impact hammer to secure the piles into the bedrock and verify the required bearing resistances. All temporary pilings will be installed and removed during the ODFW prescribed IWWP and will remain in place for only one construction season.

    A total of 74 24-in diameter permanent steel piles are expected to be driven for Phase I of this project (21 at the 7th Street crossing, 25 at the 9th Street crossing, and 28 at the 11th Street crossing, Table 1). As with the temporary shoring, it is expected that the permanent piles will advance under their own weight with a limited number of hammer strikes before reaching the bedrock surface.

    Table 1—Structures To Be Removed and Installed Structure Timber piles to be removed Concrete
  • footings to
  • be removed
  • Steel piles to be installed
    7th Street 85 7 21 9th Street 85 4 25 11th Street 85 8 28 Temporary shoring (9th St. only) 10

    The IWWP prescribed by ODFW includes 80 work days. Construction work is assumed to occur over an eight hour period each day. It is assumed that the contractor will drive the first 40 ft of piling for each pile location (each pile location consists of two 40-foot pile sections) over the first few days of pile driving, then splice on the additional 40 ft of piling at each location over the next few days. After the first 40-ft pile section is driven, a backer bar is tack welded on to the first pile section, then the second pile section is aligned with a crane, and welded on. Once all of the piles are spliced, the contractor will resume pile driving activities to set each pile to the desired depth. It is estimated that the contractor can install four 40-foot piles a day at an estimated 250 strikes per pile. With a total of 84 piles to be driven (74 permanent and 10 temporary), given the rate of four 40-ft piles per day, impact pile driving will take 42 days with a total of 1000 strikes per day (Table 2). This would leave 38 work days for the removal of existing timber piling and concrete substructures. The contractor will attempt to extract the existing piles via direct pull or vibratory hammer. Vibratory removal of timber piles will take approximately 30 minutes per pile. A total of 255 timber piles are anticipated to be extracted. At an average of 10 piles removed per day, existing timber pile removal is expected to take 26 days (Table 2) which leaves 12 days remaining in the work period to cover the removal of all concrete footings and the 9th Street retaining wall. It is anticipated that the contractor will be removing existing substructure elements concurrent with the construction of the new foundations.

    Table 2—Pile Driving Estimates per Day Number Method Piles per day Number of days 1 Number
  • of strikes per day
  • Timber Piles to be Removed 255 Vibratory Hammer and Direct Pull 10 26 N/A 24″ Steel Piles to be Installed 74 Impact Hammer 4 37 1000 16″ Steel Piles to be Installed 10 Impact Hammer 4 5 1000 1 It is assumed that the contractor will drive the first 40 ft of piling on one day, then splice on the additional 40 ft of piling and resume pile driving on another day, totaling two days required to drive all 80 ft of pile, hence double the amount of days than piles.

    The construction activities that could potentially result in acoustic and visual disturbance to pinnipeds within the action area include rail and roadway superstructure and concrete foundation removal activities, temporary work platform construction, piling installation, wingwall construction, and construction of the new rail and roadway superstructures. Most of these activities will require work in water during the IWWP (November 1 through February 28). Sound from pile removal and installation will likely extend out into the river channel where California sea lions, Steller sea lions, and harbor seals may be transiting. Work occurring in-air includes the removal of bridge decks and other aboveground components for the rail trestle crossings and roadway approaches as well as construction of the new rail superstructures and roadway improvements, which occurs directly above the river banks where hauled out California sea lions may be located. California sea lions may be harassed by the presence of construction equipment during above-water construction.

    Proposed mitigation, monitoring, and reporting measures are described in detail later in this document (please see “Proposed Mitigation” and “Proposed Monitoring and Reporting”).

    Description of Marine Mammals in the Area of Specified Activities

    Sections 3 and 4 of the application summarize available information regarding status and trends, distribution and habitat preferences, and behavior and life history, of the potentially affected species. Additional information regarding population trends and threats may be found in NMFS's Stock Assessment Reports (SAR; https://www.fisheries.noaa.gov/topic/population-assessments/marine-mammals) and more general information about these species (e.g., physical and behavioral descriptions) may be found on NMFS's website (https://www.fisheries.noaa.gov/find-species).

    Table 3 lists all species with expected potential for occurrence in Astoria and summarizes information related to the population or stock, including regulatory status under the MMPA and ESA and potential biological removal (PBR), where known. For taxonomy, we follow Committee on Taxonomy (2016). PBR is defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population (as described in NMFS's SARs). While no mortality is anticipated or authorized here, PBR and annual serious injury and mortality from anthropogenic sources are included here as gross indicators of the status of the species and other threats.

    Marine mammal abundance estimates presented in this document represent the total number of individuals that make up a given stock or the total number estimated within a particular study or survey area. NMFS's stock abundance estimates for most species represent the total estimate of individuals within the geographic area, if known, that comprises that stock. For some species, this geographic area may extend beyond U.S. waters. All managed stocks in this region are assessed in NMFS's U.S. 2016 SARs (e.g., Caretta et al. 2017). All values presented in Table 3 are the most recent available at the time of publication and are available in the 2016 SARs (Caretta et al. 2017, Muto et al., 2017).

    Table 3—Marine Mammals Potentially Present in the Vicinity of Astoria Common name Scientific name Stock ESA/MMPA status;
  • strategic
  • (Y/N) 1
  • Stock abundance (CV, Nmin, most
  • recent abundance
  • survey) 2
  • PBR Annual M/SI 3 Relative
  • occurrence
  • near Astoria
  • Order Carnivora—Superfamily Pinnipedia Family Otariidae (eared seals and sea lions) California sea lion Zalophus californianus U.S -; N 296,750 (N/A, 153,337, 2011) 9,200 389 Likely. Steller sea lion Eumetopias jubatus Eastern U.S -; N 41,638 (N/A, 41,638, 2015) 2,498 108 Likely. Family Phocidae (earless seals) Pacific harbor seal Phoca vitulina richardii Oregon/Washington Coast -; N Unknown (0.12, 24,732, 1999) undet. 10.6 Likely. 1 Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is automatically designated under the MMPA as depleted and as a strategic stock. 2 NMFS marine mammal stock assessment reports online at: www.nmfs.noaa.gov/pr/sars/. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable. For certain stocks, abundance estimates are actual counts of animals and there is no associated CV. 3 These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial fisheries, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range. A CV associated with estimated mortality due to commercial fisheries is presented in some cases.

    All species that could potentially occur in the proposed survey areas are included in Table 3. As described below, all three species temporally and spatially co-occur with the activity to the degree that take is reasonably likely to occur, and we have proposed authorizing it.

    California Sea Lion

    California sea lions (Zalophus californianus) are distributed along the North Pacific waters from central Mexico to southeast Alaska, with breeding areas restricted primarily to island areas off southern California (the Channel Islands), Baja California, and in the Gulf of California (Wright et al., 2010). California sea lions are dark brown with broad fore flippers and a long, narrow snout. There are five genetically distinct geographic populations. The population seen in Oregon is the Pacific Temperate stock, which are commonly seen in Oregon from September through May (ODFW 2015). The approximate growth rate for this species is 5.4 percent annually (Caretta et al., 2004). Threats to this species include incidental catch and entanglement in fishing gear, such as gillnets; biotoxins, as a result of harmful algal blooms; and gunshot wounds and other human-caused injuries, as California sea lions are sometimes viewed as a nuisance by commercial fishermen (NOAA 2016).

    Almost all California sea lions in the Pacific Northwest are sub-adult or adult males (NOAA 2008). California sea lions feed in both the Columbia River and adjacent nearshore marine areas. Their population is lowest in Oregon in the summer months, from May to September, as they migrate south to the Channel Islands in California to breed. California sea lions have been observed near several crossings within the Project site; however, this is not their main haul out. Their main haul out is the East Mooring Basin, which is located over one mile upstream, outside of the Region of Activity. Construction activities are proposed between October and April, which includes the tail end of peak usage of the lower river by California sea lions. Counts of California sea lions are highest in September but taper off until March when the sea lions travel south past Oregon toward their breeding sites (Brown et al., 2015). Recent years have shown an increase in the record numbers of California sea lions at the East Mooring Basin with a 2015 spring record of 2,340 individuals (up from 1,420 in 2014), though in past years, typical spring counts were closer to 100-300 individuals (Profita 2015). Changes in climate, food sources, and a growing population approaching 300,000 are all cited as possible reasons for these increases. Counts of California sea lions at the South Jetty haulout at the mouth of the Columbia River (10 miles downstream of project site) date back to 1995 (ODFW 2007) but more reliable monthly counts from Washington Department of Fish and Wildlife (WDFW) are available from 2000-2014 (WDFW 2014).

    Harbor Seal

    The Pacific harbor seal (Phoca vitulina richardii) is the most widespread and abundant resident pinniped in Oregon. They are generally blue-gray with light and dark speckling; they lack external ear flaps and have short forelimbs. Harbor seals are generally non-migratory and occur on both the U.S. east and west coasts. On the west coast they range from Alaska to Baja California, Mexico (ODFW 2015).

    The Oregon/Washington Coast stock abundance was estimated in 1999 to be 24,732. However, the data used to establish that abundance was eight years old at the time and no more recent stock abundance estimates exist (Caretta et al., 2017). The 1999 abundance estimate will be used for the purposes of this analysis. The Oregon/Washington Coast stock of Pacific harbor seals is not listed under the ESA nor are they considered depleted or strategic under the MMPA.

    Harbor seals utilize specific shoreline locations on a regular basis as haulouts including beaches, rocks, floats, and buoys. They must rest at haulout locations to regulate body temperature, interact with one another, and sleep (NOAA 2016). Harbor seals are present throughout the year at the mouth of the Columbia River and adjacent nearshore marine areas. Harbor seals are an infrequent visitor at the Astoria Mooring Basin, but they are known to transit through the Region of Activity. Their closest haulout and pupping area is Desdemona Sands which is downstream of the Astoria-Megler Bridge and outside the Region of Activity. Pupping occurs from Mid-April to July, outside of the proposed project work period (Susan Riemer, pers. comm., 2016). Due to their year-round occurrence in the Columbia River, harbor seals are likely to be found transiting the area during in-water construction.

    Steller Sea Lion

    The Steller sea lion (Eumetopias jubatus) range extends along the Pacific Rim, from northern Japan to central California. For management purposes, Steller sea lions inhabiting U.S. waters have been divided into two DPS: The Western U.S. and the Eastern U.S. The population known to occur within the Lower Columbia River is the Eastern DPS. The Western U.S. stock of Steller sea lions are listed as endangered under the ESA and depleted and strategic under the MMPA. The Eastern U.S. stock (including those living in Oregon) was de-listed in 2013 following a population growth from 18,000 in 1979 to 70,000 in 2010 (an estimated annual growth of 4.18 percent) (NOAA 2013). The current abundance estimate for the Eastern U.S. stock is 41,638 (Muto et al., 2017). Threats to Steller sea lions include: Boat/ship strikes, contaminants/pollutants, habitat degradation, illegal hunting/shooting, offshore oil and gas exploration, and interactions (direct and indirect) with fisheries (NOAA 2016). Critical habitat was designated for Steller sea lions on August 27, 1993 (58 FR 45269), but is not present within the Region of Activity. Critical habitat is associated with specific breeding and haulout sites in Alaska, California, and Oregon (NOAA 2016).

    Steller sea lions are present year-round at the mouth of the Columbia River, with the primary haulout point on the top South Jetty (approximately 10 miles downstream of the action area) and they are at their peak in the lower river from September through March. The South Jetty haulout is the only artificial structure Steller sea lions regularly use along the Oregon coast. Steller sea lions feed in both the Columbia River and adjacent nearshore marine areas. Due to their year-round presence and peak of presence during the winter months, Steller sea lions are likely to be transiting the area during in-water construction activities.

    Potential Effects of Specified Activities on Marine Mammals and Their Habitat

    This section includes a summary and discussion of the ways that components of the specified activity may impact marine mammals and their habitat. The Estimated Take by Incidental Harassment section later in this document includes a quantitative analysis of the number of individuals that are expected to be taken by this activity. The Negligible Impact Analysis and Determination section considers the content of this section, the Estimated Take by Incidental Harassment section, and the Proposed Mitigation section, to draw conclusions regarding the likely impacts of these activities on the reproductive success or survivorship of individuals and how those impacts on individuals are likely to impact marine mammal species or stocks.

    Description of Sound Sources

    Sound travels in waves, the basic components of which are frequency, wavelength, velocity, and amplitude. Frequency is the number of pressure waves that pass by a reference point per unit of time and is measured in hertz (Hz) or cycles per second. Wavelength is the distance between two peaks of a sound wave; lower frequency sounds have longer wavelengths than higher frequency sounds. Amplitude is the height of the sound pressure wave or the `loudness' of a sound and is typically measured using the decibel (dB) scale. A dB is the ratio between a measured pressure (with sound) and a reference pressure (sound at a constant pressure, established by scientific standards). It is a logarithmic unit that accounts for large variations in amplitude; therefore, relatively small changes in dB ratings correspond to large changes in sound pressure. When referring to sound pressure levels (SPLs; the sound force per unit area), sound is referenced in the context of underwater sound pressure to 1 microPascal (µPa). One Pascal is the pressure resulting from a force of one Newton exerted over an area of one square meter. The source level (SL) represents the sound level at a distance of 1 m from the source (referenced to 1 µPa). The received level is the sound level at the listener's position. Note that all underwater sound levels in the document are referenced to a pressure of 1 µPa and all airborne sound levels in this document are referenced to a pressure of 20 µPa.

    Root mean square (rms) is the quadratic mean sound pressure over the duration of an impulse. Rms is calculated by squaring all of the sound amplitudes, averaging the squares, and then taking the square root of the average (Urick 1983). Rms accounts for both positive and negative values; squaring the pressures makes all values positive so that they may be accounted for in the summation of pressure levels (Hastings and Popper, 2005). This measurement is often used in the context of discussing behavioral effects, in part because behavioral effects, which often result from auditory cues, may be better expressed through averaged units than by peak pressures.

    When underwater objects vibrate or activity occurs, sound-pressure waves are created. These waves alternately compress and decompress the water as the sound wave travels. Underwater sound waves radiate in all directions away from the source (similar to ripples on the surface of a pond), except in cases where the source is directional. The compressions and decompressions associated with sound waves are detected as changes in pressure by aquatic life and man-made sound receptors such as hydrophones.

    Even in the absence of sound from the specified activity, the underwater environment is typically loud due to ambient sound. Ambient sound is defined as environmental background sound levels lacking a single source or point (Richardson et al., 1995), and the sound level of a region is defined by the total acoustical energy being generated by known and unknown sources. These sources may include physical (e.g., waves, earthquakes, ice, atmospheric sound), biological (e.g., sounds produced by marine mammals, fish, and invertebrates), and anthropogenic sound (e.g., vessels, dredging, aircraft, construction). A number of sources contributed to ambient sound, including the following (Richardson et al., 1995):

    • Wind and waves: The complex interactions between wind and water surface, including processes such as breaking waves and wave-induced bubble oscillations and cavitation, are a main source of naturally occurring ambient noise for frequencies between 200 Hz and 50 kilohertz (kHz) (Mitson, 1995). In general, ambient sound levels tend to increase with increasing wind speed and wave height. Surf noise becomes important near shore, with measurements collected at a distance of 8.5 km from shore showing an increase of 10 dB in the 100 to 700 Hz band during heavy surf conditions.

    • Precipitation: Sound from rain and hail impacting the water surface can become an important component of total noise frequencies above 500 Hz, and possibly down to 100 Hz during quiet times.

    • Biological: Marine mammals can contribute significantly to ambient noise levels, as can some fish and shrimp. The frequency band for biological contributions is from approximately 12 Hz to over 100 kHz.

    • Anthropogenic: Sources of ambient noise related to human activity include transportation (surface vessels and aircraft), dredging and construction, oil and gas drilling and production, seismic surveys, sonar, explosions, and ocean acoustic studies. Shipping noise typically dominates the total ambient noise for frequencies between 20 and 300 Hz. In general, the frequencies of anthropogenic sounds are below 1 kHz and, if higher frequency sound levels are created, they attenuate rapidly (Richardson et al., 1995). Sound from identifiable anthropogenic sources other than the activity of interest (e.g., a passing vessel) is sometimes termed background sound, as opposed to ambient sound. Representative levels of anthropogenic sound are displayed in Table 4.

    Table 4—Representative Sound Levels of Anthropogenic Sources Sound source Underwater sound level Reference Vibratory removal of 12-in timber pile 150 dB rms at 16 m Laughlin 2011a. Impact driving of 24-in steel pipe pile 184 dB rms at 10 m WSDOT 2016; Reyff 2007. Concrete saw 93 dB rms at 20 m1 Hanan and Associates 2014. 1 Airborne sound only (dB rms re 20 μPa).

    The sum of the various natural and anthropogenic sound sources at any given location and time—which comprise “ambient” or “background” sound—depends not only on the source levels (as determined by current weather conditions and levels of biological and shipping activity) but also on the ability of sound to propagate through the environment. In turn, sound propagation is dependent on the spatially and temporally varying properties of the water column and sea floor, and is frequency-dependent. As a result of the dependence on a large number of varying factors, ambient sound levels can be expected to vary widely over both coarse and fine spatial and temporal scales. Sound levels at a given frequency and location can vary by 10-20 dB from day to day (Richardson et al., 1995). The result is that, depending on the source type and its intensity, sound from the specified activity may be a negligible addition to the local environment or could form a distinctive signal that may affect marine mammals.

    In-water construction activities associated with the Project include impact pile driving and vibratory pile removal. The sounds produced by these activities fall into one of two general sound types: pulsed and non-pulsed (defined in the following). The distinction between these two sound types is important because they have differing potential to cause physical effects, particularly with regard to hearing (e.g., Ward 1997 in Southall et al., 2007). Please see Southall et al., (2007) for an in-depth discussion of these concepts.

    Pulsed sound sources (e.g., impact pile driving) product signals that are brief (typically considered to be less than one second), broadband, atonal transients (ANSI 1986; Harris 1998; NIOSH 1998; ISO 2003; ANSI 2005) and occur either as isolated events or repeated in some succession. Pulsed sounds are all characterized by a relatively rapid rise from ambient pressure to a maximal pressure value followed by a rapid decay period that may include a period of diminishing, oscillating maximal and minimal pressures, and generally have an increased capacity to induce physical injury as compared with sounds that lack these features.

    Non-pulsed sounds can be tonal, narrowband or broadband, brief or prolonged, and may be wither continuous or non-continuous (ANSI 1995; NIOSH 1998). Some of these non-pulsed sounds can be transient signals of short duration without the essential properties of pulses (e.g., rapid rise time). Examples of non-pulsed sounds include those produced by vessels, aircraft, machinery operations such as drilling or dredging, vibratory pile driving, and active sonar systems (such as those used by the U.S. Navy). The duration of such sounds, as received at a distance, can be greatly extended in a highly reverberant environment.

    Impact hammers operate by repeatedly dropping a heavy piston onto a pile to drive the pile into the substrate. Sound generated by impact hammers is characterized by rapid rise times and high peak levels, a potentially injurious combination (Hastings and Popper 2005). Vibratory hammers install piles by vibrating them and allowing the weight of the hammer to push them into the sediment. Vibratory hammers produce significantly less sound than impact hammers. Peak SPLs may be 180 dB or greater, but are generally 10 to 20 dB lower than SPLs generated during impact pile driving of the same-sized pile (Oestman et al., 2005).

    Marine Mammal Hearing

    Hearing is the most important sensory modality for marine mammals underwater, and exposure to anthropogenic sound can have deleterious effects. To appropriately assess the potential effects of exposure to sound, it is necessary to understand the frequency ranges marine mammals are able to hear. Current data indicate that not all marine mammal species have equal hearing capabilities (e.g., Richardson et al., 1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect this, Southall et al. (2007) recommended that marine mammals be divided into functional hearing groups based on directly measured or estimated hearing ranges on the basis of available behavioral response data, audiograms derived using auditory evoked potential techniques, anatomical modeling, and other data. Note that no direct measurements of hearing ability have been successfully completed for mysticetes (i.e., low-frequency cetaceans). Subsequently, NMFS (2016) described generalized hearing ranges for these marine mammal hearing groups. Generalized hearing ranges were chosen based on the approximately 65 dB threshold from the normalized composite audiograms, with the exception for lower limits for low-frequency cetaceans where the lower bound was deemed to be biologically implausible and the lower bound from Southall et al. (2007) retained. The functional groups and the associated frequencies are indicated below in Table 5 (note that these frequency ranges correspond to the range for the composite group, with the entire range not necessarily reflecting the capabilities of every species within that group).

    Table 5—Marine Mammal Hearing Groups and Their Generalized Hearing Range Hearing group Generalized hearing range * Low-frequency (LF) cetaceans (baleen whales) 7 Hz to 35 kHz. Mid-frequency (MF) cetaceans (dolphins, toothed whales, beaked whales, bottlenose whales) 150 Hz to 160 kHz. High-frequency (HF) cetaceans (true porpoises, Kogia, river dolphins, cephalorhynchid, Lagenorhynchus cruciger and L. australis) 275 Hz to 160 kHz. Phocid pinnipeds (PW) (underwater) (true seals) 50 Hz to 86 kHz. Otariid pinnipeds (OW) (underwater) (sea lions and fur seals) 60 Hz to 39 kHz. * Represents the generalized hearing range for the entire group as a composite (i.e., all species within the group), where individual species' hearing ranges are typically not as broad. Generalized hearing range chosen based on ~65 dB threshold from normalized composite audiogram, with the exception for lower limits for LF cetaceans (Southall et al., 2007) and PW pinniped (approximation).

    The pinniped functional hearing group was modified from Southall et al. (2007) on the basis of data indicating that phocid species have consistently demonstrated an extended frequency range of hearing compared to otariids, especially in the higher frequency range (Hemilä et al., 2006; Kastelein et al., 2009; Reichmuth and Holt, 2013).

    For more detail concerning these groups and associated frequency ranges, please see NMFS (2016) for a review of available information. As mentioned previously in this document, three marine mammal species (zero cetacean and three pinniped (two otariid and one phocid) species) have the reasonable potential to co-occur with the proposed activities (Table 3). Harbor seals are classified as members of the phocid pinnipeds in water functional hearing group, while Steller and California sea lions are grouped under the otariid pinnipeds in water functional hearing group. A species' functional hearing group is a consideration when we analyze the effects of exposure to sound on marine mammals.

    Acoustic Impacts

    Please refer to the information given previously (Description of Sound Sources) regarding sound, characteristics of sound types, and metrics used in this document. Anthropogenic sounds cover a broad range of frequencies and sound levels and can have a range of highly variable impacts on marine life, from none or minor to potentially severe responses, depending on received levels, duration of exposure, behavioral context, and various other factors. The potential effects of underwater sound form active acoustic sources can potentially result in one or more of the following: Temporary or permanent hearing impairment, non-auditory physical or physiological effects, behavioral disturbance, stress, and masking (Richardson et al., 1995; Gordon et al., 2004; Nowacek et al., 2007; Southall et al., 2007; Gotz et al., 2009). The effects of pile driving on marine mammals are dependent on several factors, including the size, type, and depth of the animal; the depth, intensity, and duration of the pile driving sound; the depth of the water column; the substrate of the habitat; the standoff distance between the pile and the animal; and the sound propagation properties of the environment. Impacts to marine mammals from pile driving activities are expected to result primarily from acoustic pathways. As such, the degree of effect is intrinsically related to the received level and duration of the sound exposure, which are in turn influenced by the distance between the animal and the source. The further away from the source, the less intense the exposure should be. The substrate and depth of the habitat affect the sound propagation properties of the environment. Shallow environments are typically more structurally complex, which leads to rapid sound attenuation. In addition, substrates that are soft (e.g., sand) would absorb or attenuate the sound more readily than hard substrates (e.g., rock) which may reflect the acoustic wave. Soft porous substrates would also likely require less time to drive the pile, and possibly less forceful equipment, which would ultimately decrease the intensity of the acoustic source.

    In the absence of mitigation, impacts to marine species would be expected to result from physiological and behavioral responses to both the type and strength of the acoustic signature (Viada et al., 2008). The type and severity of behavioral impacts are more difficult to define due to limited studies addressing the behavioral effects of impulse sounds on marine mammals. Potential effects from impulse sound sources can range in severity from effects such as behavioral disturbance or tactile perception to physical discomfort, slight injury of the internal organs and the auditory system, or mortality (Yelverton et al., 1973).

    Hearing Impairment and Other Physical Effects—Marine mammals exposed to high intensity sound repeatedly or for prolonged periods can experience hearing threshold shift (TS), which is the loss of hearing sensitivity at certain frequency ranges (Kastak et al., 1999; Schlundt et al., 2000; Finneran et al., 2002, 2005). TS can be permanent (PTS) in which case the loss of hearing sensitivity is not recoverable, or temporary (TTS), in which the animal's hearing threshold would recover over time (Southall et al., 2007). Marine mammals depend on acoustic cues for vital biological functions (e.g., orientation, communication, foraging, avoiding predators); thus, TTS may result in reduced fitness in survival and reproduction. However, this depends on the frequency and duration of TTS, as well as the biological context in which it occurs. TTS of limited duration, occurring in a frequency range that does not coincide with that used for recognition of important acoustic cues, would have little to no effect on an animal's fitness. Repeated sound exposure that leads to TTS could cause PTS. PTS constitutes injury, but TTS does not (Southall et al., 2007). The following subsections discuss in somewhat more detail the possibilities of TTS, PTS, and non-auditory physical effects.

    Temporary Threshold Shift—TTS is the mildest form of hearing impairment that can occur during exposure to a strong sound (Kryter 1985). While experiencing TTS, the hearing threshold rises, and a sound must be stronger in order to be heard. In terrestrial mammals, TTS can last from minutes or hours to days (in cases of strong TTS). For sound exposures at or somewhat above the TTS threshold, hearing sensitivity in both terrestrial and marine mammals recovers rapidly after exposure to the sound ends. Few data on sound levels necessary to elicit mild TTS have been obtained for marine mammals, and none of the published data concern TTS elicited by exposure to multiple pulses of sound. Available data on TTS in marine mammals are summarized in Southall et al. (2007).

    Permanent Threshold Shift—When PTS occurs, there is physical damage to the sound receptors in the ear. In severe cases, there can be total or partial deafness, while in other cases the animal has an impaired ability to hear sounds in specific frequency ranges (Kryter 1985). There is no specific evidence that exposure to pulses of sound can call PTS in any marine mammal. However, given the possibility that mammals close to a sound source might incur TTS, there has been further speculation about the possibility that some individuals might incur PTS. Single or occasional occurrences of mild TTS are not indicative of permanent auditory damage but repeated (or in some cases) single exposures to a level well above that causing TTS onset might elicit PTS.

    Relationships between TTS and PTS thresholds have not been studied in marine mammals—PTS data exists only for a single harbor seal (Kastak et al., 2008)—but are assumed to be similar to those in humans and other terrestrial mammals. PTS might occur at a received sound level at least several decibels above that inducing mild TTS if the animal were exposed to strong sound pulses with rapid rise time. Based on data from terrestrial mammals, a precautionary assumption is that the PTS threshold for impulse sounds (such as pile driving pulses received close to the source) is at least 6 dB higher than the TTS threshold on a peak-pressure basis and PTS cumulative sound exposure level threshold are 15 to 20 dB higher than TTS cumulative sound exposure level thresholds (Southall et al., 2007). Given the higher level of sound or longer exposure duration necessary to cause PTS as compared with TTS, it is considerably less likely that PTS could occur. The City will enforce a Level A exclusion zone to prevent PTS for all activities (see Proposed Mitigation section below).

    Non-auditory Physiological Effects—Non-auditory physiological effects or injuries that might theoretically occur in marine mammals exposed to strong underwater sound include stress, neurological effects, bubble formation, resonance effects, and other types of organ or tissue damage (Cox et al., 2006; Southall et al., 2007). Studies examining such effects are limited. In general, little is known about the potential for pile driving to cause auditory impairment or other physical effects in marine mammals. Available data suggest that such effects, if they occur at all, would presumably be limited to short distances from the sound source and to activities that extend over a prolonged period. The available data do not allow identification of a specific exposure level above which non-auditory effects can be expected (Southall et al., 2007) or any meaningful quantitative predictions of the numbers (if any) of marine mammals that might be affected in those ways. However, the proposed activities do not involve the use of devices such as explosives or mid-frequency active sonar that are associated with these types of effects. Therefore, non-auditory physiological impacts to marine mammals are considered unlikely.

    Disturbance Reactions

    Disturbance includes a variety of effects, including subtle changes in behavior, more conspicuous changes in activities, and displacement. Behavioral responses to sound are highly variable and context-specific and reactions, if any, depend on species, state of maturity, experience, current activity, reproductive state, auditory sensitivity, time of day, and many other factors (Richardson et al., 1995; Wartzok et al., 2003; Southall et al., 2007).

    Habituation can occur when an animal's response to a stimulus wanes with repeated exposure, usually in the absence of unpleasant associated events (Wartzok et al., 2003). Animals are most likely to habituate to sounds that are predictable and unvarying. The opposite process is sensitization, when an unpleasant experience leads to subsequent responses, often in the form of avoidance, at a lower level of exposure. Behavioral state may affect the type of response as well. For example, animals that are resting may show greater behavioral change in response to disturbing sound levels than animals that are highly motivated to remain in an area for feeding (Richardson et al., 1995; NRC 2003; Wartzok et al., 2003).

    Controlled experiments with captive marine mammals showed pronounced behavioral reactions, including avoidance of loud sound sources (Ridgeway et al., 1997; Finneran et al., 2003). Responses to continuous sound, such as vibratory pile installation, have not been documented as well as responses to pulsed sounds.

    With vibratory pile driving (and removal, as in this project), it is likely that the onset of pile driving could result in temporary, short term changes in an animal's typical behavior and/or avoidance of the affected area. These behavioral changes may include (Richardson et al., 1995): Changing durations of surfacing and dives; moving direction and/or speed; reduced/increased vocal activities; changing/cessation of certain behavioral activities (such as socializing or feeding); visible startle response or aggressive behavior; avoidance of areas where sound sources are located; and/or flight responses (e.g., pinnipeds flushing into the water from haul-outs or rookeries). Pinnipeds may also increase their haul-out time, possibly to avoid in-water disturbance (Thorson and Reyff, 2006).

    The biological significance of many of these behavioral disturbances is difficult to predict, especially if the detected disturbances appear minor. However, the consequences of behavioral modification could be expected to be biologically significant if the change affects growth, survival, or reproduction. Significant behavioral modifications that could potentially lead to effects on growth, survival, or reproduction include:

    • Drastic changes in diving/surfacing patterns;

    • Habitat abandonment due to loss of desirable acoustic environment; and

    • Cessation of feeding or social interaction.

    The onset of behavioral disturbances from anthropogenic sound depends on both external factors (characteristics of sound sources and their paths) and the specific characteristics of the receiving animals (hearing, motivation, experience, demography) and is difficult to predict (Southall et al., 2007).

    Auditory Masking

    Natural and artificial sounds can disrupt behavior by masking, or interfering with, a marine mammal's ability to hear other sounds. Masking occurs when the receipt of a sound is interfered with by another coincident sound at similar frequencies and at similar or higher levels. Chronic exposure to excessive, though not high-intensity, sound could cause masking at particular frequencies for marine mammals which utilize sound for vital biological functions. Masking can interfere with detection of acoustic signals such as communication calls, echolocation sounds, and environmental sounds important to marine mammals. Therefore, under certain circumstances, marine mammals whose acoustical sensors or environment are being severely masked could also be impaired from maximizing their performance fitness in survival and reproduction. If the coincident (masking) sound were man-made, it could potentially be harassing if it disrupted hearing-related behavior. It is important to distinguish TTS and PTS, which persist after the sound exposure, from masking, which occurs only during the sound exposure. Because masking (without resulting in TS) is not associated with abnormal physiological function, it is not considered a physiological effect, but rather a potential behavioral effect.

    The frequency range of the potentially masking sound is important in determining any potential behavioral impacts. Because sound generated from in-water vibratory pile driving is mostly concentrated at low frequency ranges, it may have less effect on high frequency echolocation sounds by odontocetes, which may hunt harbor seals. However, lower frequency man-made sounds are more likely to affect detection of communication calls and other potentially important natural sounds such as surf and prey sound. It may also affect communication signals when they occur near the sound band and thus reduce the communication space of animals (e.g., Clark et al., 2009) and cause increased stress levels (e.g., Foote et al., 2004; Holt et al., 2009).

    Masking affects both senders and receivers of acoustic signals and can potentially have long-term chronic effects on marine mammals at the population level as well as the individual level. Low-frequency ambient sound levels have increased by as much as 20 dB (more than three times in terms of SPL) in the world's ocean from pre-industrial periods, with most of the increase from distant commercial shipping (Hildebrand 2009). All anthropogenic sound sources, but especially chronic and lower-frequency signals (e.g., from vessel traffic), contribute to elevated ambient sound levels, thus intensifying masking.

    Vibratory pile removal is relatively short-term, with rapid oscillations occurring for approximately 30 minutes per pile. It is possible that the vibratory pile removal resulting from this proposed action may mask acoustic signals important to the behavior and survival of marine mammal species, but the short-term duration and limited affected area would result in insignificant impacts from masking. Any masking event that could possibly rise to Level B harassment under the MMPA would occur concurrently within the zones of behavioral harassment already estimated for vibratory pile driving, and which have already been taken into account in the exposure analysis.

    Acoustic Effects, Airborne—Marine mammals, specifically California sea lions, that occur in the project area could be exposed to airborne sounds associated with pile driving and other construction activities (e.g., concrete removal) that have the potential to cause harassment, depending on their distance from pile driving activities. Airborne construction sounds may be an issue for pinnipeds either hauled-out or looking with heads above water in the project area. Most likely, airborne sound would cause behavioral responses similar to those discussed above in relation to underwater sound. For instance, anthropogenic sound could cause hauled-out pinnipeds to exhibit changes in their normal behavior, such as reduction in vocalizations, or cause them to temporarily abandon their habitat and move further from the source. Studies by Blackwell et al. (2002) and Moulton et al. (2005) indicate a tolerance or lack of response to unweighted airborne sounds as high as 112 dB peak and 96 dB rms.

    Visual Disturbance—While three species of pinnipeds occur in the project area, only California sea lions are known to haul out in the vicinity of the bridges. California sea lions hauled out on the riverbanks below the bridge crossings and rail trestle may be visually disturbed by the increased presence of humans and construction equipment. Much of the work will occur above the riverbanks but some work will occur on the shore (e.g., concrete footing removal) in the vicinity of California sea lions. Sea lions may flush from their haul out site if construction equipment (e.g., excavator, crane, concrete saw) or personnel are present. General construction work associated with the demolition and installation of roadway and railway superstructures has the potential to visually disturb California sea lions.

    Anticipated Effects on Habitat

    The primary potential effects to marine mammal habitat are associated with elevated sound levels produced by construction activities (e.g., pile driving, concrete removal) in the area. However, other potential impacts to the surrounding habitat from physical disturbance are also possible.

    Potential Pile Driving Effects on Prey—Construction activities would produce continuous (i.e., vibratory pile driving) and impulsive (i.e., impact pile driving) sounds. Fish react to sounds that are especially strong and/or intermittent low-frequency sounds. Short duration, sharp sounds can cause overt or subtle changes in fish behavior and local distribution. Hastings and Popper (2005) identified several studies that suggest fish may relocate to avoid certain areas of sound energy. Additional studies have documented effects of pile driving on fish, although several are based on studies in support of large, multiyear bridge construction projects (e.g., Scholik and Yan, 2001, 2002; Popper and Hastings, 2009). Sound pulses at received levels of 160 dB may cause subtle changes in fish behavior. SPLs of 180 dB may cause noticeable changes in behavior (Pearson et al., 1992; Skalski et al., 1992). SPLs of sufficient strength have been known to cause injury to fish and fish mortality. The most likely impact to fish from pile driving activities at the project area would be temporary behavioral avoidance of the area. The duration of fish avoidance of this area after pile driving stops is unknown, but a rapid return to normal recruitment, distribution, and behavior is anticipated. In general, impacts to marine mammal prey species are expected to be minor and temporary due to the short timeframe for the project.

    Effects to Foraging Habitat—Pile installation and removal may temporarily increase turbidity resulting from suspended sediments. Any increases would be temporary, localized, and minimal. The City of Astoria must comply with state water quality standards during these operations by limiting the extent of turbidity to the immediate project area. In general, turbidity associated with pile installation is localized to about a 25-ft (7.62 m) radius around the pile (Everitt et al., 1980). Natural tidal currents and flow patterns in the Columbia River routinely disturb sediments. High volume tidal events can result in hydraulic forces that re-suspend benthic sediments, temporarily elevating turbidity locally. Any temporary increase as a result of the proposed action is not anticipated to measurably exceed levels caused by these normal, natural periods.

    In summary, given the short daily duration of sound associated with individual pile driving and removal events and the relatively small areas being affected, the proposed activities are not likely to have a permanent adverse effect on any fish habitat, or populations of fish species. Thus, any impacts to marine mammal habitat are not expected to cause significant or long-term consequences for individual marine mammals or their populations.

    Estimated Take

    This section provides an estimate of the number of incidental takes proposed for authorization through this IHA, which will inform both NMFS' consideration of whether the number of takes is “small” and the negligible impact determination.

    Harassment is the only type of take expected to result from these activities. Except with respect to certain activities not pertinent here, section 3(18) of the MMPA defines “harassment” as: Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).

    Authorized takes would be by Level B harassment only, for individual marine mammals resulting from exposure to pile driving and construction activities. Based on the nature of the activity and the anticipated effectiveness of the mitigation measures (i.e., shutdown— discussed in detail below in Proposed Mitigation section), Level A harassment is neither anticipated nor proposed to be authorized.

    As described previously, no mortality is anticipated or proposed to be authorized for this activity. Below we describe how the take is estimated.

    Described in the most basic way, we estimate take by considering: (1) Acoustic thresholds above which NMFS believes the best available science indicates marine mammals will be behaviorally harassed or incur some degree of permanent hearing impairment; (2) the area or volume of water that will be ensonified above these levels in a day; (3) the density or occurrence of marine mammals within these ensonified areas; and, (4) and the number of days of activities. Below, we describe these components in more detail and present the proposed take estimate.

    Acoustic Thresholds

    Using the best available science, NMFS has developed acoustic thresholds that identify the received level of underwater sound above which exposed marine mammals would be reasonably expected to be behaviorally harassed (equated to Level B harassment) or to incur PTS of some degree (equated to Level A harassment). Thresholds have also been developed identifying the received level of in-air sound above which exposed pinnipeds would likely be behaviorally harassed.

    Level B Harassment for non-explosive sources—Though significantly driven by received level, the onset of behavioral disturbance from anthropogenic noise exposure is also informed to varying degrees by other factors related to the source (e.g., frequency, predictability, duty cycle), the environment (e.g., bathymetry), and the receiving animals (hearing, motivation, experience, demography, behavioral context) and can be difficult to predict (Southall et al., 2007, Ellison et al., 2011). Based on what the available science indicates and the practical need to use a threshold based on a factor that is both predictable and measurable for most activities, NMFS uses a generalized acoustic threshold based on received level to estimate the onset of behavioral harassment. NMFS predicts that marine mammals are likely to be behaviorally harassed in a manner we consider Level B harassment when exposed to underwater anthropogenic noise above received levels of 120 dB re 1 μPa (rms) for continuous (e.g. vibratory pile-driving, drilling) and above 160 dB re 1 μPa (rms) for non-explosive impulsive (e.g., seismic airguns) or intermittent (e.g., scientific sonar) sources. For in-air sounds, NMFS predicts that pinnipeds exposed above received levels of 100 dB re 20 μPa (rms) will be behaviorally harassed.

    The City's proposed activities include the use of continuous (vibratory pile driving) and impulsive (impact pile driving) sources, and therefore the 120 and 160 dB re 1 μPa (rms) are applicable.

    Level A harassment for non-explosive sources—NMFS' Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing (Technical Guidance, 2016) identifies dual criteria to assess auditory injury (Level A harassment) to five different marine mammal groups (based on hearing sensitivity) as a result of exposure to noise from two different types of sources (impulsive or non-impulsive). The City's proposed activities include the use of impulsive (impact pile driving) and non-impulsive (vibratory pile driving) sources.

    These thresholds were developed by compiling and synthesizing the best available science and soliciting input multiple times from both the public and peer reviewers to inform the final product, and are provided in Table 6 below. The references, analysis, and methodology used in the development of the thresholds are described in NMFS 2016 Technical Guidance, which may be accessed at: https://www.fisheries.noaa.gov/resource/document/underwater-acoustic-thresholds-onset-permanent-and-temporary-threshold-shifts.

    Table 6—Thresholds Identifying the Onset of Permanent Threshold Shift Hearing group PTS onset thresholds Impulsive Non-impulsive Low-Frequency (LF) Cetaceans L pk,flat: 219 dB; L E, LF,24h: 183 dB L E, LF,24h: 199 dB. Mid-Frequency (MF) Cetaceans L pk,flat: 230 dB; L E, MF,24h: 185 dB L E, MF,24h: 198 dB. High-Frequency (HF) Cetaceans L pk,flat: 202 dB; L E, HF,24h: 155 dB L E, HF,24h: 173 dB. Phocid Pinnipeds (PW) (Underwater) L pk,flat: 218 dB; L E, PW,24h: 185 dB L E, PW,24h: 201 dB. Otariid Pinnipeds (OW) (Underwater) L pk,flat: 232 dB; L E, OW,24h: 203 dB L E, OW,24h: 219 dB. * Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for calculating PTS onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level thresholds associated with impulsive sounds, these thresholds should also be considered. Note: Peak sound pressure (Lpk) has a reference value of 1 μPa, and cumulative sound exposure level (LE) has a reference value of 1μPa2s. In this Table, thresholds are abbreviated to reflect American National Standards Institute standards (ANSI 2013). However, peak sound pressure is defined by ANSI as incorporating frequency weighting, which is not the intent for this Technical Guidance. Hence, the subscript “flat” is being included to indicate peak sound pressure should be flat weighted or unweighted within the generalized hearing range. The subscript associated with cumulative sound exposure level thresholds indicates the designated marine mammal auditory weighting function (LF, MF, and HF cetaceans, and PW and OW pinnipeds) and that the recommended accumulation period is 24 hours. The cumulative sound exposure level thresholds could be exceeded in a multitude of ways (i.e., varying exposure levels and durations, duty cycle). When possible, it is valuable for action proponents to indicate the conditions under which these acoustic thresholds will be exceeded. Ensonified Area

    Here, we describe operational and environmental parameters of the activity that will feed into identifying the area ensonified above the acoustic thresholds.

    Level B Harassment

    In-Air Disturbance during General Construction Activities—Level B behavioral disturbance may occur incidental to the use of construction equipment during general construction that is proposed in the dry, above water, or inland within close proximity to the river banks. These construction activities are associated with the removal and construction of the rail superstructures, and the removal of the existing concrete foundations and the 9th Street retaining wall. Possible equipment includes an excavator, crane, dump truck, and chain saw. It is estimated that the sound levels during these activities will range from 78 to 93 dB RMS at 20 m from the sound source, with the loudest airborne noise produced by the use of a concrete saw (Hanan & Associates, 2014). These noise levels are based on acoustic data collected during the City of San Diego Lifeguard Station Demolition and Construction Monitoring project. Using the Spherical Spreading Loss Model (20logR), a maximum sound source level of 93 dB RMS at 20 m, sound levels in-air would attenuate below the 90dB RMS Level B harassment threshold for harbor seals at 28 m, and below the 100 dB RMS threshold for all other pinnipeds at 9 m. Harbor seals are only present in the main river channel and are not expected to occur within 28 m of the activity and are therefore not expected to be harassed by in-air sound. Additionally, the city is proposing a 10 m shutdown zone for all general construction work to prevent injury from physical interaction with equipment. The City would therefore shut down equipment before hauled out sea lions could be acoustically harassed by the sound produced. No Level B harassment is expected to occur due to increased sounds from railway and roadway construction. However, sea lions may be disturbed by the presence of construction equipment and increased human presence during above-water construction.

    Although some piles may potentially be driven or removed in the dry due to tidal conditions, the City is assuming all pile driving and removal will occur in water. The Level B zone of influence for in-water pile driving and removal is greater than the airborne zone of influence so no airborne harassment is requested from pile driving or removal. All harassment due to pile driving and removal is assumed to be in-water.

    In-Water Disturbance during Vibratory Pile Removal—Level B behavioral disturbance may occur incidental to the use of a vibratory hammer due to propagation of underwater noise during the removal of the existing timber substructures. An estimated 255 timber piles will need to be removed to facilitate construction of the three new crossings. It is anticipated that the contractor will need to utilize a vibratory hammer during extraction. Removal via vibratory hammer will result in the greatest amount of underwater noise during construction and will be the farthest reaching extent of aquatic impacts during pile removal activities. We note that some pile removal will occur in the dry (depending on tidal stage); however, we are conservatively assuming all work would occur in-water since it is not feasible to determine how many piles would be removed in the dry. When piles are removed at lower tidal stages, we do not anticipate sound to propagate as far or, in the case of no water, at all.

    Washington State Department of Transportation (WSDOT) monitored underwater noise during the removal of three 12-in timber dolphin piles at Port Townsend (Laughlin, 2011a). Most of the timber piles to be removed in this project are 12-in but some may be up to 14-in. Average noise levels during vibratory removal of the wood piles were measured at 150 dB RMS at 16 m from the source. The Practical Spreading Loss Model (15logR) was used to calculate the in-water Level B Zone of Influence (ZOI) during vibratory pile removal. Using a measurement of 150dB at 16 m, a 1,600 m Level B ZOI (120 dB RMS threshold) is expected for vibratory pile removal activities. Based on the contours of the shoreline and 1,600 m ZOI, a total of 4.5 square kilometers (km2) is expected to be ensonified due to vibratory pile removal (see Figure 10 in application) (Table 7).

    In-Water Disturbance during Impact Pile Driving—Level B behavioral disturbance may occur incidental to the use of an impact hammer due to the propagation of underwater noise during the installation of permanent and temporary steel piles. The City proposes to install a total of 74 24-in and 10 16-in steel piles. The City used the sound source levels from 24-in piles only to estimate the ZOI due to pile driving as the sound source levels from 24-in piles are greater than those of 16-in piles. The City will use the ZOI created by installation of 24-in piles during the installation of 16-in piles to be conservative.

    Based on the most recent WSDOT data, the unmitigated sound pressure level associated with impact pile driving 24-in steel piles is 194 dB RMS at 10 m (WSDOT, 2016). The contractor will be required to use a bubble curtain device during impact pile driving in compliance with the Federal Aid Highway Program (FAHP) Programmatic Biological Opinion which will be utilized for ESA coverage for listed salmonids. Use of a bubble curtain device was assumed to decrease initial sound levels by 10 dB (Reyff 2007), resulting in an initial SPL of 184 dB RMS at 10 m from the source. Using the values from WSDOT in the Practical Spreading Loss Model (15logR), the distance to the 160 dB behavioral disturbance threshold is calculated to be 398 m from the pile when a noise attenuation device is used (Table 7) as opposed to 1,848 m when a device is not used. The use of a noise attenuation device would shrink the distance at which noise exceeds the thresholds by approximately 80 percent, resulting in a significantly smaller area of potential impact. With a 398 m ZOI, a total of 0.40 km2 is expected to be ensonified by impact pile driving (Figure 11 in application).

    Table 7—Inputs and Resulting Distances to Level B Harassment Isopleths Activity SL
  • (distance measured) 1
  • Threshold level Propagation loss coefficient Level B isopleth
  • (m)
  • Level B area
  • (km2)
  • Vibratory pile driving/removal 150 dB (16 m) 120 dB re 1 µPa 15 1,600 4.5 Impact pile driving (24-in piles) 184 dB (10 m) 160 dB re 1 µPa 15 398 0.4 General Construction (in-air) 93 dB (20 m) 100 dB re 20 µPa 20 9 m n/a
    Level A Harassment

    When NMFS Technical Guidance (2016) was published, in recognition of the fact that ensonified area/volume could be more technically challenging to predict because of the duration component in the new thresholds, we developed a User Spreadsheet that includes tools to help predict a simple isopleth that can be used in conjunction with marine mammal density or occurrence to help predict takes. We note that because of some of the assumptions included in the methods used for these tools, we anticipate that isopleths produced are typically going to be overestimates of some degree, which will result in some degree of overestimate of Level A take. However, these tools offer the best way to predict appropriate isopleths when more sophisticated 3D modeling methods are not available, and NMFS continues to develop ways to quantitatively refine these tools, and will qualitatively address the output where appropriate. For stationary sources (such as impact and vibratory pile driving), NMFS User Spreadsheet predicts the closest distance at which, if a marine mammal remained at that distance the whole duration of the activity, it would not incur PTS. Inputs used in the User Spreadsheet, and the resulting isopleths are reported below.

    Table 8—PTS Isopleth Data for Vibratory Pile Removal Source Level (RMS SPL) 150 Activity Duration (hours) within 24-hr period 8 Activity Duration (seconds) 28,800 10 Log (Duration) 44.59 Propagation (xLogR) 15 Distance of source level measurement (m) 16 Table 9—Resulting PTS Isopleths for Vibratory Pile Driving Phocid pinnipeds Otariid pinnipeds SELcum Threshold 210 219 PTS Isopleth to Threshold (meters) 4.9 0.3 Table 10—PTS Isopleth Data for Impact Pile Driving Source Level (Single Strike/shot SEL) 168 (a) Number of strikes in 1 h OR (b) Number of strikes per pile 250 (a) Activity Duration (h) within 24-h period OR (b) Number of piles per day 4 Propagation (xLogR) 15 Distance of single strike SEL measurement (meters) 10 Table 11—Resulting PTS Isopleths for Impact Pile Driving Phocid pinnipeds Otariid pinnipeds SELcum- Threshold 185 203 PTS Isopleth to Threshold (m) 53.4 3.9

    The resulting small PTS isopleths assume an animal would remain stationary at that distance for the duration of the activity. Given the extended durations and due to the relatively small distances to PTS onset from each activity, and the mitigation measures (See “Proposed Mitigation”) proposed by the City, Level A take is neither expected nor authorized.

    Marine Mammal Occurrence

    In this section we provide the information about the presence, density, or group dynamics of marine mammals that will inform the take calculations.

    The City used species counts from 2000-2014 taken by WDFW from the South Jetty at the mouth of the Columbia River to determine the number of pinnipeds that may be in the vicinity of the project. Although the South Jetty is over 10 miles away from the project site, WDFW monthly counts are the best available data for potential marine mammal occurrence near the project site. Numbers of California sea lions hauled out at the South Jetty ranged from 1 to 1,214, with a general trend of lower numbers in the summer and winter, and peak counts in the fall and spring. Monthly counts of Steller sea lions ranged from 177 to 1,663, with the highest numbers occurring in late fall and winter. Counts of harbor seals were not conducted every month, but the numbers of harbor seals at the South Jetty ranged from one to 57 seals.

    Take Calculation and Estimation

    Here we describe how the information provided above is brought together to produce a quantitative take estimate.

    Although three species of pinniped occur in the vicinity of the project, they do not occur in equal numbers. Harbor seals and Steller sea lions are only known to occur out in the river channel and would only be harassed if they are transiting through the Zone of Influence (1,600 m for vibratory pile removal, 398 m for impact pile driving). Harbor seals and Steller sea lions would only be harassed during the in-water work period (November through February). California sea lions are the most commonly seen in the area, and are known to haul out on the riverbanks and structures near the bridges. California sea lions may be harassed by underwater sound resulting from vibratory pile removal and impact pile driving (at the distances listed above) as well as airborne sound resulting from roadway and railway demolition and construction. Using the highest sound source (concrete saw, 93 dBRMS re: 20 µPa at 20 m), the isopleth to Level B harassment from airborne noise (100 dB re: 20 µPa) is 9 m. The City is proposing a 10 m shutdown zone during all railway and roadway above-water construction to prevent injury from physical interaction with equipment (see “Proposed Mitigation”). The City would therefore shut down equipment before sea lions would be acoustically harassed by the sound produced and no Level B acoustic harassment would occur. However, the City anticipates that California sea lions hauled out on the banks of the river in the vicinity of the construction work may be visually disturbed by the presence of construction equipment and may flush, resulting in Level B take. Therefore, the City is requesting take of California sea lions during the above-water work period (October 2018 and March-April 2019).

    While harbor seals and Steller sea lions would only be harassed during the in-water work period (November through February), California sea lions may be harassed over the entire duration of the project (October through April). To determine the estimated pinniped exposure and take, average monthly counts for each species from the South Jetty haulout (Table 12) were multiplied by the duration (months) of their expected exposure (Table 13).

    Table 12—Average Counts of Pinnipeds at South Jetty Haulout Month Monthly average
  • number of
  • California
  • sea lions
  • Monthly average
  • numbers of
  • harbor seals
  • Monthly
  • average
  • number of
  • Steller sea lions
  • October 508 N/A N/A November 1,214 24 1,663 December 725 57 1,112 January 10 24 249 February 28 1 259 March 17 N/A N/A April 99 N/A N/A Average over course of project 372 27 821

    For example, California sea lion take was estimated by multiplying the average monthly count at the South Jetty haulout from October through April (372) by the number of months of project activity (7) for a total of 2,604.

    Table 13—Estimated Pinniped Exposure and Take Average count per month In-air months In-water months Total months of impacts Total take Percent of stock California Sea Lion 1 372 3 4 7 2,604 0.88 Steller Sea Lion 2 821 0 4 4 3,284 7.9 Harbor Seal 2 27 0 4 4 108 0.44 1 Average monthly counts from October through April at the South Jetty (WDFW 2014). 2 Average monthly counts from November through February at the South Jetty (WDFW 2014). Proposed Mitigation

    In order to issue an IHA under section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, “and other means of effecting the least practicable impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking” for certain subsistence uses (latter not applicable for this action). NMFS regulations require applicants for incidental take authorizations to include information about the availability and feasibility (economic and technological) of equipment, methods, and manner of conducting such activity or other means of effecting the least practicable adverse impact upon the affected species or stocks and their habitat (50 CFR 216.104(a)(11)).

    In evaluating how mitigation may or may not be appropriate to ensure the least practicable adverse impact on species or stocks and their habitat, as well as subsistence uses where applicable, we carefully consider two primary factors:

    (1) The manner in which, and the degree to which, the successful implementation of the measure(s) is expected to reduce impacts to marine mammals, marine mammal species or stocks, and their habitat. This considers the nature of the potential adverse impact being mitigated (likelihood, scope, range). It further considers the likelihood that the measure will be effective if implemented (probability of accomplishing the mitigating result if implemented as planned) the likelihood of effective implementation (probability implemented as planned); and

    (2) The practicability of the measures for applicant implementation, which may consider such things as cost, impact on operations, and, in the case of a military readiness activity, personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity.

    Mitigation for Marine Mammals and Their Habitat

    General Construction Measures—All construction activities will be performed in accordance with the current Oregon Department of Transportation (ODOT) Standard Specifications for Construction, the Contract Plans, and the Project Special Provisions. In addition, the following general construction measures will be adhered to.

    • All work below the HMT will be completed during the ODFW prescribed IWWP of November 1 through February 28.

    • All work shall be performed according to the requirements and conditions of the regulatory permits issued by federal, state, and local governments. Seasonal restrictions, i.e., work windows, will be applied to the Project to avoid or minimize potential impacts to listed or proposed species based on agreement with, and the regulatory permits issued by Department of State Lands, and USACE in consultation with NMFS. The City will comply with all stipulations from the FAHP Biological Opinion for salmonids (i.e., using air bubble curtains).

    • The City will have an inspector onsite during construction. The role of the inspector is to ensure compliance with the construction contract and other permits and regulations. The onsite inspector will also perform marine mammal monitoring duties when protected species observers (PSOs) are not onsite (See Proposed Monitoring section).

    • To ensure no contaminants enter the water, mobile heavy equipment will be stored in a staging area at least 150 ft from the river or in an isolated hard zone. Equipment will be inspected daily for fluid leaks before leaving the staging area. Stationary equipment operated within 150 ft of the river will be maintained and protected to prevent leaks and spills. Erosion and sediment control BMPs will be installed prior to initiating and construction activities.

    • The contractor will be responsible for the preparation of a Pollution Control Plan (PCP). The PCP will designate a professional on-call spill response teams, and identify all contractor activities, hazardous substances used, and wastes generated. The PCP will describe how hazardous substances and wastes will be stored, used, contained, monitored, disposed of, and documented.

    Pile Removal and Installation BMPs—The following mitigation measures will be implemented to minimize disturbance during pile removal and installation activities.

    • An air bubble system shall be employed during impact installation unless the piles are driven on dry areas.

    • The contractor will implement a soft-start procedure for impact pile driving activities. The objective of a soft-start is to provide a warning and/or give animals in close proximity to pile driving a chance to leave the area prior to an impact driver operating at full capacity, thereby exposing fewer animals to loud underwater and airborne sounds. A soft-start procedure will be used at the beginning of each day that pile installation activities are conducted (i.e., for impact driving, an initial set of three strikes would be made by the hammer at 40 percent energy, followed by a one minute wait period, then two subsequent three-strike sets at 40 percent energy, with one minute waiting periods, before initiating continuous driving).

    • Monitoring of marine mammals shall take place starting 30 minutes before construction begins until 30 minutes after construction ends (See Proposed Monitoring).

    • Before commencement of vibratory pile removal activities, the City will establish a 15 m Level A Exclusion Zone.

    • Before commencement of impact pile driving activities, the City will establish a 53.4 m Level A Exclusion Zone.

    • Before commencement of above water construction activities, the City will establish a 10 m Level A Exclusion Zone to prevent injury from physical interaction with construction equipment.

    • The City shall shut down operations if a marine mammal is sighted within or approaching the Level A Exclusion Zone until the marine mammal is sighted moving away from the exclusion zone, or if not sighted for 15 minutes after the shutdown. The City will also shut down to prevent Level B takes when the take of a pinniped species is approaching the authorized take limits.

    • If the exclusion zone is obscured by poor lighting conditions, pile driving will not be initiated until the entire zone is visible.

    • In-water work will only commence once observers have declared the Exclusion Zone clear of marine mammals.

    Based on our evaluation of the applicant's proposed measures, NMFS has preliminarily determined that the proposed mitigation measures provide the means effecting the least practicable impact on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.

    Proposed Monitoring and Reporting

    In order to issue an IHA for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth, “requirements pertaining to the monitoring and reporting of such taking.” The MMPA implementing regulations at 50 CFR 216.104 (a)(13) indicate that requests for authorizations must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the proposed action area. Effective reporting is critical both to compliance as well as ensuring that the most value is obtained from the required monitoring.

    Monitoring and reporting requirements prescribed by NMFS should contribute to improved understanding of one or more of the following:

    • Occurrence of marine mammal species or stocks in the area in which take is anticipated (e.g., presence, abundance, distribution, density).

    • Nature, scope, or context of likely marine mammal exposure to potential stressors/impacts (individual or cumulative, acute or chronic), through better understanding of: (1) Action or environment (e.g., source characterization, propagation, ambient noise); (2) affected species (e.g., life history, dive patterns); (3) co-occurrence of marine mammal species with the action; or (4) biological or behavioral context of exposure (e.g., age, calving or feeding areas).

    • Individual marine mammal responses (behavioral or physiological) to acoustic stressors (acute, chronic, or cumulative), other stressors, or cumulative impacts from multiple stressors.

    • How anticipated responses to stressors impact either: (1) Long-term fitness and survival of individual marine mammals; or (2) populations, species, or stocks.

    • Effects on marine mammal habitat (e.g., marine mammal prey species, acoustic habitat, or other important physical components of marine mammal habitat).

    • Mitigation and monitoring effectiveness.

    Proposed Monitoring

    (1) Protected Species Observers: The City will employ qualified PSOs to monitor the extent of the Region of Activity for marine mammals. Qualifications for marine mammal observers include:

    a. Visual acuity in both eyes (correction is permissible) sufficient for discerning moving targets at the water's surface with ability to estimate target size and distance. Use of binoculars is necessary to correctly identify the target.

    b. Advanced education (at least some college level course work) in biological science, wildlife management, mammalogy, or related fields (bachelor's degree or higher is preferred but not required).

    c. Experience or training in the field identification of marine mammals (cetaceans and pinnipeds).

    d. Sufficient training, orientation, or experience with the construction operation to provide for personal safety during observations.

    e. Ability to communicate orally, by radio or in person, with project personnel to provide real time information on marine mammals observed in the area as necessary.

    f. Experience and ability to conduct field observations and collect data according to assigned protocols (this may include academic experience).

    g. Writing skills sufficient to prepare a report of observations that would include such information as the number and type of marine mammals observed; the behavior of marine mammals in the project area; dates and times when observations were conducted; dates and times when in-water construction activities were conducted; and dates and times when marine mammals were present at or within the defined Region of Activity.

    (2) Monitoring Schedule: PSOs shall be present onsite during IWW construction activities as follows:

    a. During vibratory pile removal activities:

    i. Two NMFS qualified observers will be onsite the first day of removal at each bridge, one NMFS qualified observer will be onsite every third day thereafter.

    ii. One NMFS qualified observer will be stationed at the best practicable land-based vantage point to observe the downstream portion of the disturbance zone, and the other positioned at the best practicable land-based vantage point to monitor the upstream portion of the disturbance zone.

    iii. When PSOs are not onsite, the contractor's onsite inspector will be trained in species identification and monitoring protocol, and will be onsite during all pile removal activities to ensure that no species enter the 15 m Exclusion Zone.

    b. During pile driving activities:

    i. Two NMFS qualified observers will be onsite the first two days of pile driving at each bridge, and every third day thereafter.

    ii. One NMFS observer will be stationed at the best practicable land-based vantage point to observe the downstream portion of the disturbance and exclusion zones, and the other positioned at the best practicable land-based vantage point to monitor the upstream portion of the disturbance and exclusion zones.

    iii. When PSOs are not onsite, the contractor's onsite inspector will be trained in species identification and monitoring protocol, and will be onsite during all pile driving activities to ensure that no species enter the Exclusion Zone.

    c. During substructure demolition activities (not including pile driving/removal) and superstructure demolition and construction activities:

    i. One NMFS qualified observer will be onsite once a week to monitor the Exclusion Zone within 10 m of the construction site.

    ii. When PSO is not on-site, the contractor's inspector will be trained in species identification and monitoring protocol, and will be onsite during all construction activities to ensure that no species enter the 10 m Exclusion Zone during superstructure demolition and construction activities.

    (3) Monitoring Protocols: PSOs shall monitor marine mammal presence within the Level A Exclusion Zone and Level B ZOIs per the following protocols:

    a. A range finder or hand-held global positioning system device will be used by PSOs to ensure that the defined Exclusion Zones are fully monitored and the Level B ZOIs monitored to the best extent practicable.

    b. A 30-minute pre-construction marine mammal monitoring period will be required before the first pile driving or pile removal of the day. A 30-minute post-construction marine mammal monitoring period will be required after the last pile driving or pile removal of the day. If the contractor's personnel take a break between subsequent pile driving or pile removal for more than 30 minutes, then additional pre-construction marine mammal monitoring will be required before the next start-up of pile driving or pile removal.

    c. If marine mammals are observed, the following information will be documented:

    i. Species of observed marine mammals;

    ii. Number of observed marine mammal individuals;

    iii. Life stages of marine mammals observed;

    iv. Behavioral habits, including feeding, of observed marine mammals, in both presence and absence of activities;

    v. Location within the Region of Activity; and

    vi. Animals' reaction (if any) to pile driving activities or other construction-related stressors including:

    1. Impacts to the long-term fitness of the individual animal, if any

    2. Long-term impacts to the population, species, or stock (e.g., through effects on annual rates of recruitment or survival), if any

    vii. Overall effectiveness of mitigation measures

    d. During vibratory pule removal and impact driving, qualified PSOs will monitor the Level B ZOIs from the best practicable land-based vantage point to observe the downstream and upstream portions of the disturbance zone according to the above schedule.

    e. PSOs shall use binoculars to monitor the Region of Activity.

    Reporting

    (1) The City shall provide NMFS with a draft monitoring report within 90 days of the conclusion of the construction work. This report shall detail the monitoring protocol, summarize the data recorded during monitoring, and estimate the number of marine mammals that may have been harassed.

    (2) If comments are received from the NMFS West Coast Regional Administrator or NMFS Office of Protected Resources on the draft report, a final report shall be submitted to NMFS within 30 days thereafter. If no comments are received from NMFS, the draft report will be considered to be the final report.

    (3) In the unanticipated event that the construction activities clearly cause the take of a marine mammal in a manner prohibited by the NMFS authorization, such as an injury, serious injury, or mortality (e.g., gear interaction), the City shall immediately cease all operations and immediately report the incident to the Chief, Permits and Conservation Division, Office of Protected Resources, and the West Coast Regional Stranding Coordinators. The report must include the following information:

    a. Time, date, and location (latitude/longitude) of the incident;

    b. Description of the incident;

    c. Status of all sound source use in the 24 hours preceding the incident;

    d. Environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, visibility, and water depth);

    e. Description of marine mammal observations in the 24 hours preceding the incident;

    f. Species identification or description of the animal(s) involved, including life stage and the fate of the animal(s); and

    g. Photographs or video footage of the animal(s) (if equipment is available).

    Activities shall not resume until NMFS is able to review the circumstances of the prohibited take. NMFS shall work with the City to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. Activities may not be resumed until notified by NMFS via letter, email, or telephone.

    (4) In the event that the City discovers an injured or dead marine mammal, and the lead PSO determines that the cause of injury or death is unknown and the death is relatively recent (i.e., in less than a moderate state of decay as described in the next paragraph), the City will immediately report the incident to the Chief, Permits and Conservation Division, Office of Protected Resources, NMFS, and the West Coast Regional Stranding Coordinators. The report must contain the same information identified above. Activities may continue while NMFS reviews the circumstances of the incident. NMFS will work with the City to determine whether modifications in the activities are appropriate.

    (5) In the event that the City discovers an injured or dead marine mammal, and the lead PSO determines that the injury or death is not associated with or related to the activities authorized in the IHA (e.g., previously wounded animal, carcass with moderate to advanced decomposition, or scavenger damage), the City shall report the incident to the Chief, Permits and Conservation Division, Office of Protected Resources, NMFS, and the West Coast Regional Stranding Coordinators, within 24 hours of the discovery. The City shall provide photographs or video footage (if available) or other documentation of the stranded animal sighting to NMFS and the Marine Mammal Stranding Network. The City can continue its operations under such a case.

    Negligible Impact Analysis and Determination

    NMFS has defined negligible impact as “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival” (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (i.e., population-level effects). An estimate of the number of takes alone is not enough information on which to base an impact determination. In addition to considering estimates of the number of marine mammals that might be “taken” through harassment, NMFS considers other factors, such as the likely nature of any responses (e.g., intensity, duration), the context of any responses (e.g., critical reproductive time or location, migration), as well as effects on habitat, and the likely effectiveness of the mitigation. We also assess the number, intensity, and context of estimated takes by evaluating this information relative to population status. Consistent with the 1989 preamble for NMFS's implementing regulations (54 FR 40338; September 29, 1989), the impacts from other past and ongoing anthropogenic activities are incorporated into this analysis via their impacts on the environmental baseline (e.g., as reflected in the regulatory status of the species, population size and growth rate where known, ongoing sources of human-caused mortality, or ambient noise levels).

    To avoid repetition, the discussion of our analyses applies to all three species proposed to be taken by this project (California sea lion, Steller sea lion, and harbor seal), given that the anticipated effects of this activity on these different marine mammal stocks are expected to be similar. There is little information about the nature or severity of the impacts, or the size, status, or structure of any of these species or stocks that would lead to a different analysis for this activity.

    Authorized takes are expected to be limited to short-term Level B harassment. Marine mammals present in the vicinity of the action area and taken by Level B harassment would most likely show overt brief disturbance (startle reaction, flushing) and avoidance of the area from elevated noise levels during pile removal and installation and railway superstructure construction. The project is not expected to have a significant adverse effect on affected marine mammal habitat, as discussed in detail in the “Anticipated Effects on Marine Mammal Habitat” section. There is no critical habitat in the vicinity of the project and the project activities would not permanently modify existing marine mammal habitat. The impacts to marine mammal habitat from the proposed construction actions are expected to be temporary and include increased human activity and noise levels, minimal impacts to water quality, and negligible changes in prey availability near the individual bridge sites. Pinnipeds in the vicinity are likely habituated to high levels of human activity as the Astoria waterfront is a highly developed area. The project may benefit marine mammal habitat by removing several hundred treated timber piles from the Columbia River.

    Impacts to exposed pinnipeds are expected to be minor and temporary. The area likely impacted by the construction is relatively small compared to the available habitat in the river. For California and Steller sea lions, sub-adult and adult males could be harassed during construction activities. For harbor seals, sub-adult and adult males and/or females could be harassed during construction activities. The project occurs outside of known pupping periods for all species, and there are no known rookeries within the region of activity. No pups or breeding adults are expected to be affected by the project activities.

    In summary and as described above, the following factors primarily support our preliminary determination that the impacts resulting from this activity are not expected to adversely affect the species or stock through effects on annual rates of recruitment or survival:

    • No mortality is anticipated or authorized;

    • No injury or serious injury is anticipated or authorized;

    • In-water work is limited to a four-month period, and likely only 80 days within that time;

    • No permanent effects to marine mammal habitat or prey is expected;

    • Marine mammals are currently exposed to high human use area and are likely habituated to disturbance;

    • Any impacts from the project are expected to result in short-term, mild behavioral reactions such as avoidance or flushing;

    • There are no known important feeding, pupping, or other areas of biological significance in the project area; and

    • The project affects only a small percentage of each stock of marine mammal affected, and only in a limited portion of their overall range.

    Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the proposed monitoring and mitigation measures, NMFS preliminarily finds that the total marine mammal take from the proposed activity will have a negligible impact on all affected marine mammal species or stocks.

    Small Numbers

    As noted above, only small numbers of incidental take may be authorized under section 101(a)(5)(D) of the MMPA for specified activities other than military readiness activities. The MMPA does not define small numbers and so, in practice, where estimated numbers are available, NMFS compares the number of individuals taken to the most appropriate estimation of abundance of the relevant species or stock in our determination of whether an authorization is limited to small numbers of marine mammals. Additionally, other qualitative factors may be considered in the analysis, such as the temporal or spatial scale of the activities.

    The number of each species proposed to be taken as a result of this project is less than 10 percent of the total stock. In fact, the numbers of California sea lions and harbor seals is less than one percent of their respective stock abundance estimates. Additionally, the number of takes requested is based on the number of estimated exposures, not necessarily the number of individuals exposed. Pinnipeds may remain in the general area of the project sites and the same individuals may be harassed multiple times over multiple days, rather than numerous individuals harassed once.

    Based on the analysis contained herein of the proposed activity (including the proposed mitigation and monitoring measures) and the anticipated take of marine mammals, NMFS preliminarily finds that small numbers of marine mammals will be taken relative to the population size of the affected species or stocks.

    Unmitigable Adverse Impact Analysis and Determination

    There are no relevant subsistence uses of the affected marine mammal stocks or species implicated by this action. Therefore, NMFS has preliminarily determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.

    Endangered Species Act (ESA)

    Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 U.S.C. 1531 et seq.) requires that each Federal agency insure that any action it authorizes, funds, or carries out is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of designated critical habitat. To ensure ESA compliance for the issuance of IHAs, NMFS consults internally, in this case with the NMFS West Coast Region Protected Resources Division Office, whenever we propose to authorize take for endangered or threatened species.

    No incidental take of ESA-listed species is proposed for authorization or expected to result from this activity. Therefore, NMFS has determined that formal consultation under section 7 of the ESA is not required for this action.

    Proposed Authorization

    As a result of these preliminary determinations, NMFS proposes to issue an IHA to the City of Astoria for conducting waterfront bridge removal and replacement in Astoria, OR from October 1, 2018 to September 30, 2019, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated. This section contains a draft of the IHA itself. The wording contained in this section is proposed for inclusion in the IHA (if issued).

    Incidental Harassment Authorization

    The City of Astoria (City) is hereby authorized under section 101(a)(5)(D) of the Marine Mammal Protection Act (MMPA; 16 U.S.C. 1371(a)(5)(D)) to harass marine mammals incidental to the Waterfront Bridges Replacement Project in Astoria, Oregon, when adhering to the following terms and conditions.

    1. This Incidental Harassment Authorization (IHA) is valid from October 1, 2018 to September 30, 2019.

    2. This IHA is valid only for construction activities associated with the Waterfront Bridges Replacement Project in Astoria, Oregon.

    3. General Conditions:

    (a) A copy of this IHA must be in the possession of the City, its designees, and work crew personnel operating under the authority of this IHA.

    (b) The species authorized for taking are the California sea lion (Zalophus californianus), Steller sea lion (Eumetopias jubatus), and Pacific harbor seal (Phoca vitulina richardii).

    (c) The taking, by Level B harassment only, is limited to the species listed in condition 3(b). The authorized take numbers are shown below and in Table 1:

    i. 2,604 California sea lions ii. 3,284 Steller sea lions iii. 108 Pacific harbor seals

    (d) The taking by injury (Level A harassment), serious injury, or death of any of the species listed in condition 3(b) of the Authorization or any taking of any other species of marine mammal is prohibited and may result in the modification, suspension, or revocation of this IHA.

    (e) The City shall conduct briefings between construction supervisors and crews, marine mammal monitoring team, acoustical monitoring team, and City staff prior to the start of all construction work, and when new personnel join the work, in order to explain responsibilities, communication procedures, marine mammal monitoring protocol, and operational procedures.

    4. Mitigation Measures

    The holder of this Authorization is required to implement the following mitigation measures:

    (a) General Construction Measures

    i. All construction activities shall be performed in accordance with the current ODOT Standard Specifications for Construction, the Contract Plans, and the Project Special Provisions. In addition, the following general construction measures will be adhered to:

    a. All work shall be performed according to the requirements and conditions of the regulatory permits issued by federal, state, and local governments. Seasonal restrictions, i.e., work windows, shall be applied to the Project to avoid or minimize potential impacts to listed or proposed species based on agreement with, and the regulatory permits issued by Department of State Lands, and USACE in consultation with NMFS. The City shall comply with all stipulations from the FAHP Biological Opinion for salmonids (i.e., using air bubble curtains).

    b. The City shall have an inspector onsite during construction. The role of the inspector is to ensure compliance with the construction contract and other permits and regulations. The onsite inspector shall also perform marine mammal monitoring duties when protected species observers (PSOs) are not onsite (See Proposed Monitoring section).

    c. To ensure no contaminants enter the water, mobile heavy equipment shall be stored in a staging area at least 150 ft from the river or in an isolated hard zone. Equipment shall be inspected daily for fluid leaks before leaving the staging area. Stationary equipment operated within 150 ft of the river shall be maintained and protected to prevent leaks and spills. Erosion and sediment control BMPs shall be installed prior to initiating and construction activities.

    d. All work below the Highest Mean Tide (HMT) shall be completed during the ODFW prescribed IWWP of November 1 through February 28.

    e. The contractor shall be responsible for the preparation of a Pollution Control Plan (PCP). The PCP shall designate a professional on-call spill response team, and identify all contractor activities, hazardous substances used, and wastes generated. The PCP shall describe how hazardous substances and wastes will be stored, used, contained, monitored, disposed of, and documented.

    (b) Pile Removal and Installation

    i. The following mitigation measures shall be implemented to minimize disturbance during pile removal and installation activities:

    a. An air bubble system shall be employed during impact installation unless the piles are driven on dry areas.

    b. The contractor shall implement a soft-start procedure for impact pile driving activities. The objective of a soft-start is to provide a warning and/or give animals in close proximity to pile driving a chance to leave the area prior to an impact driver operation at full capacity, thereby exposing fewer animals to loud underwater and airborne sounds. A soft-start procedure will be used at the beginning of each day that pile installation activities are conducted. For impact driving, an initial set of three strikes would be made by the hammer at 40 percent energy, followed by a one minute wait period, the two subsequent three-strike sets at 40 percent energy, with one minute waiting periods, before initiating continuous driving.

    c. Monitoring of marine mammals shall take place starting 30 minutes before construction begins until 30 minutes after construction ends.

    d. Before commencement of non-pulse (vibratory) pile removal activities, the contractor shall establish a 15 m Level A Exclusion Zone (Table 2).

    e. Before commencement of impact pile driving activities, the contractor shall establish a 53.4 m Level A Exclusion Zone (Table 2).

    f. Before commencement of above-water construction activities, the contractor shall establish a 10 m Level A Exclusion Zone (Table 2).

    g. Prior to initiating in-water pile driving, pile removal, and concrete removal activities, the contractor will establish Level B ZOIs (Table 2):

    1. The Level B ZOI for all pile removal activities shall be established out to a distance of 1,600 m from the pile.

    2. The Level B ZOI for all pile driving activities shall be established out to a distance of 398 m from the pile.

    3. The Level B ZOI during rail superstructure demolition and construction shall be established out to a distance of 28 m from the construction area.

    4. If a marine mammal enters the Level B ZOI, but does not enter the Level A Exclusion Zone, a “take” shall be recorded and the work shall be allowed to proceed without cessation. Marine mammal behavior will be monitored and documented.

    5. The City shall shut down operations if a marine mammal is sighted within or approaching the Level A Exclusion Zone until the marine mammal is sighted moving away from the exclusion zone, or if not sighted for 15 minutes after the shutdown. The City shall also shut down to prevent Level B takes when the take of a pinnipeds species is approaching the authorized take limits.

    h. If the exclusion zone is obscured by poor lighting conditions, pile driving shall not be initiated until the entire zone is visible.

    i. In-water work shall only commence once observers have declared the Exclusion Zone clear of marine mammals.

    j. A monitoring plan shall be implemented as described below. This plan includes Exclusion Zones and specific procedures in the event a marine mammal is encountered.

    5. Monitoring

    The holder of this Authorization is required to conduct marine mammal monitoring during construction activities.

    (a) Protected Species Observers: The contractor shall employ qualified Protected Species Observers (PSOs) to monitor the extent of the Region of Activity for marine mammals. Qualifications for marine mammal observers include:

    i. Visual acuity in both eyes (correction is permissible) sufficient for discerning moving targets at the water's surface with ability to estimate target size and distance. Use of binoculars is necessary to correctly identify the target.

    ii. Advanced education (at least some college level coursework) in biological science, wildlife management, mammalogy, or related fields (bachelor's degree or higher is preferred but not required).

    iii. Experience or training in the field of identification of marine mammals (cetaceans and pinnipeds).

    iv. Sufficient training, orientation, or experience with the construction operation to provide for personal safety during observations.

    v. Ability to communicate orally, by radio or in person, with project personnel to provide real time information on marine mammals observed in the area as necessary.

    vi. Experience and ability to conduct field observations and collect data according to assigned protocols (this may include academic experience).

    vii. Writing skills sufficient to prepare a report of observations that would include such information as the number and type of marine mammals observed; the behavior of marine mammals in the project area; dates and times when observations were conducted; dates and times when in-water construction activities were conducted; and dates and times when marine mammals were present at or within the defined Region of Activity.

    ii. Monitoring Schedule: PSOs shall be present onsite during in-water construction activities as follows:

    i. During vibratory pile removal activities:

    a. Two NMFS qualified observers shall be onsite the first day of removal at each bridge, one NMFS qualified observer shall be onsite every third day thereafter.

    b. One PSO observer shall be stationed at the best practicable land-based vantage point to observe the downstream portion of the disturbance zone, and the other positioned at the best practicable land-based vantage point to monitor the upstream portion of the disturbance zone.

    c. When PSOs are not onsite, the contractor's onsite inspector shall be trained in species identification and monitoring protocol, and shall be onsite during all pile removal activities to ensure than no species enter the 15 m Exclusion Zone.

    ii. During pile driving activities:

    a. Two NMFS qualified observers shall be onsite the first two days of pile driving at each bridge, and every third day thereafter.

    b. One PSO shall be stationed at the best practicable land-based vantage point to observe the downstream portion of the disturbance and exclusion zones, and the other positioned at the best practicable land-based vantage point to monitor the upstream portion of the disturbance and exclusion zones.

    c. When PSOs are not onsite, contractor's onsite inspector shall be trained in species identification and monitoring protocol, and shall be onsite during all pile driving activities to ensure that no species enter the 53.4 m exclusion zone.

    iii. During substructure demolition activities (not including pile removal) and superstructure demolition and construction activities:

    a. One PSO shall be onsite once a week to monitor the Exclusion Zone within 10 m of the construction site.

    b. When the PSO is not onsite, contractor's inspector shall be trained in species identification and monitoring protocol, and shall be onsite during all construction activities to ensure that no species enter the 10 m Exclusion Zone during superstructure demolition and construction activities.

    iii. Monitoring Protocols: PSOs shall monitor marine mammal presence within the Level A Exclusion Zone and Level B ZOIs per the following protocols:

    i. A range finder or hand-held global positioning system device shall be used by PSOs to ensure that the defined Exclusion Zones are fully monitored and the Level B ZOIs monitored to the best extent practicable.

    ii. A 30-minute pre-construction marine mammal monitoring period shall be required before the first pile driving or pile removal of the day. A 30-minute post-construction marine mammal monitoring period shall be required after the last pile driving or pile removal of the day. If the contractor's personnel take a break between subsequent pile driving or pile removal for more than 30 minutes, then additional pre-construction marine mammal monitoring shall be required before the next start-up of pile driving or pile removal.

    iii. If marine mammals are observed, the following information shall be documented:

    a. Species of observed marine mammals;

    b. Number of observed marine mammal individuals;

    c. Life stages of marine mammals observed;

    d. Behavioral habits, including feeding, of observed marine mammals, in both presence and absence of activities;

    e. Location within the Region of Activity; and

    f. Animals' reaction (if any) to pile driving activities or other construction-related stressors including:

    1. Impacts to the long-term fitness of the individual animal, if any

    2. Long-term impacts to the population, species, or stock (e.g., through effects on annual rates of recruitment or survival), if any

    g. Overall effectiveness of mitigation measures.

    iv. During vibratory rule removal and impact driving, qualified PSOs shall monitor the Level B ZOIs from the best practicable land-based vantage point to observe the downstream and upstream portions of the disturbance zone according to the above schedule.

    v. PSOs shall use binoculars to monitor the Region of Activity.

    6. Reporting

    The holder of this Authorization is required to:

    (a) Submit a draft report on all monitoring conducted under the IHA within 90 calendar days of the completion of construction work. This report must contain the informational elements described in the Monitoring Plan, at minimum, and shall also include:

    i. Detailed information about any implementation of shutdowns, including the distance of animals to the pile and description of specific actions that ensued and resulting behavior of the animal, if any.

    (b) If comments are received from the NMFS West Coast Regional Administrator or NMFS Office of Protected Resources on the draft report, a final report shall be submitted to NMFS within 30 days thereafter. If no comments are received from NMFS, the draft report will be considered to be the final report.

    (c) Reporting injured or dead marine mammals:

    i. In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner prohibited by this IHA, such as an injury (Level A harassment), serious injury, or mortality, the City shall immediately cease the specified activities and report the incident to the Office of Protected Resources (301-427-8401), NMFS, and the West Coast Regional Stranding Coordinator (206-526-4747), NMFS. The report must include the following information:

    i. Time and date of the incident;

    ii. Description of the incident;

    iii. Environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, and visibility);

    iv. Description of all marine mammal observations and active sound source use in the 24 hours preceding the incident;

    v. Species identification or description of the animal(s) involved;

    vi. Fate of the animal(s); and

    vii. Photographs or video footage of the animal(s).

    Activities shall not resume until NMFS is able to review the circumstances of the prohibited take. NMFS will work with the City to determine what measures are necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. The City may not resume their activities until notified by NMFS.

    ii. In the event that the City discovers an injured or dead marine mammal, and the lead observer determines that the cause of the injury or death is unknown and the death is relatively recent (e.g., in less than a moderate state of decomposition), the City shall immediately report the incident to the Office of Protected Resources, NMFS, and the West Coast Regional Stranding Coordinator, NMFS.

    The report must include the same information identified in 6(b)(i) of this IHA. Activities may continue while NMFS reviews the circumstances of the incident. NMFS will work with the City to determine whether additional mitigation measures or modifications to the activities are appropriate.

    iii. In the event that the City discovers an injured or dead marine mammal, and the lead observer determines that the injury or death is not associated with or related to the activities authorized in the IHA (e.g., previously wounded animal, carcass with moderate to advanced decomposition, or scavenger damage), the City shall report the incident to the Office of Protected Resources, NMFS, and the West Coast Regional Stranding Coordinator, NMFS, within 24 hours of the discovery. The City shall provide photographs or video footage or other documentation of the stranded animal sighting to NMFS.

    This Authorization may be modified, suspended or withdrawn if the holder fails to abide by the conditions prescribed herein, or if NMFS determines the authorized taking is having more than a negligible impact on the species or stock of affected marine mammals.

    Table 1—Authorized Take Numbers, by Species Species Authorized take Harbor seal (Phoca vitulina) 108 California sea lion (Zalophus californianus) 2,604 Steller sea lion (Eumetopias jubatus) 3,284 Table 2—Minimum Radial Distance to Shutdown Zones Activity Level B Zone of Influence Level A
  • Exclusion
  • Zone
  • Vibratory pile removal 1,600 m 15 m. Impact pile driving 398 m 53.4 m. Roadway and railway demolition and construction 28 m (harbor seals) 9 m (sea lions) 10 m.
    Request for Public Comments

    We request comment on our analyses, the proposed authorization, and any other aspect of this Notice of Proposed IHA for the proposed bridge replacement project. We also request comment on the potential for renewal of this proposed IHA as described in the paragraph below. Please include with your comments any supporting data or literature citations to help inform our final decision on the request for MMPA authorization.

    On a case-by-case basis, NMFS may issue a second one-year IHA without additional notice when (1) another year of identical or nearly identical activities as described in the Specified Activities section is planned or (2) the activities would not be completed by the time the IHA expires and a second IHA would allow for completion of the activities beyond that described in the Dates and Duration section, provided all of the following conditions are met:

    • A request for renewal is received no later than 60 days prior to expiration of the current IHA.

    • The request for renewal must include the following:

    (1) An explanation that the activities to be conducted beyond the initial dates either are identical to the previously analyzed activities or include changes so minor (e.g., reduction in pile size) that the changes do not affect the previous analyses, take estimates, or mitigation and monitoring requirements.

    (2) A preliminary monitoring report showing the results of the required monitoring to date and an explanation showing that the monitoring results do not indicate impacts of a scale or nature not previously analyzed or authorized.

    • Upon review of the request for renewal, the status of the affected species or stocks, and any other pertinent information, NMFS determines that there are no more than minor changes in the activities, the mitigation and monitoring measures remain the same and appropriate, and the original findings remain valid.

    Dated: February 16, 2018. Donna S. Wieting, Director, Office of Protected Resources, National Marine Fisheries Service.
    [FR Doc. 2018-03615 Filed 2-21-18; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XG012 Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Gull and Climate Monitoring/Research in Glacier Bay National Park, Alaska AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Notice; receipt of application for Letter of Authorization; request for comments and information.

    SUMMARY:

    NMFS has received a request from the National Park Service (NPS) for authorization to take small numbers of marine mammals incidental to glaucous-winged gull and climate monitoring/research in Glacier Bay National Park (GLBA NP), Alaska over the course of five years from the date of issuance. Pursuant to regulations implementing the Marine Mammal Protection Act (MMPA), NMFS is announcing receipt of the NPS' request for the development and implementation of regulations governing the incidental taking of marine mammals. NMFS invites the public to provide information, suggestions, and comments on the NPS' application and request.

    DATES:

    Comments and information must be received no later than March 26, 2018.

    ADDRESSES:

    Comments on the applications should be addressed to Jolie Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service. Physical comments should be sent to 1315 East-West Highway, Silver Spring, MD 20910 and electronic comments should be sent to [email protected]

    Instructions: NMFS is not responsible for comments sent by any other method, to any other address or individual, or received after the end of the comment period. Comments received electronically, including all attachments, must not exceed a 25-megabyte file size. Attachments to electronic comments will be accepted in Microsoft Word or Excel or Adobe PDF file formats only. All comments received are a part of the public record and will generally be posted online at https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-research-and-other-activities without change. All personal identifying information (e.g., name, address) voluntarily submitted by the commenter may be publicly accessible. Do not submit confidential business information or otherwise sensitive or protected information.

    FOR FURTHER INFORMATION CONTACT:

    Jonathan Molineaux, Office of Protected Resources, NMFS, (301) 427-8401. An electronic copy of the NPS's application may be obtained online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-research-and-other-activities. In case of problems accessing these documents, please call the contact listed above.

    SUPPLEMENTARY INFORMATION: Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce (as delegated to NMFS) to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are issued or, if the taking is limited to harassment, a notice of a proposed authorization is provided to the public for review.

    An incidental take authorization shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth.

    NMFS has defined “negligible impact” in 50 CFR 216.103 as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.

    The MMPA states that the term “take” means to harass, hunt, capture, kill or attempt to harass, hunt, capture, or kill any marine mammal.

    Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as any act of pursuit, torment, or annoyance, which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).

    Summary of Request

    On February 6, 2018, NMFS received an adequate and complete application from the NPS requesting authorization for take of marine mammals incidental to glaucous-winged gull and climate monitoring research activities in GLBA NP, Alaska. The requested regulations would be valid for five years, from March 2019 through December 2023. The NPS plans to conduct necessary work, including gull and climate monitoring to assist in informing future native egg harvests and fill crucial climate data gaps. The proposed action may incidentally expose marine mammals occurring in the vicinity to either acoustic disturbance from motorboat sounds or visual disturbance from the presence of observers, thereby resulting in incidental take, by Level B harassment only. Therefore, the NPS requests authorization to incidentally take eastern pacific harbor seals.

    Specified Activities

    The purpose for the monitoring activities are as follows. Gull monitoring studies are mandated by a Record of Decision of a Legislative Environmental Impact Statement (LEIS) (NPS 2010) which states that NPS must initiate a monitoring program for glaucous-winged gulls (Larus glaucescens) to inform future native egg harvest by the Hoonah Tlingit in Glacier Bay, Alaska. Installation of a new weather station on Lone Island is being planned as one of several installations intended to fill coverage gaps among existing weather stations in GLBA NP (NPS 2015a). These new stations will be operated as the foundation of a new long-term climate-monitoring program for GLBA NP. The maximum number of days the NPS will conduct annual monitoring activities that require a Letter of Authorization will be 24 days during each of the five years of work. This consists of four possible yearly climate monitoring visits to Lone Island during the months of October to April and five possible annual gull monitoring visits each to Boulder Island, Geikie Rock, Lone Island and Flapjack Island during the months of May to September. Eastern Pacific harbor (Phoca vitulina richardii) seals are the only marine mammals expected to be taken by the activities as the NPS will maintain a distance of 100 meters from all Steller sea lions.

    Information Solicited

    Interested persons may submit information, suggestions, and comments concerning the NPS' request (see ADDRESSES). NMFS will consider all information, suggestions, and comments related to the request during the development of proposed regulations governing the incidental taking of marine mammals by the NPS, if appropriate.

    Dated: February 15, 2018. Donna Wieting, Director, Office of Protected Resources, National Marine Fisheries Service.
    [FR Doc. 2018-03578 Filed 2-21-18; 8:45 am] BILLING CODE 3510-22-P
    COURT SERVICES AND OFFENDER SUPERVISION AGENCY FOR THE DISTRICT OF COLUMBIA Publication of Fiscal Year 2016 Service Contract Inventory AGENCY:

    Court Services and Offender Supervision Agency for the District of Columbia (CSOSA).

    ACTION:

    Notice of public availability of FY 2016 Service Contract Inventory.

    SUMMARY:

    In accordance with Section 743 of Division C of the FY2010 Consolidated Appropriations Act, the Court Services and Offender Supervision Agency hereby advises the public of the availability of the FY 2016 Service Contract Inventory. This inventory provides information on service contract actions over $25,000 that were made in FY 2016. The information is organized by function to show how contracted resources are distributed throughout the agency. This inventory has been developed in accordance with guidance issued on November 5, 2010 and December 19, 2011 by the Office of Management and Budget's Office of Federal Procurement Policy (OFPP). CSOSA's FY 2016 Service Contract Inventory is available on its website at: http://www.csosa.gov/about/mandated-reports.aspx.

    FOR FURTHER INFORMATION CONTACT:

    Inventory Information: Reggie James, Associate Director, Court Services and Offender Supervision Agency, Office of Administration, 800 North Capitol Street NW, Washington, DC 20004, at (202) 220-5707, or [email protected]

    Notice Information: Rochelle Durant, Program Analyst, Court Services and Offender Supervision Agency, 633 Indiana Avenue NW, Washington, DC 20004, (202) 220-5304, or [email protected]

    Dated: February 15, 2018. Rochelle Durant, Program Analyst, Court Services and Offender Supervision Agency for the District of Columbia.
    [FR Doc. 2018-03616 Filed 2-21-18; 8:45 am] BILLING CODE 3129-04-P
    DEPARTMENT OF EDUCATION [Docket No. ED-2018-ICCD-0020] Agency Information Collection Activities; Comment Request; Migrant Student Information Exchange User Application Form AGENCY:

    Office of Elementary and Secondary Education (OESE), Department of Education (ED).

    ACTION:

    Notice.

    SUMMARY:

    In accordance with the Paperwork Reduction Act of 1995, ED is proposing an extension of an existing information collection.

    DATES:

    Interested persons are invited to submit comments on or before April 23, 2018.

    ADDRESSES:

    To access and review all the documents related to the information collection listed in this notice, please use http://www.regulations.gov by searching the Docket ID number ED-2018-ICCD-0020. Comments submitted in response to this notice should be submitted electronically through the Federal eRulemaking Portal at http://www.regulations.gov by selecting the Docket ID number or via postal mail, commercial delivery, or hand delivery. Please note that comments submitted by fax or email and those submitted after the comment period will not be accepted. Written requests for information or comments submitted by postal mail or delivery should be addressed to the Director of the Information Collection Clearance Division, U.S. Department of Education, 400 Maryland Avenue SW, LBJ, Room 216-42, Washington, DC 20202-4537.

    FOR FURTHER INFORMATION CONTACT:

    For specific questions related to collection activities, please contact Maria Hishikawa, 202-260-1473.

    SUPPLEMENTARY INFORMATION:

    The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.

    Title of Collection: Migrant Student Information Exchange User Application Form.

    OMB Control Number: 1810-0686.

    Type of Review: An extension of an existing information collection.

    Respondents/Affected Public: State, Local, and Tribal Governments.

    Total Estimated Number of Annual Responses: 420.

    Total Estimated Number of Annual Burden Hours: 210.

    Abstract: The Department requests to extend the collection of the existing MSIX User Application. State educational agencies (SEAs) with MEPs will collect the information from state and local education officials who desire access to the MSIX system. The collection instrument verifies the applicant's need for MSIX data and authorizes the user's access to that data. The burden hours associated with the data collection are required to meet the statutory mandate in Sec. 1308(b) of Elementary and Secondary Education Act (ESEA), as amended by the Every Student Succeeds Act, which is to facilitate the electronic exchange by the SEAs of a set of minimum data elements to address the educational and related needs of migratory children.

    Dated: February 15, 2018. Tomakie Washington, Acting Director, Information Collection Clearance Division, Office of the Chief Privacy Officer, Office of Management.
    [FR Doc. 2018-03561 Filed 2-21-18; 8:45 am] BILLING CODE 4000-01-P
    DEPARTMENT OF EDUCATION [Docket No. ED-2018-ICCD-0019] Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; Program for International Student Assessment (PISA 2018) Main Study AGENCY:

    National Center for Education Statistics (NCES), Department of Education (ED).

    ACTION:

    Notice.

    SUMMARY:

    In accordance with the Paperwork Reduction Act of 1995, ED is proposing a revision of an existing information collection.

    DATES:

    Interested persons are invited to submit comments on or before March 26, 2018.

    ADDRESSES:

    To access and review all the documents related to the information collection listed in this notice, please use http://www.regulations.gov by searching the Docket ID number ED-2018-ICCD-0019. Comments submitted in response to this notice should be submitted electronically through the Federal eRulemaking Portal at http://www.regulations.gov by selecting the Docket ID number or via postal mail, commercial delivery, or hand delivery. Please note that comments submitted by fax or email and those submitted after the comment period will not be accepted. Written requests for information or comments submitted by postal mail or delivery should be addressed to the Director of the Information Collection Clearance Division, U.S. Department of Education, 400 Maryland Avenue SW, LBJ, Room 216-32, Washington, DC 20202-4537.

    FOR FURTHER INFORMATION CONTACT:

    For specific questions related to collection activities, please contact Kashka Kubzdela, 202-502-7411.

    SUPPLEMENTARY INFORMATION:

    The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.

    Title of Collection: Program for International Student Assessment (PISA 2018) Main Study.

    OMB Control Number: 1850-0755.

    Type of Review: A revision of an existing information collection.

    Respondents/Affected Public: Individuals or Households.

    Total Estimated Number of Annual Responses: 57,878.

    Total Estimated Number of Annual Burden Hours: 22,604.

    Abstract: The Program for International Student Assessments (PISA) is an international assessment of 15-year-olds which focuses on assessing students' reading, mathematics, and science literacy. PISA was first administered in 2000 and is conducted every three years. The United States has participated in all of the previous cycles, and is participating in 2018 in order to track trends and to compare the performance of U.S. students with that of students in other education systems. PISA 2018 is sponsored by the Organization for Economic Cooperation and Development (OECD). In the United States, PISA is conducted by the National Center for Education Statistics (NCES), within the U.S. Department of Education. In each administration of PISA, one of the subject areas (reading, mathematics, or science literacy) is the major domain and has the broadest content coverage, while the other two subjects are the minor domains. PISA emphasizes functional skills that students have acquired as they near the end of mandatory schooling (aged 15 years), and students' knowledge and skills gained both in and out of school environments. PISA 2018 will focus on reading literacy as the major domain. Mathematics and science literacy will also be assessed as minor domains, with additional assessment of financial literacy. In addition to the cognitive assessments described above, PISA 2018 will include questionnaires administered to assessed students, school principals, and teachers. The PISA 2018 Recruitment and Field Test were approved in September 2016 with the latest change request approved in September 2017 (1850-0755 v.18-20). The PISA 2018 field test was conducted in March-May 2017. The PISA 2018 main study recruitment began in October 2017 and data collection will be conducted October-November 2018. This request provides the final plans, burden, and materials for PISA 2018 main study.

    Dated: February 15, 2018. Stephanie Valentine, Acting Director, Information Collection Clearance Division, Office of the Chief Privacy Officer, Office of Management.
    [FR Doc. 2018-03564 Filed 2-21-18; 8:45 am] BILLING CODE 4000-01-P
    DEPARTMENT OF EDUCATION Office of Postsecondary Education; Solicitation of Third-Party Comments Concerning the Performance of Accrediting Agencies AGENCY:

    Office of Postsecondary Education, Department of Education.

    ACTION:

    Call for written third-party comments; extension of comment period.

    SUMMARY:

    On January 24, 2018, we published in the Federal Register a notice of a call for written third-party comments. That notice provided information to members of the public on submitting written comments with respect to accrediting agencies currently undergoing review for purposes of recognition by the Secretary of Education. That notice established a comment period beginning on January 24, 2018, and closing on February 16, 2018. Pursuant to a recent court order, we are extending the public comment period until March 1, 2018, for the submission of comments on the application of the Accrediting Council for Independent Colleges and Schools (ACICS) for initial recognition and the compliance report submitted by the American Bar Association (ABA).

    DATES:

    The comment period for the notice published January 24, 2018 (83 FR 3335), is extended. We must receive your comments on or before March 1, 2018.

    ADDRESSES:

    Written comments about the initial application for recognition of ACICS or the ABA compliance report must be received by March 1, 2018, in the [email protected] mailbox and include the subject line “Written Comments: (agency name).”

    FOR FURTHER INFORMATION CONTACT:

    Herman Bounds, Director, Accreditation Group, Office of Postsecondary Education, U.S. Department of Education, 400 Maryland Avenue SW, Room 270-01, Washington, DC 20202, telephone: (202) 453-7615, or email: [email protected]

    If you use a telecommunications device for the deaf or a text telephone, call the Federal Relay Service, toll free, at 1-800-877-8339.

    SUPPLEMENTARY INFORMATION:

    Background: On January 24, 2018, we published in the Federal Register (83 FR 3335) a notice of a call for written third-party comments with respect to accrediting agencies currently undergoing review for purposes of recognition by the Secretary of Education. Under that notice, the public comment period closes on February 16, 2018. On February 15, 2018, the U.S. District Court for the Southern District of New York ordered the Department of Education to extend the comment period to March 1, 2018, for comments on the initial application for recognition of ACICS and the compliance report submitted by the ABA. (See The Century Foundation v. Betsy Devos, case number 18-cv-1128).

    Accessible Format: Individuals with disabilities can obtain this document in an accessible format (e.g., braille, large print, audiotape, or compact disc) on request to the contact person listed under FOR FURTHER INFORMATION CONTACT.

    Electronic Access to This Document: The official version of this document is the document published in the Federal Register. Free internet access to the official edition of the Federal Register and the Code of Federal Regulations is available via the Federal Digital System at: www.thefederalregister.org/fdsys. At this site you can view this document, as well as all other documents of this Department published in the Federal Register, in text or Portable Document Format (PDF). To use PDF, you must have Adobe Acrobat Reader, which is available free at this site.

    You may also access documents of the Department published in the Federal Register by using the article search feature at: www.federalregister.gov. Specifically, through the advanced search feature at this site, you can limit your search to documents published by the Department.

    Dated: February 16, 2018. Frank T. Brogan, Principal Deputy Assistant Secretary and delegated the duties of the Assistant Secretary, Office of Planning, Evaluation and Policy Development Delegated the duties of the Assistant Secretary, Office of Postsecondary Education.
    [FR Doc. 2018-03686 Filed 2-16-18; 4:15 pm] BILLING CODE 4000-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Notice of Technical Conference Docket Nos. Participation of Distributed Energy Resource Aggregations in Markets Operated by Regional Transmission Organizations and Independent System Operators RM18-9-000 Distributed Energy Resources—Technical Considerations for the Bulk Power System AD18-10-000

    Take notice that Federal Energy Regulatory Commission (Commission) staff will hold a technical conference to discuss the participation of distributed energy resource (DER) aggregations in Regional Transmission Organization (RTO) and Independent System Operator (ISO) markets, and to more broadly discuss the potential effects of distributed energy resources on the bulk power system. The technical conference will take place on April 10 and 11, 2018 at the Commission's offices at 888 First Street NE, Washington DC beginning at 9:30 a.m. and ending at 4:30 p.m. (Eastern Time). Commissioners will lead the second panel of the technical conference. Commission staff will lead the other six panels, and Commissioners may attend.

    The technical conference will address two broad set of issues related to DERs. First, the technical conference will gather additional information to help the Commission determine what action to take on the distributed energy resource aggregation reforms proposed in its Notice of Proposed Rulemaking on Electric Storage Participation in Markets Operated by Regional Transmission Organizations and Independent System Operators (NOPR).1 In the NOPR, the Commission proposed to require each RTO/ISO to define DER aggregators as a type of market participant that can participate in the RTO/ISO markets under the participation model that best accommodates the physical and operational characteristics of its DER aggregation.2 As discussed in the Final Rule issued concurrently with this Notice, the Commission is taking no further action in Docket No. RM16-23-000 regarding the proposed DER aggregation reforms.3 Instead, the Commission will continue to explore the proposed distributed energy resource aggregation reforms under Docket No. RM18-9-000. All comments previously filed in response to the NOPR in Docket No. RM16-23-000 will be incorporated by reference into Docket No. RM18-9-000, and any further comments regarding the proposed distributed energy resource aggregation reforms, including discussion of those reforms during this technical conference, should be filed henceforth in Docket No. RM18-9-000.4 Second, the technical conference will explore issues related to the potential effects of DERs on the bulk power system.

    1 See Electric Storage Participation in Markets Operated by Regional Transmission Organizations and Independent System Operators, FERC Stats. & Regs. ¶ 32,718 (2016) (NOPR).

    2Id. P 1.

    3 See Electric Storage Participation in Markets Operated by Regional Transmission Organizations and Independent System Operators, Final Rule, 162 FERC 61,127, Notice of Proposed Rulemaking, FERC Stats. & Regs. ¶ 32,718.

    4 Further comments regarding the proposed distributed energy resource aggregation reforms should no longer be filed in Docket No. RM16-23-000.

    Attached to this Notice is a description of the seven panels that will be conducted at the technical conference.

    Further details of this conference will be provided in a supplemental notice.

    Those wishing to participate in this conference should submit a nomination form online by 5:00 p.m. on March 15, 2018 at: https://www.ferc.gov/whats-new/registration/04-10-18-speaker-form.asp.

    All interested persons may attend the conference, and registration is not required. However, in-person attendees are encouraged to register on-line by April 3, 2018 at: https://www.ferc.gov/whats-new/registration/04-10-18-form.asp. In-person attendees should allow time to pass through building security procedures before the 9:30 a.m. start time of the technical conference.

    The Commission will transcribe and webcast this conference. Transcripts will be available immediately for a fee from Ace Reporting (202-347-3700). A link to the webcast of this event will be available in the Commission Calendar of Events at www.ferc.gov. The Capitol Connection provides technical support for the webcasts and offers the option of listening to the conference via phone-bridge for a fee. For additional information, visit www.CapitolConnection.org or call (703) 993-3100.

    Commission conferences are accessible under section 508 of the Rehabilitation Act of 1973. For accessibility accommodations please send an email to [email protected] or call toll free 1-866-208-3372 (voice) or 202-208-8659 (TTY), or send a fax to 202-208-2106 with the required accommodations.

    For more information about this technical conference, please contact David Kathan at (202) 502-6404, [email protected], or Louise Nutter at (202) 502-8175, [email protected]. For information related to logistics, please contact Sarah McKinley at (202) 502-8368, [email protected].

    Dated: February 15, 2018. Nathaniel J. Davis, Sr., Deputy Secretary. Distributed Energy Resources Technical Conference Docket Nos. RM18-9-000 and AD18-10-000 April 10 and 11, 2018 Tuesday, April 10, 2018

    The purpose of this technical conference is to gather additional information to help the Commission determine what action to take on the distributed energy resource (DER) aggregation reforms proposed in the Commission's Notice of Proposed Rulemaking on Electric Storage Participation in Markets Operated by Regional Transmission Organizations and Independent System Operators (NOPR), and to explore issues related to the potential effects of DERs on the bulk power system. Panels 1 and 3 on the first day focus on specific NOPR proposals that relate to DER participation and compensation. Panel 2 will provide a forum for Commissioners to discuss DER aggregation with a panel of state and local regulators. During the second day of the technical conference, operational issues associated with DER data, modeling, and coordination will be examined.

    Panel 1: Economic Dispatch, Pricing, and Settlement of DER Aggregations

    The objective of this panel is to discuss the integration of DER aggregations into the modeling, clearing, dispatch, and settlement mechanisms of RTOs and ISOs as considered in the NOPR. The NOPR proposed to require each RTO/ISO to revise its tariff to remove barriers to the participation of DER aggregations in its markets by, among other measures, establishing locational requirements for DER aggregations that are as geographically broad as technically feasible.1 The NOPR also addressed the use of distribution factors 2 and bidding parameters 3 for DER aggregations. In consideration of comments received in response to the NOPR, staff seeks additional information about how DER aggregations could locate across more than one pricing node. Staff would also like additional information about bidding parameters or other potential mechanisms needed to represent the physical and operational characteristics of DER aggregations in RTO/ISO markets. In particular, Commission staff expects to explore the following questions:

    1 NOPR at P 139.

    2 The Commission proposed to require each RTO/ISO to revise its tariff to include the requirement that DER aggregators (1) provide default distribution factors when they register their DER aggregation and (2) update those distribution factors if necessary when they submit offers to sell or bids to buy into the organized wholesale electric markets. Id. P 143.

    3 The Commission sought comment on whether bidding parameters in addition to those already incorporated into existing participation models may be necessary to adequately characterize the physical or operational characteristics of DER aggregations. Id. P 144.

    • Acknowledging that some RTOs/ISOs already allow aggregations across multiple pricing nodes, what approaches are available to ensure that the dispatch of a multi-node DER aggregation does not exacerbate a transmission constraint?

    • Because transmission constraints change over time, would the ability of a multi-node DER aggregation to participate in an RTO/ISO market need to be revisited as system topology changes?

    • Do multi-node DER aggregations present any special considerations for the reliability of the transmission system that do not arise from other market participants? How could these concerns be resolved?

    • What types of modifications would need to be made to the modeling and dispatch software, communications platforms, and automation tools necessary to enable reliable and efficient system dispatch for multi-node DER aggregations? How long would it take for these changes to be implemented?

    • If the Commission requires the RTOs/ISOs to allow multi-node DER aggregations to participate in their markets, how should a DER aggregation located across multiple pricing nodes be settled for the services that it provides? One approach to settling a multi-node DER aggregation could be to pay it the weighted average locational marginal price (LMP) across the nodes at which it is located. What are the advantages and disadvantages of this approach? Are there other approaches that should be considered?

    • The NOPR considered the use of “distribution factors” to account for the expected response of DER aggregations from multiple nodes. Are there other characteristics of DER aggregations that may not be accommodated by existing bidding parameters in the RTOs/ISOs? If so, what are they? Would new bidding parameters be necessary? If so, what are they?

    Panel 2: Discussion of Operational Implications of DER Aggregation With State and Local Regulators

    This panel will provide a forum for Commissioners to discuss the NOPR's DER aggregation proposals with state and local regulators. The discussion will provide an opportunity for state and local regulators to provide their perspectives and concerns about the operational effects that DER participation in the wholesale market could have on facilities they regulate. In particular, Commissioners expect to explore the following questions:

    • What are the potential positive or negative operational impacts (e.g., safety, reliability, and dispatch) that DER participation in the wholesale market could have on facilities regulated by state and local authorities? How should the costs associated with monitoring and addressing such potential impacts on the distribution grid caused by the NOPR proposal be addressed, and fairly allocated? Are existing retail rate structures able to allocate costs to DER aggregations that utilize the distribution systems, and if not, what modifications or coordination are feasible?

    • Do state and local authorities have operational concerns with a DER aggregation participating in both wholesale and retail markets? If so, what, if any, coordination protocols between states or local regulators and regional markets would be required to facilitate DER aggregations' participation in both retail and wholesale markets? Could the use of appropriate metering and telemetry address the ability to distinguish between markets and services, and prevent double compensation for the same services? What is the role of state and local regulators in monitoring and regulating the potential for such double compensation? How should regional flexibility be accommodated?

    • What entities should be included in the coordination processes used to facilitate the participation of DER aggregations in Regional Transmission Organization (RTO) and Independent System Operator (ISO) markets? Should state and local regulatory authorities play an active role in these coordination processes? Is there a need to modify existing RTO/ISO protocols or develop new protocols to accommodate state participation in this coordination? What should be the role of state and local regulators in the NOPR's proposed distribution utility review of DER aggregation registrations?

    • Does the proposed use of market participation agreements address state and local regulator concerns about the role of distribution utilities in the coordination and registration of DERs in aggregations? Are the proposed provisions in the market participation agreements that require that DER aggregators attest that they are compliant with the tariffs and operation procedures of distribution utilities and state and local regulators sufficient to address such concerns?

    • What are the proper protections and policies to ensure that DER aggregations participating in wholesale markets will not negatively affect efficient outcomes in the distribution system?

    Panel 3: Participation of DERs in RTO/ISO Markets

    DERs can both sell services into the RTO/ISO markets and participate in retail compensation programs. To ensure that that there is no duplication of compensation for the same service, in the NOPR the Commission proposed that individual DERs participating in one or more retail compensation programs, such as net metering or another RTO/ISO market participation program, will not be eligible to participate in the RTO/ISO markets as part of a DER aggregation.4 This panel will explore potential solutions to challenges associated with DER aggregations that provide multiple services, including ways to avoid duplication of compensation for their services in the RTO/ISO markets, potential ways for the RTOs/ISOs to place appropriate restrictions on the services they can provide, and procedures to ensure that DERs are not accounted for in ways that affect efficient outcomes in the RTO/ISO markets. In particular, Commission staff expects to explore the following questions:

    4Id. P 134.

    • Given the variety of wholesale and retail services, is it possible to universally characterize a set of wholesale and retail services as the “same service”? If so, how could the Commission prohibit a DER from providing the same service to the wholesale market as it provides in a retail compensation program?

    • In Order No. 719, the Commission stated that “[a]n RTO or ISO may place appropriate restrictions on any customer's participation in an [aggregation of retail customers]-aggregated demand response bid to avoid counting the same demand response resource more than once.” 5 How have the RTOs/ISOs effectuated this requirement or otherwise ensured that demand response participating in their markets is not being double counted? What would be the advantages and disadvantages of taking this approach for DER aggregations instead of the approach proposed in the NOPR for preventing double compensation for the same service?

    5Wholesale Competition in Regions with Organized Electric Markets, Order No. 719, FERC Stats. & Regs. ¶ 31,281, at P 158 (2008), order on reh'g, Order No. 719-A, FERC Stats. & Regs. ¶ 31,292 (2009), order on reh'g, Order No. 719-B, 129 FERC ¶ 61,252 (2009).

    • What other options besides the NOPR's proposed limits on dual participation exist to address issues associated with the participation of DERs or DER aggregations in one or more retail compensation programs or another wholesale market participation program at the same time as it participates in a wholesale DER aggregation? Is there a way to coordinate DER participation in multiple markets or compensation programs? Is a possible solution having a targeted prohibition, such as the limitation placed on net-metered resources in CAISO? 6 Are there other means?

    6See CAISO Tariff, § 4.17.3(d).

    Wednesday, April 11, 2018 Panel 4: Collection and Availability of Data on DER Installations

    To plan and operate the bulk power system, it is important for transmission planners, transmission operators, and distribution utilities to collect and share validated data across the transmission-distribution interface. In September 2017, the North American Electric Reliability Corporation (NERC) published a Reliability Guideline on DER modeling (Guideline) that specified the minimum DER information needed by transmission planners and planning coordinators to assist in modeling and assessments.7 The Guideline references the importance of static data (such as the capacity, capabilities, and location of a DER installation) for the entities involved in the planning of the bulk power system. This panel will focus on understanding the need for bulk power system planners and operators to have access to accurate data to plan and operate the bulk power system, explore the types of data that are needed, and assess the current state of DER data collection. The panel will also address regional DER penetration levels and any potential effects of inaccurate long-term DER forecasting. A Commission Staff DER Technical Report is being issued concurrently with this Notice to provide a common foundation for the topics raised in this panel. For this panel, Commission staff expects to explore the following questions:

    7See NERC Distributed Energy Resource Modeling Reliability Guideline, at 5 (Sept. 2017), available at http://www.nerc.com/comm/PC_Reliability_Guidelines_DL/Reliability_Guideline_-_DER_Modeling_Parameters_-_2017-08-18_-_FINAL.pdf.

    • What type of information do bulk power system planners and operators need regarding DER installations within their footprint to plan and operate the bulk power system? Would it be sufficient for distribution utilities to provide aggregate information about the penetration of DERs below certain points on the transmission-distribution interface? If greater granularity is needed, what level of detail would be sufficient? Is validation of the submitted data possible using data available?

    • What, if any, data on DER installations is currently collected, and by whom is it collected? Do procedures and appropriate agreements exist to share this data with affected bulk power system entities (i.e., those entities responsible for the reliable operation of the bulk power system or for modeling and planning for a reliable bulk power system)? Is there variation by entity or region?

    • At various DER penetration levels, what planning and operations impacts do you observe? Do balancing authorities with significant growth in DERs experience the need to address bulk power system reliability and operational considerations at certain DER penetration levels? What are they? Is the MW level of DER penetration the most important factor in whether DERs cause planning and operational impacts, or do certain characteristics of installed DERs affect the system operator's analysis? Is the point at which DER penetration causes bulk power system reliability and operational impacts the point at which it becomes necessary for distribution utilities to provide information on DERs to the bulk power system operator, or is there some other threshold that could trigger a need for sharing this information? How much might the answer to these questions vary on a regional basis, and what factors may contribute to this variance?

    • How are long-term projections for DER penetrations developed? Are these projections currently included in related forecasting efforts? Do system operators study the potential effects of future DER growth to assess changing infrastructure and planning needs at different penetration levels?

    • What are the effects on the bulk power system if long-term forecasts of DER growth are inaccurate? Are these effects within current planning horizons? Are changes in the expected growth of DERs incorporated into ongoing planning efforts?

    • How are DERs incorporated into production cost modeling studies? Do current tools allow for assessment of forecasting variations and their effects?

    • Noting that participation in the RTO/ISO markets by DER aggregators may provide more information to the RTOs/ISOs about DERs than would otherwise be available, should any specific information about DER aggregations or the individual DERs in them be required from aggregators to ensure proper planning and operation of the bulk power system?

    • Do the RTOs/ISOs need any directly metered data about the operations of DER aggregations to ensure proper planning and operation of the bulk power system?

    Panel 5: Incorporating DERs in Modeling, Planning and Operations Studies

    Bulk power system planners and operators must select methods to feasibly model DERs at the bulk power system level with sufficient granularity to ensure accurate results. The chosen methodology for grouping DERs at the bulk power system level could affect planners' ability to predict system behavior following events, or to identify a need for different operating procedures under changing system conditions. Further, the operation of DERs can affect both bulk power systems and distribution facilities in unintended ways, suggesting that new tools to model the transmission and distribution interface may be needed. Staff is also aware of ongoing work in this area, for example efforts at NERC, national labs and other groups, to evaluate options for studies in these areas, which could also inform future work. This panel will focus on the incorporation of DERs into different types of planning and operational studies, including options for modeling DERs and the methodology for the inclusion of DERs in larger regional models. The Commission Staff DER Technical Report issued concurrently with this Notice is intended to provide a common foundation for the topics raised in this panel. For this panel, Commission staff expects to explore the following questions:

    • What are current and best practices for modeling DERs in different types of planning, operations, and production cost studies? Are options available for modeling the interactions between the transmission and distribution systems?

    • To what extent are capabilities and performance of DERs currently modeled? Do current modeling tools provide features needed to model these capabilities?

    • What methods, such as net load, composite load models, detailed models or others, are currently used in power flow and dynamic models to represent groups of DERs at the bulk power system level? Would more detailed models of DERs at the bulk power system level provide better visibility and enable more accurate assessment of their impacts on system conditions? Does the appropriate method for grouping DERs vary by penetration level?

    • Do current contingency studies include the outage of DER facilities, and if they are considered, how is the contingency size chosen? At what penetration levels or under what system conditions could including DER outages be beneficial? Are DERs accounted for in calculations for Under Frequency Load Shedding and related studies?

    • What methods are used to calculate capacity needed for balancing supply and demand with large amount of solar DER (ramping and frequency control) and determining which resources can provide an appropriate response?

    Panel 6: Coordination of DER Aggregations Participating in RTO/ISO Markets

    In the NOPR, the Commission proposed to require each RTO/ISO to revise its tariff to provide for coordination among itself, a DER aggregator, and the relevant distribution utility or utilities when a DER aggregator registers a new DER aggregation or modifies an existing DER aggregation.8 The Commission proposed that this coordination would provide the relevant distribution utility or utilities with the opportunity to review the list of individual resources that are located on their distribution system that enroll in a DER aggregation before those resources may participate in RTO/ISO electric markets. This panel will examine the potential ways for RTOs/ISOs, distribution utilities, retail regulatory authorities, and DER aggregators to coordinate the integration of a DER aggregation into the RTO/ISO markets. In addition, because the use of grid architecture 9 can help identify the relationships among the entities involved in coordinating the integration of DER aggregations, this panel will also examine the potential architectural designs for the initial coordination processes from the point of view of the RTO/ISO markets. In particular, Commission staff expects to explore the following questions:

    8 NOPR at P 154.

    9 As an aid to thinking about the electric power grid, Pacific Northwest National Laboratory and others have coined the term “grid architecture,” which they define as the application of network theory and control theory to a conceptual model of the electric power grid that defines its structure, behavior, and essential limits. See, e.g., https://gridarchitecture.pnnl.gov/. Expanding upon this concept, some thinkers have begun discussing different types of “grid architecture,” which presumably differ in structure, behavior or essential limits from current norms.

    • If the Commission adopts its proposal to require the RTO/ISO to allow a distribution utility to review the list of individual resources that are located on their distribution system that enroll in a DER aggregation before those resources may participate in RTO/ISO electric markets, is it appropriate for distribution utilities to have a role in determining when the individual DERs may begin participation? Should the RTO/ISO tariff provide the distribution utility with the ability to provide either binding or non-binding input to the RTO/ISO? Should the RTO/ISO provide the distribution utility with a specific period of time in which to consult before DERs may begin participation? Should the Commission require the RTO/ISO to receive explicit consent from the distribution utility before a DER is included in a DER aggregation? Are there other approaches to coordinate with the distribution utility? What are the advantages and disadvantages of these approaches?

    • Are new processes and protocols needed to ensure coordination among DER aggregators, distribution utilities, and RTOs/ISOs during registration of a new DER aggregations? How can the Commission ensure that any new processes and protocols occur in a way that provides adequate transparency to the interested parties and also occurs on a timely basis?

    • Should there be a coordination agreement in place prior to the participation of DER aggregation in RTO/ISO markets? Who should be parties to this coordination agreement? How would the coordination agreement be enforced?

    • What is the best approach for involving retail regulatory authorities in the registration of DER aggregations in the RTO/ISO markets?

    • What types of grid architecture could support the integration of DER aggregations into the RTO/ISO markets? Knowing that a variety of grid architectures are being explored in various regions, does it make sense for the Commission to consider specific architectural requirements for RTOs/ISOs for the effective integration and coordination of DER aggregations?

    Panel 7: Ongoing Operational Coordination

    This panel will focus primarily on the operational considerations associated with both individual DERs and DER aggregations and with the interactions and communications between DERs, DER aggregators, distribution utilities, and transmission operators. In the NOPR, the Commission acknowledged that ongoing coordination between the RTO/ISO, a DER aggregator, and the relevant distribution utility or utilities may be necessary to ensure that the DER aggregator is dispatching individual resources in a DER aggregation consistent with the limitations of the distribution system.10 The Commission proposed that each RTO/ISO revise its tariff to establish a process for ongoing coordination, including operational coordination, among itself, the DER aggregator, and the distribution utility to maximize the availability of the DER aggregation consistent with the safe and reliable operation of the distribution system. To help effectuate this proposal, the Commission also proposed to require each RTO/ISO to revise its tariff to require the DER aggregator to report to the RTO/ISO any changes to its offered quantity and related distribution factors that result from distribution line faults or outages. The Commission also sought comment on the level of detail necessary in the RTO/ISO tariffs to establish a framework for ongoing coordination between the RTO/ISO, a DER aggregator, and the relevant distribution utility or utilities. To further explore these issues, Commission staff expects to explore the following questions:

    10 NOPR at P 155.

    • What real-time data acquisition and communication technologies are currently in use to provide bulk power system operators with visibility into the distribution system? Are they adequate to convey the information necessary for transmission and distribution operators to assess distribution system conditions in real time? Are new systems or approaches needed? Does DER aggregation require separate or additional capabilities and infrastructure for communication and control?

    • What processes/protocols do distribution utilities, transmission operators, and DERs or DER aggregators use to coordinate with each other? Are these processes/protocols capable of providing needed real-time communications and coordination? What new processes, resources, and efforts will be required to achieve effective real-time coordination?

    • What are the minimum set of specific RTO/ISO operational protocols, performance standards, and market rules that should be adopted now to ensure operational coordination for DER aggregation participating in the RTO/ISO markets? What additional protocols may be important for the future? Should the Commission adopt more prescriptive requirements with respect to coordination than those proposed in the NOPR? If so, what should the Commission require?

    • Should distribution utilities be able to override RTO/ISO decisions regarding day-ahead and real-time dispatch of DER aggregations to resolve local distribution reliability issues? If so, should DER aggregations nonetheless be subject to non-deliverability penalties under such circumstances?

    • Is it possible for DERs or DER aggregations participating in the RTO/ISO markets to also be used to improve distribution system operations and reliability? If so, please provide examples of how this could be accomplished.

    • Can real-time dispatch of aggregated DERs address distribution constraints? If not, can tools be developed to accomplish this?

    • Should individual DERs be required to have communications capabilities to comply with control center obligations? What level of communications security should be employed for these communications?

    • How might recent and expected technical advancements be used to enhance the coordination of DER aggregations, for example, integrating Energy Management Systems (EMS) and Distribution Management Systems (DMS) for efficient operational coordination?

    [FR Doc. 2018-03649 Filed 2-21-18; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket Nos. EL17-70-000; QF17-935-001; QF17-936-001] Zeeland Farm Services, Inc.; Notice of Amended Petition for Declaratory Order

    Take notice that on February 14, 2018, pursuant to Rule 215 of the Rules of Practice and Procedure of the Federal Energy Regulatory Commission (Commission),1 and section 292.203(d)(2) of the Commission's regulations,2 Zeeland Farm Services, Inc. (Zeeland or Petitioner) submitted an amendment to its petition for declaratory order, filed on May 3, 2017, requesting that the Commission grant Zeeland limited waiver from the FERC Form 556 filing requirement 3 for two qualifying small power production facilities, as more fully explained in the petition.

    1 18 CFR 385.215 (2017).

    2 18 CFR 292.203(d)(2).

    3 18 CFR 292.203(a)(3).

    Any person desiring to intervene or to protest in this proceeding must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. Anyone filing a motion to intervene or protest must serve a copy of that document on the Petitioner.

    The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at http://www.ferc.gov. To facilitate electronic service, persons with internet access who will eFile a document and/or be listed as a contact for an intervenor must create and validate an eRegistration account using the eRegistration link. Select the eFiling link to log on and submit the intervention or protests.

    Persons unable to file electronically should submit an original and 5 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426.

    The filings in the above proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the website that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email [email protected] call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

    Comment Date: 5:00 p.m. Eastern time on March 7, 2018.

    Dated: February 15, 2018. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2018-03647 Filed 2-21-18; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Project No. 2804-035] Goose River Hydro, Inc.; Notice of Application Tendered for Filing With the Commission and Soliciting Additional Study Requests

    Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection.

    a. Type of Application: New minor license

    b. Project No.: P-2804-035

    c. Date filed: February 2, 2018

    d. Applicant: Goose River Hydro, Inc.

    e. Name of Project: Goose River Hydroelectric Project

    f. Location: On the Goose River, near Belfast, Waldo County, Maine. No federal or tribal lands would be occupied by project works or located within the project boundary.

    g. Filed Pursuant to: Federal Power Act 16 U.S.C. 791(a)-825(r).

    h. Applicant Contact: Nicholas Cabral, Goose River Hydro Inc., 67 Swan Lake Ave., Belfast, ME 04095, (207)-604-4394, [email protected]

    i. FERC Contact: Julia Kolberg, 888 1st St. NE, Washington, DC 20426, (202) 502-8261, [email protected]

    j. Cooperating agencies: Federal, state, local, and tribal agencies with jurisdiction and/or special expertise with respect to environmental issues that wish to cooperate in the preparation of the environmental document should follow the instructions for filing such requests described in item l below. Cooperating agencies should note the Commission's policy that agencies that cooperate in the preparation of the environmental document cannot also intervene. See, 94 FERC ¶ 61,076 (2001).

    k. Pursuant to section 4.32(b)(7) of 18 CFR of the Commission's regulations, if any resource agency, Indian Tribe, or person believes that an additional scientific study should be conducted in order to form an adequate factual basis for a complete analysis of the application on its merit, the resource agency, Indian Tribe, or person must file a request for a study with the Commission not later than 60 days from the date of filing of the application, and serve a copy of the request on the applicant.

    l. Deadline for filing additional study requests and requests for cooperating agency status: April 3, 2018.

    The Commission strongly encourages electronic filing. Please file additional study requests and requests for cooperating agency status using the Commission's eFiling system at http://www.ferc.gov/docs-filing/efiling.asp. For assistance, please contact FERC Online Support at [email protected], (866) 208-3676 (toll free), or (202) 502-8659 (TTY). In lieu of electronic filing, please send a paper copy to: Secretary, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426. The first page of any filing should include docket number P-2804-033.

    m. The application is not ready for environmental analysis at this time.

    n. The project consists of the following existing facilities:

    Swan Lake Dam

    (1) A 14-foot-high, 250-foot-long rock masonry gravity dam impounding Swan Lake with a surface area of approximately 1,364 acres at an elevation of 201 feet above sea level; (2) a concrete inlet structure; (3) three manually operated butterfly gates that regulate flow through the inlet structure; (4) two culverts the convey flow under Route 141; and (5) appurtenant facilities.

    Mason's Dam

    (1) A 15-foot-high, 86-foot-long rock masonry dam impounding a reservoir with a storage capacity of approximately 1,621 acre-feet at an elevation of 188 feet above sea level; (2) a concrete inlet structure; (3) a manually operated gate regulating flow from the inlet structure to the penstock; (4) a 350-foot-long steel penstock; (5) a 266-square-foot concrete powerhouse containing two Kaplan turbines and generating units with a licensed capacity of 75 kW; (6) a 300-foot-long, 12-kilovolt (kV) transmission line and (7) appurtenant facilities.

    Kelley Dam

    (1) A 15-foot-high, 135-foot-long masonry gravity dam impounding a reservoir with a storage capacity of approximately 200 acre-feet at an elevation of approximately 159 feet above sea level; and (2) three manually operated gates.

    Mill Dam

    (1) A 6-foot-tall, 70-foot-wide masonry dam impounding a reservoir with a storage capacity of approximately 7 acre-feet at an elevation of approximately 128 feet above sea level; (2) a concrete inlet structure; (3) a trash sluice with wooden stop logs; (4) a 3-foot-diameter, 110-foot-long plastic penstock; (5) a powerhouse containing a Francis-type turbine and generator unit with a licensed capacity of 94 kW; and (6) an approximately 100-foot-long, 12-kV transmission line.

    CMP Dam

    (1) A 21-foot-high, 231-foot-long buttress dam impounding a reservoir with a storage capacity of approximately 72 acre-feet at an elevation of approximately 109 feet above sea level; (2) a 5-foot-diameter, 1,200-foot-long steel penstock; (3) a 300-square-foot concrete and timber powerhouse with a Kaplan-type turbine and generator unit with a licensed capacity of 200 kW; and (4) an approximately 500-foot-long, 12-kV transmission line.

    o. A copy of the application is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's website at http://www.ferc.gov using the “eLibrary” link. Enter the docket number excluding the last three digits in the docket number field to access the document. For assistance, contact FERC Online Support. A copy is also available for inspection and reproduction at the address in item h above.

    You may also register online at http://www.ferc.gov/docs-filing/esubscription.asp to be notified via email of new filings and issuances related to this or other pending projects. For assistance, contact FERC Online Support.

    p. Procedural schedule: The application will be processed according to the following preliminary schedule. Revisions to the schedule will be made as appropriate.

    Issue Deficiency Letter—March 2018 Issue Notice of Acceptance—July 2018 Issue Scoping Document for comments—August 2018 Comments on Scoping Document—October 2018 Issue notice of ready for environmental analysis—November 2018 Commission issues EA—April 2019 Comments on EA—May 2019 Dated: February 14, 2018. Kimberly D. Bose, Secretary.
    [FR Doc. 2018-03556 Filed 2-21-18; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Combined Notice of Filings #1

    Take notice that the Commission received the following electric rate filings:

    Docket Numbers: ER18-1-002.

    Applicants: California Independent System Operator Corporation

    Description: Compliance filing: 2018-02-14 Petition for Limited Tariff Waiver to Delay Implementation RSI 1b & 2 to be effective N/A.

    Filed Date: 2/14/18.

    Accession Number: 20180214-5133.

    Comments Due: 5 p.m. ET 2/21/18.

    Docket Numbers: ER18-499-001.

    Applicants: Southwestern Electric Power Company.

    Description: Tariff Amendment: SWEPCO-HOPE PSA RS#125 A&R Windcatcher—Deferral to be effective 1/1/2018.

    Filed Date: 2/15/18.

    Accession Number: 20180215-5000.

    Comments Due: 5 p.m. ET 3/8/18.

    Docket Numbers: ER18-500-001.

    Applicants: Southwestern Electric Power Company.

    Description: Tariff Amendment: SWEPCO-Bentonville PSA RS#126 A&R Windcatcher Deferral Filing to be effective 1/1/2018.

    Filed Date: 2/14/18.

    Accession Number: 20180214-5166.

    Comments Due: 5 p.m. ET 3/7/18.

    Docket Numbers: ER18-858-000.

    Applicants: PJM Interconnection, L.L.C.

    Description: § 205(d) Rate Filing: Amendment to ISA, Service Agreement No. 4189; Queue No. Z2-012 to be effective 6/10/2015.

    Filed Date: 2/15/18.

    Accession Number: 20180215-5041.

    Comments Due: 5 p.m. ET 3/8/18.

    Docket Numbers: ER18-859-000.

    Applicants: Pacific Gas and Electric Company.

    Description: Request for a One-Time Tariff Waiver Pacific Gas and Electric Company.

    Filed Date: 2/14/18.

    Accession Number: 20180214-5176.

    Comments Due: 5 p.m. ET 3/7/18.

    Docket Numbers: ER18-860-000.

    Applicants: East River Electric Power Cooperative, Inc.

    Description: Request for Limited Waiver of Tariff Provisions of East River Electric Power Cooperative, Inc.

    Filed Date: 2/14/18.

    Accession Number: 20180214-5181.

    Comments Due: 5 p.m. ET 3/7/18.

    Take notice that the Commission received the following qualifying facility filings:

    Docket Numbers: QF17-935-000: QF18-936-000.

    Applicants: Zeeland Farm Services, Inc.

    Description: Refund report of Zeeland Farm Services, Inc.

    Filed Date: 2/14/18.

    Accession Number: 20180214-5170.

    Comments Due: 5 p.m. ET 3/7/18.

    The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.

    Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.

    eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at: http://www.ferc.gov/docs-filing/efiling/filing-req.pdf. For other information, call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

    Dated: February 15, 2018. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2018-03645 Filed 2-21-18; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. PR18-30-000] The City of Alexandria, Louisiana v. EnLink LIG, LLC; Notice of Complaint

    Take notice that on February 13, 2018, pursuant to Rules 206 and 212 of the Federal Energy Regulatory Commission's (FERC or Commission) Rules of Practice and Procedure, 18 CFR 385.206, and .212 (2017), and the Commission's regulations governing transportation service provided under section 311 of the Natural Gas Policy Act of 1978, 18 CFR part 284, the City of Alexandria, Louisiana (Complainant) filed a formal complaint against EnLink LIG, LLC (EnLink or Respondent) requesting relief from EnLink's alleged violations of its FERC filed Statement of Operating Conditions, all as more fully explained in the complaint.

    Complainant certifies that copies of complaint were served on the contact of EnLink as listed on the Commission's list of Corporate Officials, the Office of the General Counsel for the Louisiana Public Service Commission, and the Louisiana Department of Natural Resources.

    Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. The Respondent's answer and all interventions, or protests must be filed on or before the comment date. The Respondent's answer, motions to intervene, and protests must be served on the Complainant.

    The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at http://www.ferc.gov. Persons unable to file electronically should submit an original and 5 copies of the protest or intervention to the Federal Energy Regulatory Commission, 888 First Street, NE, Washington, DC 20426.

    This filing is accessible on-line at http://www.ferc.gov, using the “eLibrary” link and is available for review in the Commission's Public Reference Room in Washington, DC. There is an “eSubscription” link on the website that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email [email protected], or call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

    Comment Date: 5:00 p.m. Eastern Time on February 20, 2018.

    Dated: February 14, 2018. Kimberly D. Bose, Secretary.
    [FR Doc. 2018-03557 Filed 2-21-18; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. CP18-81-000] Northern Natural Gas Company; Notice of Request Under Blanket Authorization

    Take notice that on February 5, 2018, Northern Natural Gas Company (Northern), 111 South 103rd Street, Omaha, Nebraska 68124-1000, filed in Docket No. CP18-81-000 a prior notice request pursuant to sections 157.205, 157.208 and 157.216 of the Commission's regulations under the Natural Gas Act (NGA), and Northern's blanket certificate issued in Docket No. CP82-401-000, to construct its Marquette Branch Line Expansion Project (Project). The Project consists of: (i) Construction of the new East Wakefield compressor station consisting of two 1,590-horsepower natural gas-fired turbine compressor units in Gogebic County, Michigan; (ii) construction of a new regulator station near West Ishpeming in Marquette County, Michigan; (iii) uprating the maximum allowable operating pressure (MAOP) of a 12.2-mile segment of Northern's existing 12- and 16-inch-diameter Marquette branch line in Marquette County, Michigan; and (iv) abandonment of short segments of pipeline to accommodate station tie-ins in Gogebic and Marquette Counties, Michigan. The Project will allow Northern to deliver 24,610 dekatherms per day of incremental service to Upper Michigan Energy Resources Corporation. Northern estimates the cost of the Project to be approximately $22,124,718, all as more fully set forth in the application which is on file with the Commission and open to public inspection. The filing may also be viewed on the web at http://www.ferc.gov using the eLibrary link. Enter the docket number excluding the last three digits in the docket number field to access the document. For assistance, please contact FERC Online Support at [email protected] or toll free at (866) 208-3676, or TTY, contact (202) 502-8659.

    Any questions concerning this application may be directed to Michael T. Loeffler, Senior Director, Certificates and External Affairs, Northern Natural Gas Company, PO Box 3330, Omaha, Nebraska 68103-0330, by telephone at (402) 398-7103, by facsimile at (402) 398-7190, or by email at [email protected]

    Any person or the Commission's staff may, within 60 days after issuance of the instant notice by the Commission, file pursuant to Rule 214 of the Commission's Procedural Rules (18 CFR 385.214) a motion to intervene or notice of intervention and pursuant to section 157.205 of the regulations under the NGA (18 CFR 157.205), a protest to the request. If no protest is filed within the time allowed therefore, the proposed activity shall be deemed to be authorized effective the day after the time allowed for filing a protest. If a protest is filed and not withdrawn within 30 days after the allowed time for filing a protest, the instant request shall be treated as an application for authorization pursuant to section 7 of the NGA.

    Pursuant to section 157.9 of the Commission's rules (18 CFR 157.9), within 90 days of this Notice, the Commission staff will either: complete its environmental assessment (EA) and place it into the Commission's public record (eLibrary) for this proceeding; or issue a Notice of Schedule for Environmental Review. If a Notice of Schedule for Environmental Review is issued, it will indicate, among other milestones, the anticipated date for the Commission staff's issuance of the EA for this proposal. The filing of the EA in the Commission's public record for this proceeding or the issuance of a Notice of Schedule for Environmental Review will serve to notify federal and state agencies of the timing for the completion of all necessary reviews, and the subsequent need to complete all federal authorizations within 90 days of the date of issuance of the Commission staff's EA.

    Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commenters will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. Environmental commenters will not be required to serve copies of filed documents on all other parties. However, the non-party commenters, will not receive copies of all documents filed by other parties or issued by the Commission (except for the mailing of environmental documents issued by the Commission) and will not have the right to seek court review of the Commission's final order.

    The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the eFiling link at http://www.ferc.gov. Persons unable to file electronically should submit an original and seven copies of the protest or intervention to the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426.

    Dated: February 15, 2018. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2018-03646 Filed 2-21-18; 8:45 am] BILLING CODE 6717-01-P
    ENVIRONMENTAL PROTECTION AGENCY [EPA-HQ-OAR-2016-0347; FRL-9974-80-OAR] RIN 2060-AT35 Response to June 1, 2016 Clean Air Act Section 126(b) Petition From Connecticut AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Notice of proposed action on petition.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to deny a section 126(b) petition submitted by the state of Connecticut pursuant to the Clean Air Act (CAA or Act) on June 1, 2016. The petition requested that EPA make a finding that emissions from Brunner Island Steam Electric Station (Brunner Island), located in York County, Pennsylvania, are significantly contributing to nonattainment and interfering with maintenance of the 2008 ozone national ambient air quality standards (NAAQS) in Connecticut in violation of the good neighbor provision under the CAA. The EPA proposes to deny the petition because Connecticut has not met its burden to demonstrate that the source emits or would emit in violation of the good neighbor provision such that it will significantly contribute to nonattainment or interfere with maintenance of the 2008 ozone NAAQS in Connecticut. The EPA is further proposing to deny the petition based on the conclusion that the Brunner Island facility does not currently emit nor is it expected to emit pollution in violation of the good neighbor provision for the 2008 ozone NAAQS.

    DATES:

    Comments. Comments must be received on or before March 26, 2018. Public Hearing. The EPA is holding a public hearing on the EPA's response to the June 1, 2016, CAA section 126(b) petition from Connecticut on Friday, February 23, 2018. Additional information for this public hearing is available in a separate Federal Register notice published on February 14, 2018 (83 FR 6490).

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2016-0347, at http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the Web, Cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Questions concerning this proposed notice should be directed to Mr. Lev Gabrilovich, U.S. Environmental Protection Agency, Office of Air Quality Planning and Standards, Air Quality Policy Division, Mail Code C539-01, Research Triangle Park, NC 27711, telephone (919) 541-1496; email at [email protected]

    SUPPLEMENTARY INFORMATION:

    The information in this document is organized as follows:

    I. General Information II. Background and Legal Authority A. Ozone and Public Health B. Clean Air Act Sections 110 and 126 C. The EPA's Historical Approach to Addressing Interstate Transport of Ozone under the Good Neighbor Provision D. The June 2016 CAA Section 126(b) Petition from Connecticut E. The Brunner Island Facility III. The EPA's Proposed Decision on Connecticut's CAA Section 126(b) Petition A. The EPA's Approach for Granting or Denying CAA Section 126(b) Petitions Regarding the 2008 8-hour Ozone NAAQS B. The EPA's Proposal to Deny Connecticut's CAA Section 126(b) Petition IV. Statutory Authority I. General Information

    Throughout this document wherever “we,” “us,” or “our” is used, we mean the U.S. EPA. Where can I get a copy of this document and other related information?

    The EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2016-0347 (available at http://www.regulations.gov). The EPA has made available information related to the proposed action and the public hearing at website: https://www.epa.gov/ozone-pollution/connecticut-126-petition.

    II. Background and Legal Authority A. Ozone and Public Health

    Ground-level ozone is not emitted directly into the air, but is a secondary air pollutant created by chemical reactions between oxides of nitrogen (NOX) and volatile organic compounds (VOCs) in the presence of sunlight. For a discussion of ozone-formation chemistry, interstate transport issues, and health effects, see the Cross-State Air Pollution Rule Update for the 2008 Ozone NAAQS. 81 FR 74504, 74513-4.

    B. Clean Air Act Sections 110 and 126

    The statutory authority for this action is provided by the CAA sections 126 and 110(a)(2)(D)(i). Section 126(b) of the CAA provides, among other things, that any state or political subdivision may petition the Administrator of the EPA to find that any major source or group of stationary sources in an upwind state emits or would emit any air pollutant in violation of the prohibition of CAA section 110(a)(2)(D)(i),1 which we describe later in detail. Findings by the Administrator, pursuant to this section, that a source or group of sources emits air pollutants in violation of the CAA section 110(a)(2)(D)(i) prohibition are commonly referred to as section CAA 126(b) findings. Similarly, petitions submitted pursuant to this section are commonly referred to as CAA section 126(b) petitions.

    1 The text of CAA section 126 codified in the U.S. Code cross-references section 110(a)(2)(D)(ii) instead of section 110(a)(2)(D)(i). The courts have confirmed that this is a scrivener's error and the correct cross-reference is to CAA section 110(a)(2)(D)(i), See Appalachian Power Co. v. EPA, 249 F.3d 1032, 1040-44 (DC Cir. 2001).

    CAA section 126(c) explains the impact of a CAA section 126(b) finding and establishes the conditions under which continued operation of a source subject to such a finding may be permitted. Specifically, CAA section 126(c) provides that it would be a violation of section 126 of the Act and of the applicable state implementation plan (SIP): (1) For any major proposed new or modified source subject to a CAA section 126(b) finding to be constructed or operate in violation of the prohibition of CAA section 110(a)(2)(D)(i); or (2) for any major existing source for which such a finding has been made to operate more than three months after the date of the finding. The statute, however, also gives the Administrator discretion to permit the continued operation of a source beyond 3 months if the source complies with emission limitations and compliance schedules provided by the EPA to bring about compliance with the requirements contained in CAA sections 110(a)(2)(D)(i) and 126 as expeditiously as practicable but no later than 3 years from the date of the finding. Id.

    Section 126(b) of the CAA provides a mechanism for states and other political subdivisions to seek abatement of pollution in other states that may be affecting their air quality; however, it does not identify specific criteria or a specific methodology for the Administrator to apply when deciding whether to make a section 126(b) finding or deny a petition. Therefore, the EPA has discretion to identify relevant criteria and develop a reasonable methodology for determining whether a section 126(b) finding should be made. See, e.g., Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837, 842-43 (1984); Smiley v. Citibank, 517 U.S. 735, 744-45 (1996). As an initial matter, the EPA's historic approach to evaluating CAA section 126(b) petitions looks first to see whether a petition identifies or establishes a technical basis for the requested section 126(b) finding. The EPA first evaluates the technical analysis in the petition to see if that analysis, standing alone, is sufficient to support a section 126(b) finding. The EPA focuses on the analysis in the petition because the statute does not require the EPA to conduct an independent technical analysis to evaluate claims made in section 126(b) petitions. The petitioner thus bears the burden of establishing, as an initial matter, a technical basis for the specific finding requested. The EPA has no obligation to prepare an analysis to supplement a petition that fails, on its face, to include an initial technical demonstration. Such a petition, or a petition that fails to identify the specific finding requested, could be found insufficient.

    Nonetheless, the EPA may decide to conduct independent analyses when helpful in evaluating the basis for a potential section 126(b) finding or developing a remedy if a finding is made. As explained later, given the EPA's concerns with the technical information submitted as part of Connecticut's CAA section 126(b) petition, and the fact that the EPA has previously issued a rulemaking defining and at least partially addressing the same environmental concern that the petition seeks to address, the EPA determined that it was appropriate to conduct independent analysis to determine whether it should grant or deny the petition. Such analysis, however, is not required by the statute and may not be necessary or appropriate in other circumstances.

    Section 110(a)(2)(D)(i) of the CAA, often referred to as the “good neighbor” or “interstate transport” provision of the Act, requires states to prohibit certain emissions from in-state sources if such emissions impact the air quality in downwind states. Specifically, CAA sections 110(a)(1) and 110(a)(2)(D)(i)(I) requires all states, within 3 years of promulgation of a new or revised NAAQS, to submit SIPs that contain adequate provisions prohibiting any source or other type of emissions activity within the state from emitting any air pollutant in amounts which will contribute significantly to nonattainment in, or interfere with maintenance by, any other state with respect to any such national primary or secondary ambient air quality standard. As described further in section II.C, the EPA has developed a number of regional rulemakings to address CAA section 110(a)(2)(D)(i)(I) for the ozone NAAQS. The EPA's most recent rulemaking, the Cross-State Air Pollution Rule Update (CSAPR Update), was promulgated to address interstate transport under section 110(a)(2)(D)(i)(I) for the 2008 ozone NAAQS. 81 FR 74504 (October 26, 2016).

    Considering both section 110(a)(2)(D)(i) and section 126, the EPA has consistently acknowledged that Congress created these provisions as two independent statutory tools to address the problem of interstate pollution transport. See, e.g., 76 FR 69052, 69054 (November 7, 2011).2 Congress provided both provisions without indicating any preference for one over the other, suggesting it viewed either approach as a legitimate means to produce the desired result. While the two provisions unquestionably may be applied independently, they are also closely linked in that a violation of the prohibition in CAA section 110(a)(2)(D)(i) is a condition precedent for action under CAA section 126(b) and, critically, that significant contribution and interference with maintenance are construed identically for purposes of both provisions (since the identical terms are naturally interpreted as meaning the same thing in the two linked provisions). See Appalachian Power Co. v EPA, 249 F. 3d at 1049-50. Thus, in interpreting the phrase “emits or would emit in violation of the prohibition of section [110(a)(2)(D)(i)],” if the EPA or a state has adopted provisions that eliminate the significant contribution to nonattainment or interference with maintenance in downwind states, then there simply is no violation of the CAA section 110(a)(2)(D)(i)(I) prohibition. Put another way, requiring additional reductions would result in eliminating emissions that do not contribute significantly to nonattainment or interfere with maintenance of the NAAQS, an action beyond the scope of the prohibition in CAA section 110(a)(2)(D)(i)(I) and therefore beyond the scope of EPA's authority to make the requested finding under CAA section 126(b). See EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584, 1604 n.18, 1608-09 (2014) (holding the EPA may not require sources in upwind states to reduce emissions by more than necessary to eliminate significant contribution to nonattainment or interference with maintenance of the NAAQS in downwind states under the good neighbor provision).

    2 Courts have also upheld the EPA's position that CAA sections 110(a)(2)(D)(i) and section 126 are two independent statutory tools to address the same problem of interstate transport. See GenOn REMA, LLC v. EPA, 722 F.3d 513, 520-23 (3d Cir. 2013); Appalachian Power Co. v. EPA, 249 F.3d at 1047.

    Thus, it follows that if a state already has a SIP that the EPA approved as adequate to meet the requirements of CAA section 110(a)(2)(D)(i)(I), the EPA would not find that a source in that state was emitting in violation of the prohibition of CAA section 110(a)(2)(D)(i)(I) absent new information demonstrating that the SIP is now insufficient to address the prohibition. Similarly, if a state had failed to adopt an approvable SIP meeting the requirements of CAA section 110(a)(2)(D)(i)(I) and the EPA consequently promulgated a federal implementation plan (FIP) that fully addressed the deficiency, the FIP would eliminate emissions that significantly contribute to nonattainment or interfere with maintenance in a downwind state, and, hence, absent new information to the contrary, sources in the upwind state would not emit in violation of the section 110(a)(2)(D)(i)(I) prohibition.3

    3 Note however, a SIP or FIP implementing section 110(a)(2)(D)(i)(I) only means that a state's emissions are adequately prohibited for the particular set of facts analyzed under approval of a SIP or promulgation of a FIP. For example, if a petitioner produces new data or information showing a different level of contribution or other facts not considered when the SIP or FIP was promulgated, compliance with a SIP or FIP may not be determinative regarding whether the upwind sources would emit in violation of the prohibition of section 110(a)(2)(D)(i)(I). See 64 FR 28250, 28274 n.15 (May 25, 1999); 71 FR 25328, 25336 n.6 (April 28, 2006); Appalachian Power, 249 F.3d at 1067 (later developments can be the basis for another CAA section 126 petition).

    C. The EPA's Historical Approach To Addressing Interstate Transport of Ozone Under the Good Neighbor Provision

    Given that ozone formation, atmospheric residence, and transport occur on a regional scale (i.e., hundreds of miles) over much of the eastern U.S., the EPA has historically addressed interstate transport of ozone pursuant to the good neighbor provision through a series of regional rulemakings focused on the reduction of NOX emissions, routinely finding that downwind states' problems attaining and maintaining the ozone NAAQS result in part from the contribution of pollution from multiple upwind sources located in different upwind states. For example, the EPA noted in the NOX SIP Call that “[t]he fact that virtually every nonattainment problem is caused by numerous sources over a wide geographic area is a factor suggesting that the solution to the problem is the implementation over a wide area of controls on many sources, each of which may have a small or unmeasurable ambient impact by itself.” 63 FR 57356, 57377 (October 27, 1998).

    The EPA has promulgated four regional interstate transport rulemakings that have addressed the good neighbor provision with respect to various ozone NAAQS. The EPA's first such rulemaking, the NOX SIP Call, addressed interstate transport with respect to the 1979 ozone NAAQS and was finalized on October 27, 1998. 63 FR 57356. The NOX SIP Call promulgated statewide emission budgets and required upwind states to adopt SIPs which would decrease NOX emissions by amounts that would significantly contribute to nonattainment of the ozone NAAQS in downwind states. The EPA also promulgated a model rule for a regional allowance trading program called the NOX Budget Trading Program that states could adopt in their SIPs as a mechanism to achieve some or all of the required emission reductions. Id. All of the jurisdictions covered by the NOX SIP Call ultimately chose to adopt the NOX Budget Trading Program into their SIPs.4

    4 The NOX Budget Trading Program operated from 2003 through 2008. Beginning in 2009, it was effectively replaced by the ozone season NOX Budget Trading program under the Clean Air Interstate Rule (CAIR).

    In coordination with the NOX SIP Call rulemaking under CAA section 110(a)(2)(D)(i)(I), the EPA also addressed several pending CAA section 126(b) petitions submitted by eight northeastern states regarding the same air quality issues (i.e., interstate ozone transport for the 1979 ozone NAAQS) addressed by the NOX SIP Call. These CAA section 126(b) petitions asked the EPA to find that ozone emissions from numerous sources located in 22 states, and the District of Columbia, had adverse air quality impacts on the petitioning downwind states. Based on technical determinations made in the NOX SIP Call regarding upwind state impacts on downwind air quality, the EPA in May 1999 made technical determinations regarding the claims in the petitions, but did not at that time make the CAA section 126(b) findings requested by the petitions. 64 FR 28250. In making these technical determinations, the EPA concluded that the NOX SIP Call would itself fully address and remediate the claims raised in these petitions, and that the EPA would therefore not need to take separate action to remedy any potential violations of the CAA section 110(a)(2)(D)(i) prohibition. 64 FR 28252 (May 25, 1999). However, more than 2 years after the petitions were submitted, subsequent litigation over the NOX SIP Call led the EPA to “de-link” the CAA section 126(b) petition response from the NOX SIP Call, and the EPA made final CAA section 126(b) findings for 12 states and the District of Columbia, finding sources in the states emitted in violation of the prohibition in the good neighbor provision with respect to the 1979 ozone NAAQS based on the affirmative technical determinations made in the May 1999 rulemaking. In order to remedy the violation under CAA section 126(c), the EPA promulgated requirements for affected sources in the upwind states to participate in a regional allowance trading program whose requirements were designed to be interchangeable with the requirements of the optional NOX Budget Trading Program model rule provided under the NOX SIP Call. 65 FR 2674 (January 18, 2000).

    The EPA next promulgated the Clean Air Interstate Rule (CAIR) to address interstate transport under the good neighbor provision with respect to the 1997 ozone NAAQS, as well as the 1997 PM2.5 NAAQS. The EPA adopted the same framework to quantifying the level of states' significant contribution to downwind nonattainment in CAIR as it used in the NOX SIP Call, based on the determination in the NOX SIP Call that downwind ozone nonattainment is due to the impact of emissions from numerous upwind sources and states. 70 FR 25162, 25172 (May 12, 2005). Regarding the contribution to downwind pollution from upwind states, the EPA explained that “[t]ypically, two or more States contribute transported pollution to a single downwind area, so that the `collective contribution' is much larger than the contribution of any single State.” Id. at 25186. CAIR included two distinct regulatory processes—a regulation to define significant contribution (i.e., the emission reduction obligation) under the good neighbor provision and provide for submission of SIPs eliminating that contribution, 70 FR 25162 (May 12, 2005), and a regulation to promulgate, where necessary, FIPs imposing emission limitations, 71 FR 25328 (April 28, 2006). The FIPs required electric generating units (EGUs) in affected states to participate in regional allowance trading programs, which replaced the previous NOX Budget Trading Program.

    In conjunction with the second CAIR regulation promulgating FIPs, the EPA acted on a CAA section 126(b) petition received from the state of North Carolina on March 19, 2004, seeking a finding that large EGUs located in 13 states were significantly contributing to nonattainment and/or interfering with maintenance of the 1997 ozone and 1997 PM2.5 NAAQS in North Carolina. Citing the analyses conducted to support the promulgation of CAIR, the EPA denied the CAA section 126(b) petition in full based on a determination either that the named states were not adversely impacting downwind air quality in violation of the good neighbor provision, or that such impacts were fully remedied by implementation of the emission reductions required by the CAIR FIPs. 71 FR 25328, 25330 (April 28, 2006) (discussing the EPA's basis for denial in part because the EPA promulgated FIPs concurrently with the CAA section 126(b) response requiring elimination of the interstate transport problems within petitioning states).

    CAIR was remanded to the EPA by the D.C. Circuit in July 2008 with the instruction that the EPA replace the rule “from the ground up.” North Carolina v. EPA, 531 F.3d 896, 929 (D.C. Cir. 2008). Accordingly, the EPA was required to redo its analysis and ensure that implementation of the good neighbor provision would be consistent with the D.C. Circuit's instructions in North Carolina.

    On August 8, 2011, the EPA promulgated the Cross-State Air Pollution Rule (CSAPR) to replace CAIR. 76 FR 48208 (August 8, 2011). CSAPR addressed the same ozone and PM2.5 NAAQS as CAIR and, in addition, addressed interstate transport for the 2006 PM2.5 NAAQS by requiring 28 states to reduce SO2 emissions, annual NOX emissions, and/or ozone season NOX emissions that would significantly contribute to other states' nonattainment or interfere with other states' abilities to maintain these air quality standards. Consistent with prior determinations made in the NOX SIP Call and CAIR, the EPA continued to find that multiple upwind states contributed to downwind ozone nonattainment. Specifically, the EPA found “that the total `collective contribution' from upwind sources represents a large portion of PM2.5 and ozone at downwind locations and that the total amount of transport is composed of the individual contribution from numerous upwind states.” Id. at 48237. Accordingly, the EPA conducted a regional analysis, calculated emission budgets for affected states, and required EGUs in these states to participate in new regional allowance trading programs in order to reduce statewide emission levels. CSAPR was subject to nearly 4 years of litigation in which the Supreme Court upheld EPA's approach to calculating emission reduction obligations and apportioning upwind state responsibility under the good neighbor provision, but also held that the EPA was precluded from requiring more emission reductions than necessary to address downwind air quality problems. EPA v. EME Homer City Generation, L.P., 134 S. Ct. at 1607-1609.

    Most recently, the EPA promulgated the CSAPR Update to address the good neighbor provision requirements for the 2008 ozone NAAQS. 81 FR 74504 (October 26, 2016). The final CSAPR Update built upon previous efforts to address the collective contributions of ozone pollution from states in the eastern U.S. to downwind air quality problems, including the NOX SIP Call, CAIR, and the original CSAPR. The CSAPR Update finalized EGU NOX ozone season emission budgets for affected states that were developed using uniform control stringency available at a marginal cost of $1,400 per ton of NOX reduced. This level of control stringency represented the potential for operating and optimizing existing selective catalytic reduction (SCRs) controls; installing state-of-the-art NOX combustion controls; and shifting generation to existing units with lower NOX emission rates within the same state.

    The CSAPR Update finalized enforceable measures necessary to achieve the emission reductions in each state by requiring power plants in covered states to participate in the CSAPR NOX Ozone Season Group 2 allowance trading program. The CSAPR Update's trading programs and the EPA's prior emission trading programs (e.g., the NOX Budget Trading Program associated with the NOX SIP Call) provide a proven, cost-effective implementation framework for achieving emission reductions. In addition to providing environmental certainty (i.e., a cap on regional and statewide emissions), these programs also provide regulated sources with flexibility when choosing compliance strategies. This implementation approach was shaped by previous rulemakings and reflects the evolution of these programs in response to court decisions and practical experience gained by states, industry, and the EPA.

    While some aspects of these rulemakings have been challenged in court—and some aspects of these challenges have been upheld—each of these rulemakings essentially followed the same four-step framework to quantify and implement emission reductions necessary to address the interstate transport requirements of the good neighbor provision. These steps are:

    (1) Identifying downwind air quality problems relative to the ozone NAAQS. The EPA has identified downwind areas with air quality problems considering monitored ozone data where appropriate and air quality modeling projections to a future compliance year. In CSAPR and the CSAPR Update, the agency identified not only those areas expected to be in nonattainment with the ozone NAAQS, but also those areas that may struggle to maintain the NAAQS, despite clean monitored data or projected attainment;

    (2) determining which upwind states are “linked” to these identified downwind air quality problems and warrant further analysis to determine whether their emissions violate the good neighbor provision. In CSAPR and the CSAPR Update, the EPA identified such upwind states as those modeled to contribute at or above a threshold equivalent to one percent of the applicable NAAQS. Upwind states linked to one of these downwind nonattainment or maintenance areas were then evaluated to determine what level of emissions reductions, if any, should be required of each state;

    (3) for states linked to downwind air quality problems, identifying upwind emissions on a statewide basis that significantly contribute to nonattainment or interfere with maintenance of a standard. In all four of the EPA's prior rulemakings, the EPA apportioned emission reduction responsibility among multiple upwind states linked to downwind air quality problems using cost-based and air quality-based criteria to quantify the amount of a linked upwind state's emissions that significantly contribute to nonattainment or interfere with maintenance in another state; and

    (4) for states that are found to have emissions that significantly contribute to nonattainment or interfere with maintenance of the NAAQS downwind, implementing the necessary emission reductions within the state. The EPA has done this by requiring affected sources in upwind states to participate in allowance trading programs to achieve the necessary emission reductions.

    In finalizing the CSAPR Update, the EPA determined the rule may only be a partial resolution of the good neighbor obligation and that the emission reductions required by the rule “may not be all that is needed” to address transported emissions. 81 FR 74521-522 (October 26, 2016). The EPA noted that the information available at that time indicated that downwind air quality problems remained after implementation of the CSAPR Update to which upwind states continued to be linked at or above the one percent threshold. However, the EPA could not determine whether, at step three of the four-step framework, the EPA had quantified all emission reductions that may be considered highly cost effective because the rule did not evaluate non-EGU ozone season NOX reductions and further EGU control strategies that are achievable on longer timeframes after 2017 (e.g., the implementation of new post-combustion controls).

    Of particular relevance to this proposal, the EPA determined in the CSAPR Update that emissions from Pennsylvania were linked to both nonattainment and maintenance concerns for the 2008 ozone NAAQS in Connecticut based on projections to 2017. 81 FR 74538, 74539. The EPA found there were cost-effective emission reductions that could be achieved within Pennsylvania, quantified an emission budget for the state, and required EGUs located within the state, including the source identified in Connecticut's petition, to comply with EPA's trading program under the CSAPR Update. These emission budgets were imposed in order to achieve necessary emission reductions and mitigate upwind states', including Pennsylvania's, impact on downwind states' air quality.

    D. The June 2016 CAA Section 126(b) Petition From Connecticut

    On March 12, 2008, the EPA promulgated a revision to the ozone NAAQS, lowering both the primary and secondary standards to 75 ppb.5 Subsequently, on June 1, 2016, the state of Connecticut, through the Connecticut Department of Energy and Environmental Protection (Connecticut), submitted a CAA section 126(b) petition alleging that emissions from Brunner Island significantly contribute to nonattainment and/or interfere with maintenance of the 2008 ozone NAAQS in Connecticut.6 In particular, the petition contends that emissions from Brunner Island significantly contribute to nonattainment and interfere with maintenance of the 2008 ozone NAAQS at six out of 12 ozone monitors in Connecticut. In support of this assertion, the petition contends that emissions from Brunner Island contribute levels equal to or greater than one percent of the 2008 ozone NAAQS to downwind nonattainment and maintenance receptors. The petition further contends that Brunner Island is able to reduce emissions at a reasonable cost using readily available control options. The petition therefore concludes that, consistent with EPA's past approaches to addressing interstate transport of ozone, NOX emissions from Brunner Island significantly contribute to nonattainment and interfere with maintenance of the 2008 ozone NAAQS in Connecticut. The petition requests that the EPA direct the operators of Brunner Island to reduce NOX emissions to eliminate this impact.

    5See National Ambient Air Quality Standards for Ozone, Final Rule, 73 FR 16436 (March 27, 2008).

    6 Petition of the State of Connecticut Pursuant to Section 126 of the Clean Air Act, submitted June 1, 2016. The petition is available in the docket for this action.

    The petition cites several sources of data for its contention that Brunner is impacting air quality in Connecticut. First, the petition notes that 10 out of 12 air quality monitors in Connecticut were violating the 2008 ozone NAAQS based on 2012-2014 data and preliminary 2013-2015 data available at the time the petition was submitted.7 The petition further cites to modeling conducted by the EPA to support development of the CSAPR Update to claim that four ozone monitors in Connecticut were projected to have nonattainment or maintenance concerns in 2017.8

    7 Of the 12 monitors in Connecticut, 7 are violating the 2008 ozone NAAQS based on 2014-2016 data. See ozone design value table available at https://www.epa.gov/air-trends/air-quality-design-values#report.

    8 The petition referred to modeling conducted for purposes of the proposed CSAPR Update in 2015. See 80 FR 75706, 75725-726 (December 3, 2015). The EPA conducted updated modeling to support the final rulemaking, which also identified four projected nonattainment and maintenance receptors in 2017. 81 FR 74533.

    To support the conclusion that Brunner Island impacts air quality at some of these monitoring sites, Connecticut provides a technical memorandum from Sonoma Technologies, Inc., outlining the results of modeling that analyzed the impact of NOX emissions from Brunner Island on Connecticut. According to the petition, this modeling shows that emissions from Brunner Island contributed an amount greater than one percent of the 2008 ozone NAAQS at six monitoring sites in Connecticut based on emissions from the facility during the 2011 ozone season, and is therefore linked to Connecticut's air quality problems.

    Connecticut further alleges that Brunner Island has cost-effective and readily available control technologies that can reduce its NOX emissions. The petition first notes that Brunner Island currently has no NOX post-combustion controls installed at any of the units but that the facility was planning to add the capability to use natural gas fuel at all three of its units by the summer of 2017, and argues that a federally enforceable mechanism to ensure Brunner Island uses natural gas fuel would eliminate Brunner Island's significant contribution to ozone levels in Connecticut. The petition states that current federal and state rules will not require Brunner Island to operate on natural gas, install post-combustion controls, or otherwise limit NOX emissions beyond previously allowable permit levels. The petition summarizes four potential ways by which Brunner Island could reduce its NOX emissions: Replacing coal combustion with natural gas fuel, modifying its boiler furnace burners and combustion systems to operate at lower flame temperatures, installing selective noncatalytic reduction (SNCR) controls, and installing SCR controls.

    The petition further discusses the EPA's then-proposed CSAPR Update. Connecticut suggests that the then-proposed CSAPR Update could not be relied upon to control emissions from Brunner Island because: (1) It was not final at the time the petition was submitted and was therefore uncertain; and (2) the proposed rule would not require Brunner Island to reduce its emissions below the threshold of one percent of the NAAQS. The petition notes that the modeling to support the proposed rule shows four Connecticut monitors with nonattainment and maintenance problems after implementation of the proposed emission budgets. Finally, the petition suggests that the fact that EGUs may trade allowances within and between states could result in emission levels in excess of the state's budget, and thus suggest the rule will likely not affect Brunner Island's emissions. In particular, the petition suggests that this aspect of the CSAPR Update will not reduce emissions from Brunner Island on high electric demand days or days with the highest ozone levels.

    Based on the technical support provided in its petition, Connecticut requests that the EPA make a CAA section 126(b) finding and require that Brunner Island comply with emissions limitations and compliance schedules to eliminate its significant contribution to nonattainment and interference with maintenance in Connecticut.

    Section 126(b) of the Act requires the EPA to either make a finding or deny a petition within 60 days of receipt of the petition and after holding a public hearing. However, any action taken by the EPA under CAA section 126(b) is also subject to the procedural requirements of CAA section 307(d). See CAA section 307(d)(1)(N). One of these requirements is that the EPA conduct notice-and-comment rulemaking, including issuance of a notice of proposed action, a period for public comment, and a public hearing before making a final determination whether to make the requested finding. In light of the time required for notice-and-comment rulemaking, CAA section 307(d)(10) provides for a time extension, under certain circumstances, for rulemakings subject to the section 307(d) procedural requirements. In accordance with section 307(d)(10), the EPA determined that the 60-day period for action on Connecticut's petition would be insufficient for the EPA to complete the necessary technical review, develop an adequate proposal, and allow time for notice and comment, including an opportunity for public hearing. Therefore, on July 25, 2016, the EPA published a final rule extending the deadline for the EPA to take final action on Connecticut's CAA section 126(b) petition to January 25, 2017.9

    9 81 FR 48348 (July 25, 2016).

    On April 25, 2017, a coalition of public health, conservation, and environmental organizations submitted letters urging the EPA to immediately grant the pending CAA section 126(b) petitions in front of the agency, including Connecticut's, arguing that the petitions' proposed remedies would also provide critical air quality benefits to the communities surrounding the affected power plants in Indiana, Kentucky, Ohio, Pennsylvania, and West Virginia, as well as other downwind states, including New Jersey, New York, Maine, Massachusetts, and Rhode Island.10 On April 28, 2017, Talen Energy Corp., the owner and operator of Brunner Island, submitted a letter urging the EPA to deny Connecticut's CAA section 126(b) petition due to alleged deficiencies in the petition. The EPA acknowledges receipt of these letters, and has made them available in the docket for this action. However, the EPA is not in this action responding directly to these letters. Rather, the EPA encourages interested parties to review this proposal and then submit relevant comments during the public comment period.

    10 The EPA has received five CAA section 126(b) petitions from two other states (Delaware and Maryland) regarding the 2008 and 2015 ozone NAAQS, each claiming that one or more specific power plant EGUs in upwind states emit or would emit in violation of the good neighbor provision. However, the EPA notes that this rulemaking only addresses Connecticut's CAA section 126 petition regarding Brunner Island in Pennsylvania and the EPA is not requesting proposing action or requesting comment on the other five petitions.

    On May 16, 2017, the state of Connecticut filed suit in the U.S. District Court for the District of Connecticut alleging that the EPA failed to take timely action on Connecticut's CAA section 126(b) petition.11 On February 7, 2018, the court issued an order requiring the EPA to hold a public hearing on the petition within 30 days and to take final action within 60 days of the court's order. See Ruling on Motions for Summary Judgment and Motion Concerning Remedy, State of Connecticut v. EPA, No. 3:17-cv-00796 (D. Conn. February 7, 2018).

    11 Two citizen groups, Sierra Club and Connecticut Fund for the Environment, intervened in this case on behalf of the state of Connecticut.

    E. The Brunner Island Facility

    Brunner Island is a 1,411 megawatt facility with three tangentially-fired steam boiler EGUs, each equipped with low NOX burner technology with closed-coupled/separated over fire air (LNC3) combustion controls, located in York County in southeastern Pennsylvania.12 The units were constructed starting in 1961 through 1969. For over 50 years, all three units at Brunner Island have historically burned coal. Brunner Island recently installed a natural gas connection pipeline allowing natural gas to be combusted to serve Brunner Island's electric generators.13 Following installation of this pipeline, Brunner Island primarily combusted natural gas as fuel during the 2017 ozone season.14 Using primarily natural gas as fuel during the 2017 ozone season reduced Brunner Island's actual ozone season NOX emissions to 877 tons in 2017 from 3,765 tons in 2016 and reduced the facility's ozone season NOX emission rate to 0.090 pounds per millions of British thermal units (lbs/mmBtu) in 2017 from 0.370 lbs/mmBtu in 2016.15

    12 For tangentially-fired boiler types, LNC3 is state of the art (See sections 3.9.2 and 5.2.1 on pages 3-25 and 5-5 of the Integrated Planning Model (IPM) 5.13 documentation for details about combustion controls. The IPM documentation is available at https://www.epa.gov/airmarkets/power-sector-modeling-platform-v513.

    13 The Connecticut CAA section 126(b) petition and the April 28, 2017, letter from Talen Energy Corp. indicate that Brunner Island has taken necessary steps to construct a natural gas pipeline and enable the combustion of natural gas. On June 7, 2016, an article by S&P Global indicated that Talen Energy Corp. is in the process of converting the Brunner Island plant to co-fire with natural gas. These documents are available in the docket for this action.

    14 Hourly emission rates reported to the EPA and fuel usage reported to Environmental Impact Assessment demonstrate Brunner Island predominately used natural gas during the ozone season. The emissions data for 2017 are publicly available at https://www.epa.gov/ampd and the fuel usage data are available at https://www.eia.gov/electricity/data/eia923/.

    15 These data are publicly available at https://www.epa.gov/ampd. See Air Markets Program Data in the docket for this proposal.

    III. The EPA's Proposed Decision on Connecticut's CAA Section 126(b) Petition A. The EPA's Approach for Granting or Denying CAA Section 126(b) Petitions Regarding the 2008 8-Hour Ozone NAAQS

    As described in section II.B of this notice, as an initial matter in reviewing CAA section 126(b) petitions, the EPA evaluates the technical analysis in the petition to see if that analysis, standing alone, is sufficient to support a CAA section 126(b) finding. In this regard, the agency notes that certain elements of the analysis provided in the petition appear to be deficient and thereby the conclusions that the petition draws are not fully supported by Connecticut's technical assessment. For example, in the context of interstate pollution transport, in existing EPA analyses, the agency focuses its analysis on contributions to high ozone days at the downwind receptor. The analysis and metrics provided by the petitioner provide some information on the frequency and magnitude of ozone impacts. However, the information is unclear as to the modeled and/or measured ozone levels on those days.16 We also note that, the Connecticut petition relied on emissions data from 2011, which may not be representative of current and/or future NOX emissions and ozone levels in Connecticut, Pennsylvania, and the rest of the region.17

    16 Table two in the Sonoma Technologies, Inc. technical memorandum that supports Connecticut's petition indicates that the “maximum number of days any one monitor [in Connecticut] had a significant ozone contribution” was two.

    17 The Connecticut petition relies on air quality modeling that uses 2011 emissions data. As an example of how emissions have changed between 2011 and a recent historical year, the EPA notes that Pennsylvania's 2017 EGU NOX ozone season emissions were 79 percent below 2011 levels. Brunner Island is located in Pennsylvania, which as a facility reduced its ozone season NOX emissions by 88 percent in 2017 relative to 2011 levels (https://www.epa.gov/ampd).

    Nonetheless, the EPA's primary approach for reviewing the petition involves EPA's independent technical analyses to help evaluate the basis for a potential CAA section 126(b) finding. As described in sections II.A and II.C of this notice, ozone is a regional pollutant and previous EPA analyses and regulatory actions have evaluated the regional interstate ozone transport problem using a four-step regional analytic framework.

    The EPA applied this four-step framework in the promulgation of the CSAPR Update under CAA section 110(a)(2)(D)(i)(I) to at least partially address interstate transport with respect to the 2008 ozone NAAQS. The CSAPR Update was promulgated in 2016 and finalized EGU NOX ozone season emission budgets to address the good neighbor provision for the 2008 ozone NAAQS. While CAA section 126(b) differs from CAA section 110(a)(2)(D)(i)(I) in that CAA section 126(b) gives states the ability to petition the EPA regarding compliance with the good neighbor provision by a single source or group of sources, CAA section 126(b) specifically cross-references the substantive prohibitions of the good neighbor provision. To that end, CAA sections 110(a)(2)(D)(i)(I) and 126(b) both represent mechanisms to address the same functional prohibition of emissions activity from upwind states that will contribute significantly to nonattainment or interfere with maintenance of the NAAQS in a downwind state.

    Given the specific cross-reference in CAA section 126(b) to the substantive prohibition in CAA section 110(a)(2)(D)(i)(I), as discussed in section II.B of this notice in more detail, the EPA believes any prior findings made under the good neighbor provision are informative—if not determinative—for a CAA section 126(b) action, and thus the EPA's four-step approach under CAA section 110(a)(2)(D)(i)(I) is also appropriate for evaluating under CAA section 126(b) whether a source or group of sources will significantly contribute to nonattainment or interfere with maintenance of the 2008 8-hour ozone NAAQS in a petitioning state. Because the EPA interprets significant contribution to nonattainment and interference with maintenance to mean the same thing under both provisions, the EPA's decision whether to grant or deny a CAA section 126(b) petition regarding the 2008 8-hour ozone NAAQS depends on whether there is a downwind air quality problem in the petitioning state (i.e., step one of the four-step framework); whether the upwind state where the source subject to the petition is located is linked to the downwind air quality problem (i.e., step two); and, if such a linkage exists, whether there are additional feasible and cost-effective emission reductions achievable at the source(s) named in the CAA section 126(b) petition (i.e., step three).

    B. The EPA's Proposal To Deny Connecticut's CAA Section 126(b) Petition

    As described earlier in section II.C of this notice, the EPA has determined that a state may contribute significantly to nonattainment or interfere with maintenance of the 2008 ozone NAAQS where emissions from the state impact a downwind air quality problem (nonattainment or maintenance receptor) at a level exceeding a one percent contribution threshold, and where the sources in the state can implement emission reductions through highly cost-effective control measures. See EPA v. EME Homer City Generation, L.P., 134 S. Ct. at 1606-07.

    The EPA has already conducted such an analysis for the 2008 ozone NAAQS with respect to Pennsylvania's impact on receptors in Connecticut. As the petitioners note, the EPA determined that, based on 2017 modeling projections, Pennsylvania was linked to four air quality monitors in Connecticut expected to have nonattainment or maintenance concerns. However, contrary to the assertions made in Connecticut's petition, the one percent threshold used in step two in the CSAPR Update did not alone represent emissions that were considered to “contribute significantly” or “interfere with maintenance” of the NAAQS. The conclusion that a state's emissions met or exceeded this threshold only indicated that further analysis was appropriate to determine whether any of the upwind state's emissions met the statutory criteria of significantly contributing to nonattainment or interfering with maintenance. As discussed in more detail in section II.C, this further analysis in step three considers cost, technical feasibility and air quality factors to determine whether any emissions deemed to contribute to the downwind air quality factor must be controlled pursuant to the good neighbor provision. Thus, while the EPA's modeling conducted for the CSAPR Update did link emissions from Pennsylvania to nonattainment and maintenance receptors in Connecticut in 2017, this does not conclude the determination as to whether Brunner Island is operating in violation of the good neighbor provision with respect to the 2008 ozone NAAQS.

    Similarly, and for the same reasons, the impact of a single source on downwind air quality is not necessarily determinative of whether that source emits or would emit in violation of the good neighbor provision. Thus, the modeling summary provided by Connecticut regarding Brunner Island's potential impact on Connecticut monitors does not indicate whether in step three of the EPA's framework there are feasible and highly cost-effective emission reductions available at Brunner Island such that EPA could determine that this facility emits or would emit in violation of the good neighbor provision.

    With respect to the question of whether there are feasible and highly cost-effective NOX emission reductions available at Brunner Island, CAA section 126(b) indicates that a petitioner must demonstrate that a major source or group of stationary sources “emits or would emit” any air pollutant in violation of the prohibition of CAA section 110(a)(2)(D)(i)(I). Congress did not specify the intended meaning for these terms in either CAA section 126(b) itself or the legislative history for this provision. Therefore, in the context of this response to Connecticut's CAA section 126(b) petition regarding Brunner Island for the 2008 ozone NAAQS, the EPA reasonably and appropriately proposes to interpret these ambiguous terms in a particular way given the facility's existing operating conditions, as further described later in this section, and consistent with EPA's historical approach to evaluating interstate ozone pollution transport under the good neighbor provision. Specifically, the EPA is proposing to interpret the phrase “emits or would emit” in this context to mean, first, that a source may “emit” in violation of the good neighbor provision if, based on current emission levels, the upwind state contributes to downwind air quality problems and the source may be further controlled through implementation of highly cost-effective controls; and, second, that a source “would emit” in violation of the good neighbor provision if, based on reasonably anticipated future emission levels (accounting for existing conditions), the upwind state contributes to downwind air quality problems and the source could be further controlled through implementation of highly cost-effective controls. This interpretation is consistent with EPA's historic approach to addressing ozone transport under the good neighbor provision wherein EPA's ozone transport air quality and NOX reduction potential analyses have used future emission projections that were derived considering recent and projected emission levels. Accordingly, the EPA believes it is reasonable to interpret the CAA section 126(b) requirements for ozone transport in a consistent manner. Consistent with this interpretation, the EPA has therefore evaluated whether Brunner Island emits or would emit in violation of the good neighbor provision based on both current and future anticipated emission levels.

    As described in more detail later in this section, Brunner Island primarily burned natural gas with a low NOX emission rate in the 2017 ozone season and the EPA expects the facility to continue operating primarily by burning natural gas in future ozone seasons. As such, the EPA does not find at this time that there are additional feasible and highly cost-effective NOX emission reductions available at Brunner Island. The EPA is therefore proposing to determine, based on this context, that Brunner Island does not and would not “emit” in violation of the good neighbor provision with respect to the 2008 ozone NAAQS.

    Connecticut's CAA section 126(b) petition first proposes that the operation of natural gas is an available cost-effective emission reduction measure that could be implemented at Brunner Island. As noted previously, Brunner Island completed construction of a natural gas pipeline connection prior to the beginning of the 2017 ozone season (i.e., by May 1, 2017). Brunner Island operated primarily using natural gas as fuel for the 2017 ozone season. As a result, Brunner Island's actual ozone season NOX emissions declined from 3,765 tons in 2016 to 877 tons in 2017, and the facility's ozone season NOX emission rate declined from 0.370 lbs/mmBtu in 2016 to 0.090 lbs/mmBtu in 2017. Thus, Brunner Island has already implemented the emission reductions consistent with what Connecticut asserted would qualify as a cost-effective strategy for reducing NOX emissions. Connecticut's section 126(b) petition does not demonstrate that, at this current level of emissions, Brunner Island “emits” in violation of the good neighbor provision.

    The EPA also believes that Brunner Island will likely continue to primarily use natural gas as fuel during future ozone seasons for several reasons. First, compliance with the CSAPR Update provides an economic incentive to cost-effectively reduce NOX emissions. Specifically, Brunner Island's participation in the CSAPR NOX ozone season Group 2 allowance trading program provides an economic incentive to produce electricity in ways that lower ozone-season NOX, such as by burning natural gas relative to burning coal at this particular power plant. Under the CSAPR Update, each ton of NOX emitted by a covered EGU has an economic value—a direct cost in the case that a power plant must purchase an allowance to cover that ton of emissions for CSAPR Update compliance or an opportunity cost in the case that a power plant must use an allowance that is in its account for compliance and thereby foregoes the opportunity to sell that allowance on the market. The EPA notes that Brunner Island's 2017 emissions would have been approximately 2,714 tons more than its actual 2017 emissions if it had operated as a coal-fired generator, as it did in 2016.18 This reduction in NOX emissions that is attributable to primarily burning natural gas has an economic value in the CSAPR allowance trading market.

    18 This estimated emissions difference was calculated as the difference between 2017 reported NOX emissions and a counterfactual 2017 NOX emissions estimate using 2017 operations (i.e., heat input), multiplied by the 2016 NOX emission rate reflecting coal-fired generation.

    Second, there are continuing fuel-market based economic incentives suggesting that Brunner Island will primarily burn natural gas during the ozone season. Brunner Island elected to add the capability to primarily utilize natural gas by way of a large capital investment in a new natural gas pipeline capacity connection. Brunner Island's operators would have planned for and constructed this project during the recent period of relatively low natural gas prices. In the years preceding the completion of this natural gas pipeline connection project, average annual natural gas prices ranged from $2.52/mmBtu to $4.37/mmBtu (i.e., between 2009 and 2016).19 The capital expenditure to construct a natural gas pipeline connection suggests that natural gas prices within this range make it economic (i.e., cheaper) for Brunner Island to burn natural gas to generate electricity relative to burning coal. As such, future natural gas prices in this same range suggest that Brunner Island will continue to primarily burn natural gas during future ozone seasons. The EPA and other independent analysts expect future natural gas prices to remain low and within this 2009 to 2016 range due both to supply and distribution pipeline build-out. For example, the Energy Information Administration's (EIA) 2018 Annual Energy Outlook (AEO) natural gas price projections for Henry Hub spot price range from $3.06/mmBtu in 2018 to $3.83/mmBtu in 2023.20 Moreover, the AEO short-term energy outlook and New York Mercantile Exchange futures further support the estimates of a continued low-cost natural gas supply.21 These independent analyses of fuel price data and projections lead to the EPA's expectation that fuel-market economics will continue to support Brunner Island's primarily burning natural gas during future ozone seasons through at least 2023. Taken together with projected continued broader downward trends in NOX emissions resulting in improved air quality in Connecticut, the EPA expects that Connecticut's ozone nonattainment and maintenance problems will be resolved in the future and that Brunner Island will likely continue to primarily burn natural gas during the ozone season until that time.

    19 In the 2018 reference case Annual Energy Outlook (AEO) released February 6, 2018, created by the U.S. Energy Information Administration (EIA), natural gas prices for the power sector for 2018 through 2023. Available at https://www.eia.gov/outlooks/aeo/data/browser/#/?id=13-AEO2018&cases=ref2018&sourcekey=0.

    20 Projected delivered natural gas prices for the power sector in the Middle Atlantic region, where Brunner Island is located, ranged between $3.56 in 2018 and $3.99/mmBtu in 2023. The projected delivered coal prices for the Middle Atlantic remain relatively constant, ranging from $2.51 to $2.56/mmBtu. https://www.eia.gov/outlooks/aeo/data/browser/#/?id=3-AEO2018&region=1-2&cases=ref2018&start=2016&end=2023&f=A&linechart=ref2018-d121317a.3-3-AEO2018.1-2&map=ref2018-d121317a.4-3-AEO2018.1-2&sourcekey=0 and http://tonto.eia.gov/dnav/ng/hist/rngwhhda.htm.

    21 AEO short-term energy outlook available at https://www.eia.gov/outlooks/steo/report/natgas.php.

    The context in which Brunner Island installed natural gas-firing capability and burned natural gas is consistent with observed recent trends in natural gas utilization within the power sector, suggesting that Brunner Island's economic situation in which it primarily burns gas as fuel during the ozone season is not unique or limited. Comparing total heat input from 2014 with 2017 for all units that utilize natural gas and report to the EPA's Clean Air Markets Division, historical data showed an increased use of natural gas of 14 percent.22 This overall increase results from both an increase in capacity from the construction of additional units and an increased gas-fired utilization capacity factor. The available heat input capacity increased six percent while average capacity factor based on heat input increased by eight percent (23 percent to 25 percent).

    22 From 8.4 billion mmBtu to 9.6 billion mmBtu. See EPA's Clean Air Markets Division data at https://ampd.epa.gov/ampd/.

    Accordingly, based on this information demonstrating that Brunner Island can be expected to continue to primarily operate using natural gas fuel in the future, the EPA cannot conclude that the facility “would emit” in violation of the good neighbor provision with respect to the 2008 ozone NAAQS. The EPA notes that Connecticut's petition relied on emission data from 2011 to attempt to demonstrate that Brunner Island is significantly contributing to nonattainment or interfering with maintenance. In light of recent changes in Brunner Island's operations, the EPA does not believe this information provides a current, reasonable estimate of how much NOX pollution Brunner Island emits or would emit currently or in the future.23

    23 As noted above, Pennsylvania's 2017 EGU NOX ozone season emissions were 79 percent below 2011 levels. Brunner Island is located in Pennsylvania, which as a facility reduced its ozone season NOX emissions by 88 percent in 2017 relative to 2011 levels. Data regarding Brunner Island emissions available at https://www.epa.gov/ampd.

    We do not agree with the petition to the extent that it asserts that the ability to buy and bank allowances in the CSAPR Update's ozone season NOX allowance trading program will incentivize Brunner Island to increase its emissions. Connecticut fails to support its contention and thus does not meet the demonstration burden imposed on CAA section 126(b) petition. Moreover, Brunner Island's 2017 emission levels demonstrate that, contrary to Connecticut's assertions, Brunner Island reduced emissions while operating in the context of the CSAPR Update allowance trading program. This is also true for EGUs in Pennsylvania more broadly, which had collective emissions of 13,646 tons, well below the Pennsylvania budget of 17,952 tons. The petition also fails to support its contention that Brunner Island's participation in the allowance trading program will result in increased emissions on days with either high electricity demand or days with the highest ozone levels.

    Finally, to the extent that Connecticut identifies other control strategies that could potentially be implemented at Brunner Island in order to reduce NOX emissions, including modifications to combustion controls or implementation of post-combustion controls like SCRs and SNCRs, the petition does not include any information or analysis regarding the costs of such controls nor does it demonstrate that such controls are highly cost effective considering potential downwind air quality impacts. As noted previously, in the CSAPR Update, the EPA quantified upwind states' obligations under the good neighbor provision based on emission reductions available at a marginal cost of $1,400/ton of NOX reduced. EPA's analysis showed that additional NOX reductions at EGUs, including installation of new SCRs and SNCRs at EGUs that lacked post-combustion controls, would be more expensive.24 The cost of such new post-combustion controls at Brunner Island would likely be even more expensive considering current and anticipated emissions rates.

    24See EGU NOX Mitigation Strategies Final Rule Technical Support Document available at https://www.regulations.gov, Docket ID No. EPA-HQ-OAR-2015-0500-0554.

    Under the EPA's approach to quantifying those amounts of emissions that significantly contribute to nonattainment or interfere with maintenance, the dollar-per-ton cost of reducing emissions is balanced against two air quality factors: The amount of NOX emission reductions available using a particular control strategy and the downwind reductions in ozone at identified receptors that would result from the emission reductions. Connecticut has not attempted to evaluate what reductions in ozone would accrue from these additional control strategies and thus has not demonstrated that the additional costs associated with these controls would be justified by the downwind reductions in ozone. Indeed, the petition includes no analysis of how downwind air quality would be impacted by the emission reductions it contends are necessary under the good neighbor provision. This element is not only key to EPA's interpretation of the good neighbor provision as it applies step three to ozone pollution transport, but necessary to ensure that upwind emissions are not reduced by more than necessary to improve downwind air quality, consistent with the Supreme Court's holding in EPA v. EME Homer City Generation, L.P., 134 S. Ct. at 1604 n.18, 1608-09. Recent EPA analyses that projects emission levels to a future year indicates that no air quality monitors in Connecticut are projected to have nonattainment or maintenance problems with respect to the 2008 ozone NAAQS by 2023.25 While this modeling is not necessarily determinative of whether Brunner Island emits or would emit in violation of the good neighbor provision before 2023, it does suggest that, by that date, it may no longer be necessary to further reduce emissions from any state to ensure attainment of the 2008 ozone NAAQS in Connecticut.

    25See Supplemental Information on the Interstate Transport State Implementation Plan Submissions for the 2008 Ozone National Ambient Air Quality Standards under Clean Air Act Section 110(a)(2)(D)(i)(I) (October 2017), available in the docket for this proposed action. The EPA is not making any final determination regarding future downwind air quality in this action, and is therefore not requesting comment on the air quality modeling presented in the October 2017 memorandum.

    Based on the information discussed in this notice, the EPA proposes to deny the petition because Connecticut has not met its burden to demonstrate that Brunner Island emits or would emit in violation of the good neighbor provision with respect to the 2008 ozone NAAQS.26 The EPA also proposes to find, based on its own analysis, that there are no additional cost-effective measures available at the source, and thus Brunner Island does not emit nor would it emit in violation of the good neighbor provision with respect to the 2008 ozone NAAQS. These proposed determinations are based on the fact that Brunner Island combusted primarily natural gas in the 2017 ozone season, resulting in a low NOX emission rate for this facility, as well as the expectation that future operation will be consistent with 2017 operations. The EPA requests comment on its proposed denial of Connecticut's section 126(b) petition, including the bases for the decision described herein.

    26 As previously discussed, the petition correctly identifies that Pennsylvania is linked to downwind air quality problems in Connecticut, and has been included in the CSAPR Update with respect to its downwind impacts on Connecticut's attainment of the 2008 ozone NAAQS. While this action proposes to determine that no further controls are necessary to ensure that Brunner Island does not and would not “emit” in violation of the good neighbor provision for the 2008 ozone NAAQS with respect to Connecticut, this proposal does not make any broader determination as to the good neighbor obligation for Pennsylvania.

    IV. Statutory Authority

    42 U.S.C. 7410, 7426, 7601.

    Dated: February 15, 2018. E. Scott Pruitt, Administrator.
    [FR Doc. 2018-03679 Filed 2-21-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY [EPA-HQ-OW-2014-0350; FRL-9973-50-OW] Proposed Information Collection Request; Comment Request; National Fish Program (Formerly Referred to as the National Listing of Fish Advisories) (Renewal) AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Notice.

    SUMMARY:

    The Environmental Protection Agency is planning to submit an information collection request (ICR), National Fish Program (formerly referred to as the National Listing of Fish Advisories), (EPA ICR Number 1959.06, OMB Control Number 2040-0226) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act. Before doing so, EPA is soliciting public comments on specific aspects of the proposed information collection as described below. This is a proposed extension of the ICR, which is currently approved through July 31, 2018. An Agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.

    DATES:

    Comments must be submitted on or before April 23, 2018.

    ADDRESSES:

    Submit your comments, referencing Docket ID No. EPA-HQ-OW-2014-0350, online using www.regulations.gov (our preferred method), by email to [email protected], or by mail to: EPA Docket Center, Environmental Protection Agency, Mail Code 28221T, 1200 Pennsylvania Ave. NW, Washington, DC 20460.

    EPA's policy is that all comments received will be included in the public docket without change including any personal information provided, unless the comment includes profanity, threats, information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.

    FOR FURTHER INFORMATION CONTACT:

    CDR Samantha Fontenelle, Office of Science and Technology, Standards and Health Protection Division, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone number: (202) 566-2083; fax number: (202) 566-0409; email address: [email protected]

    SUPPLEMENTARY INFORMATION:

    Supporting documents which explain in detail the information that the EPA will be collecting are available in the public docket for this ICR. The docket can be viewed online at www.regulations.gov or in person at the EPA Docket Center, WJC West, Room 3334, 1301 Constitution Ave. NW, Washington, DC. The telephone number for the Docket Center is 202-566-1744. For additional information about EPA's public docket, visit http://www.epa.gov/dockets.

    Pursuant to section 3506(c)(2)(A) of the PRA, EPA is soliciting comments and information to enable it to: (i) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility; (ii) evaluate the accuracy of the Agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (iii) enhance the quality, utility, and clarity of the information to be collected; and (iv) minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses. EPA will consider the comments received and amend the ICR as appropriate. The final ICR package will then be submitted to OMB for review and approval. At that time, EPA will issue another Federal Register notice to announce the submission of the ICR to OMB and the opportunity to submit additional comments to OMB.

    Abstract: There is a continuing need to maintain the overall quality and availability of public information concerning fish advisories. Primary responsibility for these activities lies with state and tribes. In 1993, EPA began compiling information on fish advisories provided by the states in its biannual 305(b) Water Quality Inventory Reports. In 1994, EPA's Office of Water began conducting a voluntary annual Fish Program Survey to obtain the most up-to-date information on fish advisories. This information is collected under the authority of section 104 of the Clean Water Act, which provides for the collection of information to be used to protect human health and the environment. The advisory information collected identifies the waterbody under advisory, the fish or shellfish species and size ranges included in the advisory, the chemical contaminants and residue levels causing the advisory to be issued, the waterbody type (river, lake, estuary, coastal waters), and the target populations to whom the advisory is directed. The results of the survey are shared with states, territories, tribes, other federal agencies, and the public through and online database. The responses to the survey are voluntary and the information requested is part of the state public record associated with the advisories. No confidential business information is requested.

    Form Numbers: None.

    Respondents/Affected Entities: Entities potentially affected by this action are Administrators of Public Health and Environmental Quality Programs in state and tribal governments (NAICS 92312/SIC 9431 and NAICS 92411/SIC 9511).

    Respondent's Obligation To Respond: Voluntary (Clean Water Act, Section 104).

    Estimated Number of Respondents: Up to 100.

    Frequency of Response: Annual.

    Total Estimated Burden: 2,468 labor hours (per year). Burden is defined at 5 CFR 1320.03(b).

    Total Estimated Cost: $108,950.72 (per year), includes no capital or startup costs and annualized operation & maintenance costs.

    Changes in Estimates: There is a 31 percent increase to the respondent burden from the currently approved ICR. The increase is due to revised hourly burden estimates based on input from three states; and the addition to two new activities to increase communication, engagement, information sharing and support between EPA and the states, territories and tribes.

    Dated: January 23, 2018. Deborah G. Nagle, Acting Director, Office of Science and Technology.
    [FR Doc. 2018-03676 Filed 2-21-18; 8:45 am] BILLING CODE 6560-50-P
    EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Agency Information Collection Activities: Notice of Submission for OMB Review; Comment Request AGENCY:

    Equal Employment Opportunity Commission.

    ACTION:

    Notice of information collection—Uniform Guidelines on Employee Selection Procedures—Extension Without Change.

    SUMMARY:

    In accordance with the Paperwork Reduction Act of 1995, the Equal Employment Opportunity Commission gives notice of its intent to submit to the Office of Management and Budget (OMB) a request for renewal of the information collection described below.

    DATES:

    Written comments on this notice must be submitted on or before April 23, 2018.

    ADDRESSES:

    Comments should be sent to Bernadette Wilson, Executive Officer, Executive Secretariat, Equal Employment Opportunity Commission, 131 M Street NE, Washington, DC 20507. As a convenience to commenters, the Executive Secretariat will accept comments totaling six or fewer pages by facsimile (“FAX”) machine. This limitation is necessary to assure access to the equipment. The telephone number of the fax receiver is (202) 663-4114. (This is not a toll-free number). Receipt of FAX transmittals will not be acknowledged, except that the sender may request confirmation of receipt by calling the Executive Secretariat staff at (202) 663-4070 (voice) or (202) 663-4074 (TTD). (These are not toll-free telephone numbers.) Instead of sending written comments to EEOC, you may submit comments and attachments electronically at http://www.regulations.gov, which is the Federal eRulemaking Portal. Follow the instructions online for submitting comments. All comments received through this portal will be posted without change, including any personal information you provide, except as noted below. The EEOC reserves the right to refrain from posting comments, including those that contain obscene, indecent, or profane language; that contain threats or defamatory statements; that contain hate speech directed at race, color, sex, national origin, age, religion, disability, or genetic information; or that promote or endorse services or products. All comments received, including any personal information provided, also will be available for public inspection during normal business hours by appointment only at the EEOC Headquarters Library, 131 M Street NE, Washington, DC 20507. Upon request, individuals who require assistance viewing comments will be provided appropriate aids such as readers or print magnifiers. To schedule an appointment, contact EEOC Library staff at (202) 663-4630 (voice) or (202) 663-4641 (TTY). (These are not toll-free numbers.)

    FOR FURTHER INFORMATION CONTACT:

    Kathleen Oram, Acting Assistant Legal Counsel, at (202) 663-4681 (voice) or (202) 663-7026 (TDD).

    SUPPLEMENTARY INFORMATION: Introduction

    The Equal Employment Opportunity Commission (EEOC or Commission) gives notice of its intent to submit the recordkeeping requirements contained in the Uniform Guidelines on Employee Selection Procedures (UGESP or Uniform Guidelines) 1 to the Office of Management and Budget (OMB) for a three-year extension without change under the Paperwork Reduction Act of 1995 (PRA).

    1 29 CFR, part 1607, 41 CFR part 60-3, 28 CFR part 50, 5 CFR part 300.

    Request for Comments

    Pursuant to the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35, and OMB regulation 5 CFR 1320.8(d)(1), the EEOC invites public comments that will enable the agency to:

    (1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;

    (2) Evaluate the accuracy of the agency's estimate of the burden of the collection of information, including the validity of the methodology and assumptions used;

    (3) Enhance the quality, utility, and clarity of the information to be collected; and

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

    Overview of Current Information Collection

    Collection Title: Recordkeeping Requirements of the Uniform Guidelines on Employee Selection Procedures, 29 CFR part 1607, 41 CFR part 60-3, 28 CFR part 50, 5 CFR part 300.

    OMB Number: 3046-0017.

    Type of Respondent: Businesses or other institutions; Federal Government; State or local governments and farms.

    North American Industry Classification System (NAICS) Code: Multiple.

    Standard Industrial Classification Code (SIC): Multiple.

    Description of Affected Public: Any employer, Government contractor, labor organization, or employment agency covered by the Federal equal employment opportunity laws.

    Respondents: 961,709.

    Responses: 2 961,709.

    2 Source: U.S. Small Business Administration: Statistics of U.S. Business, Release Date 1/2017. (https://www.sba.gov/advocacy/firm-size-data). Select U.S. Static Data, U.S. Data.

    Recordkeeping Hours: 7,825,132 per year.

    Number of Forms: None.

    Form Number: None.

    Frequency of Report: None.

    Abstract: The Uniform Guidelines provide fundamental guidance for all Title VII-covered employers about the use of employment selection procedures. The records addressed by UGESP are used by respondents to ensure that they are complying with Title VII and Executive Order 11246; by the Federal agencies that enforce Title VII and Executive Order 11246 to investigate, conciliate, and litigate charges of employment discrimination; and by complainants to establish violations of Federal equal employment opportunity laws. While there is no data available to quantify these benefits, the collection of accurate applicant flow data enhances each employer's ability to address any deficiencies in recruitment and selection processes, including detecting barriers to equal employment opportunity.

    Burden Statement: There are no reporting requirements associated with UGESP. The burden being estimated is the cost of collecting and storing a job applicant's gender, race, and ethnicity data.

    The only paperwork burden derives from this recordkeeping. Only employers covered under Title VII and Executive Order 11246 are subject to UGESP. For the purposes of burden calculation, employers with 15 or more employees are counted. The number of such employers is estimated at 961,709 which combines estimates from private employment,2 the public sector, 3 colleges and universities,4 and referral unions.5

    3 Source of original data: 2012 Census of Governments: Employment. Individual Government Data File (https://www2.census.gov/govs/apes/12ind_all_tabs.xls), Local Downloadable Data zip file 12ind_all_tabs.xls. The number of government entities was adjusted to only include those with 15 or more employees.

    4 Source: U.S. Department of Education, National Center for Education Statistics, IPEDS, Fall 2015. Number and percentage distribution of Title IV institutions, by control of institution, level of institution, and region: United States and other U.S. jurisdictions, academic year 2015-1 (http://nces.ed.gov/pubsearch/pubsinfo.asp?pubid=2016122rev).

    5 EEO-3 Reports filed by referral unions in 2016 with EEOC.

    This burden assessment is based on an estimate of the number of job applications submitted to all Title VII-covered employers in one year, including paper-based and electronic applications. The total number of job applications submitted every year to covered employers is estimated to be 1,878,031,768, based on a National Organizations Survey 6 average of approximately 35 applications 7 for every hire and a Bureau of Labor Statistics data estimate of 62,719,000 annual hires.8 This figure also includes 146,506 applicants for union membership reported on the EEO-3 form for 2016.

    6 The National Organizations Survey is a survey of business organizations across the United States in which the unit of analysis is the actual workplace (http://www.icpsr.umich.edu/icpsrweb/ICPSR/studies/04074).

    7 The number of applications provided by NOS is 35.225 and therefore calculations will not result in the same total amount due to rounding.

    8 Bureau of Labor Statistics Job Openings and Labor Turnover Survey, 2016 annual level data (Not seasonally adjusted), (http://www.bls.gov/jlt/data.htm) is the source of the original data. The BLS figure (62,719,000) has been adjusted to only include hires by firms with 15 or more employees.

    The employer burden associated with collecting and storing applicant demographic data is based on the following assumptions: Applicants would need to be asked to provide three pieces of information—sex, race/ethnicity, and an identification number (a total of approximately 13 keystrokes); the employer would need to transfer information received to a database either manually or electronically; and the employer would need to store the 13 characters of information for each applicant. Recordkeeping costs and burden are assumed to be the time cost associated with entering 13 keystrokes.

    Assuming that the required recordkeeping takes 30 seconds per record, and assuming a total of 1,878,031,768 paper and electronic applications per year (as calculated above), the total UGESP burden hours for all employers would be 7,825,132. Based on a wage rate of $15.21 per hour for the individuals entering the data, the collection and storage of applicant demographic data would come to approximately $119,020,258 per year for all Title VII-covered employers. We expect that the foregoing assumptions are over-inclusive, because many employers have electronic job application processes that should be able to capture applicant flow data automatically.

    However, the average burden per employer is relatively small. As stated above, we estimate that UGESP applies to 961,709 employers. Therefore, the cost per covered employer is less than $124 each ($119,020,258 divided by 961,709 is equal to $123.76). Additionally, UGESP allows for simplified recordkeeping for employers with more than 15 but less than 100 employees.9

    9See 29 CFR 1607.15A(1): Simplified recordkeeping for users with less than 100 employees. In order to minimize recordkeeping burdens on employers who employ one hundred (100) or fewer employees, and other users not required to file EEO-1, et seq., reports, such users may satisfy the requirements of this section 15 if they maintain and have available records showing, for each year: (a) The number of persons hired, promoted, and terminated for each job, by sex, and where appropriate by race and national origin; (b) the number of applicants for hire and promotion by sex and where appropriate by race and national origin; and (c) the selection procedures utilized (either standardized or not standardized).

    For the Commission.

    Dated: February 15, 2018. Victoria A. Lipnic, Acting Chair.
    [FR Doc. 2018-03643 Filed 2-21-18; 8:45 am] BILLING CODE 6570-01-P
    FEDERAL COMMUNICATIONS COMMISSION Privacy Act of 1974; System of Records. AGENCY:

    Federal Communications Commission.

    ACTION:

    Notice of a modified system of records.

    SUMMARY:

    The Federal Communications Commission (FCC or Commission or Agency) has modified an existing system of records, FCC/OGC-3, Adjudication of Internal Complaints against Employees, subject to the Privacy Act of 1974, as amended. This action is necessary to meet the requirements of the Privacy Act to publish in the Federal Register notice of the existence and character of records maintained by the Agency. The Office of the General Counsel (OGC) uses the personally identifiable information (PII) in this system for purposes that include, but are not limited to settlement negotiations with opposing parties and to prepare for litigation before an administrative body or a court of appropriate jurisdiction.

    DATES:

    This action will become effective on February 22, 2018. The routine uses in this action will become effective on March 26, 2018 unless comments are received that require a contrary determination.

    ADDRESSES:

    Send comments to Leslie F. Smith, Privacy Manager, Information Technology (IT), Room 1-C216, Federal Communications Commission, 445 12th Street SW, Washington, DC 20554, or to [email protected].

    FOR FURTHER INFORMATION CONTACT:

    Leslie F. Smith, (202) 418-0217, or [email protected] (and to obtain a copy of the Narrative Statement and the Supplementary Document, which includes details of the proposed alterations to this system of records).

    SUPPLEMENTARY INFORMATION:

    This notice serves to update and amend FCC/OGC-3, Adjudication of Internal Complaints against Employees, as a result of an increased use of electronic information technology. The substantive changes and modifications to the previously published version of the FCC/OGC-3 system of records include:

    1. Updating the language in the Security Classification to follow with OMB guidance.

    2. Minor changes to the Purposes, Categories of Individuals, and Categories of Records to be consistent the language and phrasing now used in the FCC's SORNs.

    3. Deletion of two routine uses: (2) Public Access since releases under the FOIA are covered by 5 U.S.C. 552a(b)(2), so a separate routine use for them is not needed; and (6) Employment, Clearances, Licensing, Contract, Grant, or other Benefits Decisions by other than the agency, and its replacement with a new routine use: (5) For Certain Disclosures to Other Agencies to make information available to another Federal agency.

    4. Updating language and/or renumbering seven routine uses: (1) Adjudication and Litigation; (2) Law Enforcement and Investigation; (3) Congressional Inquiries; (4) Government-wide Program Management and Oversight; (6) Employment, Clearances, Licensing, Contract, Grant, or other Benefits Decisions by the FCC; and (7) Labor Relations.

    5. Adding three other new routine uses: (8) Breach Notification to address the Commission's real or suspected data breach situations; (9) Assistance to Federal Agencies and Entities for assistance with other Federal agencies' data breach situations; and (10) For Non-Federal Personnel to allow contractors performing or working on a contract for the Federal Government access to information. Routine Uses (8) and (9) are required by OMB Memorandum m-17-12.

    The system of records is also updated to reflect various administrative changes related to the system managers and system addresses; policy and practices for storage, retrieval, and retention and disposal of the records; administrative, technical, and physical safeguards; and updated notification, records access, and contesting records procedures.

    System Name and Number

    FCC/OGC-3, Adjudication of Internal Complaints against Employees.

    SECURITY CLASSIFICATION:

    No information in this system is classified.

    SYSTEM LOCATION:

    Office of General Counsel (OGC), Federal Communications Commission (FCC), 445 12th Street SW, Washington, DC 20554.

    SYSTEM MANAGER(S) AND ADDRESS:

    Office of General Counsel (OGC), Federal Communications Commission (FCC), 445 12th Street SW, Washington, DC 20554.

    AUTHORITY FOR MAINTENANCE OF THE SYSTEM:

    5 U.S.C. 301.

    PURPOSE(S) OF THE SYSTEM:

    Staff attorneys in the Office of General Counsel (OGC) use these records for purposes including, but not limited to settlement negotiations with opposing parties and to prepare for litigation before an administrative body or a court of appropriate jurisdiction.

    CATEGORIES OF INDIVIDUALS COVERED BY THE SYSTEM:

    Any FCC employee who files or is the subject of a complaint investigation involving internal personnel actions or activities, which include but are not limited to discrimination, grievance, political activity, separation, or adverse action.

    CATEGORIES OF RECORDS IN THE SYSTEM:

    Information in this system of records involves internal personnel disputes that have reached the litigation stage, and may include but are not limited to correspondence, memoranda, transcripts of hearings, briefs, pleadings, investigative reports, and decisions of hearing examiners and Commissioners.

    RECORD SOURCE CATEGORIES:

    The sources for the information in this system of records include but are not limited to:

    (a) Individuals filing such claims; the individuals who are the subjects of such claims;

    (b) Attorneys or representatives of the claimants and the subjects of the claims;

    (c) Communication between FCC organizational units; and

    (d) Investigative materials and related documentation and decisions involved in but not limited to appeals, amendments, and litigation concerning such claims.

    ROUTINE USES OF RECORDS MAINTAINED IN THE SYSTEM, INCLUDING CATEGORIES OF USERS AND THE PURPOSES OF SUCH USES:

    In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, all or a portion of the records or information contained in this system may be disclosed to authorized entities, as is determined to be relevant and necessary, outside the FCC as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows. In each of these cases, the FCC will determine whether disclosure of the records is compatible with the purpose(s) for which the records were collected:

    1. Adjudication and Litigation—To disclose information to the Department of Justice (DOJ), or other administrative body before which the FCC is authorized to appear, when: (a) The FCC or any component thereof; (b) any employee of the FCC in his or her official capacity; (c) any employee of the FCC in his or her individual capacity where DOJ or the FCC has agreed to represent the employee; or (d) the United States is a party to litigation or has an interest in such litigation, and the use of such records by DOJ or the FCC is deemed by the FCC to be relevant and necessary to the litigation.

    2. Law Enforcement and Investigation—To disclose pertinent information to the appropriate Federal, State, or local agency responsible for investigating, prosecuting, enforcing, or implementing a statute, rule, regulation, or order, where the FCC becomes aware of an indication of a violation or potential violation of civil or criminal law or regulation.

    3. Congressional Inquiries—To provide information to a congressional office from the record of an individual in response to an inquiry from that congressional office made at the request of that individual.

    4. Government-wide Program Management and Oversight—To disclose information to the National Archives and Records Administration (NARA) for use in its records management inspections; to the Government Accountability Office (GAO) for oversight purposes; to the Department of Justice (DOJ) to obtain that department's advice regarding disclosure obligations under the Freedom of Information Act (FOIA); or to the Office of Management and Budget (OMB) to obtain that office's advice regarding obligations under the Privacy Act.

    5. For Certain Disclosures to Other Federal Agencies—To disclose information to a Federal agency, in response to its request in connection with the hiring or retention of an employee, the issuance of a security clearance, the conducting of a suitability or security investigation of an individual, the classifying of jobs, the letting of a contract, or the issuance of a license, grant, or other benefit by the requesting agency, to the extent that the information is relevant and necessary to the requesting agency's decision on the matter.

    6. Employment, Clearances, Licensing, Contract, Grant, or other Benefits Decisions by the Agency—To disclose information to a Federal, State, local, foreign, tribal, or other public agency or authority maintaining civil, criminal, or other relevant enforcement records, or other pertinent records, or to another public authority or professional organization, if necessary to obtain information relevant to an investigation concerning the hiring or retention of an employee or other personnel action, the issuance or retention of a security clearance, the classifying of jobs, the letting of a contract, or the issuance or retention of a license, grant, or other benefit by the Commission, to the extent that the information is relevant and necessary to the requesting agency's decisions on the matter.

    7. Labor Relations—To disclose information to officials of labor organizations recognized under 5 U.S.C. Chapter 71 upon receipt of a formal request and in accord with the conditions of 5 U.S.C. 7114 when relevant and necessary to their duties of exclusive representation concerning personnel policies, practices, and matters affecting working conditions.

    8. Breach Notification—To appropriate agencies, entities, and persons when: (a) The Commission suspects or has confirmed that there has been a breach of the system of records; (b) the Commission has determined that as a result of the suspected or confirmed breach there is a risk of harm to individuals, the Commission (including its information systems, programs, and operations), the Federal Government, or national security; and (c) the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with the Commission's efforts to respond to the suspected or confirmed breach or to prevent, minimize, or remedy such harm.

    9. Assistance to Federal Agencies and Entities—To another Federal agency or Federal entity, when the Commission determines that information from this system is reasonably necessary to assist the recipient agency or entity in: (a) Responding to a suspected or confirmed breach or (b) preventing, minimizing, or remedying the risk of harm to individuals, the recipient agency or entity (including its information systems, program, and operations), the Federal Government, or national security, resulting from a suspected or confirmed breach.

    10. For Non-Federal Personnel—To disclose information to contractors performing or working on a contract for the Federal Government.

    REPORTING TO A CONSUMER REPORTING AGENCY:

    In addition to the routine uses cited above, the Commission may share information from this system of records with a consumer reporting agency regarding an individual who has not paid a valid and overdue debt owed to the Commission, following the procedures set out in the Debt Collection Act, 31 U.S.C. 3711(e).

    POLICIES AND PRACTICES FOR STORING OF RECORDS:

    Information in this system includes both paper and electronic records. The paper records, documents, and files are maintained in file cabinets that are located in OGC and in the bureaus and offices (B/Os) of the FCC staff who provide the responses to such claims. The electronic records, files, and data are stored in the FCC's computer network.

    POLICIES AND PRACTICES FOR RETRIEVAL OF RECORDS:

    Records are retrieved by the name of the subject individual in the investigation.

    POLICIES AND PRACTICES FOR RETENTION AND DISPOSAL OF RECORDS:

    Records are retained and disposed of in accordance with the agency records control schedules NC1-173-84-05, Item 3 and N1-173-91-001, Item 6, both of which have been approved by the National Archives and Records Administration (NARA).

    ADMINISTRATIVE, TECHNICAL, AND PHYSICAL SAFEGUARDS:

    The file cabinets containing paper records in this system are maintained in file cabinets in “non-public” rooms in the OGC and B/O suites. The OGC and B/O file cabinets are locked at the end of the business day. Access to these office suites is through card-coded main doors. Only authorized OGC and B/O supervisors and staff who are responsible for responding to these claims, have access to these paper records.

    The electronic records, files, and data are housed in the FCC's computer network. Access to the electronic files is restricted to OGC and B/O staff who are responsible for responding to such claims, and to the IT staff and contractors who maintain the FCC's computer network. Other FCC employees and contractors may be granted access on a “need-to-know” basis. The FCC's computer network databases are protected by the FCC's IT privacy safeguards, a comprehensive and dynamic set of IT safety and security protocols and features that are designed to meet all Federal IT privacy standards, including those required by the National Institute of Standards and Technology (NIST) and the Federal Information Security Modernization Act of 2014 (FISMA).

    NOTIFICATION PROCESS:

    Individuals wishing to determine whether this system of records contains information about them may do so by writing to Leslie F. Smith, Privacy Manager, Information Technology, Federal Communications Commission, 445 12th Street SW, Washington, DC 20554, or email [email protected]

    Individuals must furnish reasonable identification by showing any two of the following: Social security card; driver's license; employee identification card; Medicare card; birth certificate; bank credit card; or other positive means of identification, or by signing an identity statement stipulating that knowingly or willfully seeking or obtaining access to records about another person under false pretenses is punishable by a fine of up to $5,000.

    Individuals requesting access must also comply with the FCC's Privacy Act regulations regarding verification of identity and access to records (47 CFR part 0, subpart E).

    RECORD ACCESS PROCEDURE:

    Individuals wishing to request access to and/or amendment of records about them should follow the Notification Procedure above.

    CONTESTING RECORD PROCEDURE:

    Individuals wishing to request an amendment of records about them should follow the Notification Procedure above.

    EXEMPTIONS PROMULGATED FOR THE SYSTEM:

    None.

    HISTORY:

    The FCC last gave full notice of this system of records, FCC/OGC-3, Adjudication of Internal Complaints against Employees, by publication in the Federal Register on April 5, 2006 (71 FR 17234, 17243).

    Federal Communications Commission. Marlene H. Dortch, Secretary.
    [FR Doc. 2018-03653 Filed 2-21-18; 8:45 am] BILLING CODE 6712-01-P
    FEDERAL COMMUNICATIONS COMMISSION [OMB 3060-0686] Information Collection Being Submitted to the Office of Management and Budget AGENCY:

    Federal Communications Commission.

    ACTION:

    Notice and request for comments.

    SUMMARY:

    As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995, the Federal Communications Commission (Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collection. Comments are requested concerning: Whether the collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.

    The Commission may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid Office of Management and Budget (OMB) control number.

    DATES:

    Written PRA comments should be submitted on or before March 23, 2018.

    ADDRESSES:

    Direct all PRA comments to Nicholas A. Fraser, OMB, via email [email protected]; and to Cathy Williams, FCC, via email [email protected] and to [email protected] Include in the comments the Title as shown in the SUPPLEMENTARY INFORMATION section below.

    FOR FURTHER INFORMATION CONTACT:

    For additional information about the information collection, contact Cathy Williams at (202) 418-2918.

    SUPPLEMENTARY INFORMATION:

    To view a copy of this information collection request (ICR) submitted to OMB: (1) Go to the web page http://www.reginfo.gov/public/do/PRAMain, (2) look for the section of the web page called “Currently Under Review,” (3) click on the downward-pointing arrow in the “Select Agency” box below the “Currently Under Review” heading, (4) select “Federal Communications Commission” from the list of agencies presented in the “Select Agency” box, (5) click the “Submit” button to the right of the “Select Agency” box, (6) when the list of Commission ICRs currently under review appears, look for the Title of this ICR and then click on the ICR Reference Number. A copy of the Commission's submission to OMB will be displayed.

    OMB Control No.: 3060-0686.

    Title: International Section 214 Process and Tariff Requirements—47 CFR 63.10, 63.11, 63.13, 63.18, 63.19, 63.21, 63.22, 63.24, 63.25 and 1.1311.

    Form No.: International Section 214—New Authorization; International Section 214 Authorization—Transfer of Control/Assignment; International Section 214—Special Temporary Authority and International Section 214—Foreign Carrier Affiliation Notification.

    Type of Review: Revision of a currently approved information collection.

    Respondents: Business or other for-profit.

    Number of Respondents: 528 respondents; 792 responses.

    Estimated Time per Response: 1-20 hours.

    Frequency of Response: On occasion reporting requirement, Quarterly reporting requirement, Recordkeeping requirement and third party disclosure requirement.

    Obligation to Respond: Required to obtain or retain benefits. The Commission's statutory authority for this information collection under sections 1, 4(i), 4(j), 10, 11, 201-205, 208, 211, 214, 218, 219, 220, 303(r), 309, 310, 403 and 571 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), 154(j), 160, 161, 201-205, 208, 211, 214, 218, 219, 220, 303(r), 309, 310, 403 and 571.

    Total Annual Burden: 3,152 hours.

    Annual Cost Burden: $752,400.

    Privacy Act Impact Assessment: No impact(s).

    Nature and Extent of Confidentiality: The Commission has not granted assurances of confidentiality to those parties submitting the information, except for the list or routes required under 47 CFR 63.22(h) which the Commission will treat as not routinely available for public inspection. In all the other cases where a respondent believes information requires confidentiality, the respondent can request confidential treatment under Section 0.459 of the Commission's rules, 47 CFR 0.459.

    Needs and Uses: The Federal Communications Commission (“Commission”) is requesting that the Office of Management and Budget (OMB) approve a revision of OMB Control No. 3060-0686 titled, “International Section 214 Authorization Process and Tariff Requirements—47 CFR Sections 63.10, 63.11, 63.13, 63.18, 63.19, 63.21, 63.24, 63.25 and 1.1311.” The purpose of this revision is to obtain OMB approval for the reporting requirements under newly adopted 47 CFR 63.22(h), which requires facilities-based international service providers electronically to submit, and maintain, a list of routes on which they have direct termination arrangements with a foreign carrier. In addition, this list maybe used to initiate targeted data collections regarding those routes. Finally, we remove from this collection the requirements related to 47 U.S.C. 310(b) which are now included in the collection under OMB Control No. 3060-1163.

    The current title of OMB Control No. 3060-0686 is “International Section 214 Process and Tariff Requirements—47 CFR Sections 63.10, 63.11, 63.13, 63.18, 63.19, 63.21, 63.24, 63.25 and 1.1311”. The Commission would like to change the title to “International Section 214 Process and Tariff Requirements—47 CFR Sections 63.10, 63.11, 63.13, 63.18, 63.19, 63.21, 63.22, 63.24, 63.25 and 1.1311” to reflect the addition of 47 CFR 63.22(h) to the information collection.

    The information will be used by the Commission staff in carrying out its duties under the Communications Act. The information collections pertaining to Part 63 are necessary largely to determine the qualifications of applicants to provide common carrier international telecommunications service under section 214 of the Communications Act, 47 U.S.C. 214, including applicants that are, or are affiliated with, foreign carriers, and to determine whether and under what conditions the authorizations are in the public interest, convenience, and necessity. The information collections are also necessary to maintain effective oversight of U.S. international carriers generally.

    The frequency of filing applications pursuant to Sections 214 will be determined largely by the applicant seeking to provide U.S international common carrier service under section 214 of the Communications Act, 47 U.S.C. 214. Carriers will also determine largely the frequency of filing under the other rules included in this collection, with the exception of the quarterly reports required of certain carriers under 47 CFR 63.10(c) and the list of routes for which a facilities-based international service provider must make a one-time filing and update as necessary under 47 CFR 63.22(h). If the collections are not conducted or are conducted less frequently, applicants will not obtain the authorizations necessary to provide telecommunications services, and the Commission will be unable to carry out its mandate under the Communications Act of 1934. In addition, without the information collections, the United States would jeopardize its ability to fulfill the U.S. obligations as negotiated under the World Telecommunications Organization (WTO) Basic Telecom Agreement because these collections are imperative to detecting and deterring anticompetitive conduct. They are also necessary to preserve the Executive Branch agencies' and the Commission's ability to review foreign investments for national security, law enforcement, foreign policy, and trade concerns. Regarding 47 CFR 63.11, carriers determine largely when to notify the Commission of planned investments by or in foreign carriers. If the information is not collected by the Commission, we will not be able to prevent carriers that control bottleneck facilities in foreign countries from using those bottlenecks to discriminate against unaffiliated U.S. carriers.

    Federal Communications Commission. Marlene H. Dortch, Secretary, Office of the Secretary.
    [FR Doc. 2018-03546 Filed 2-21-18; 8:45 am] BILLING CODE 6712-01-P
    FEDERAL COMMUNICATIONS COMMISSION [CC Docket No. 92-237; DA 18-112] Next Meeting of the North American Numbering Council AGENCY:

    Federal Communications Commission.

    ACTION:

    Notice.

    SUMMARY:

    In this document, the Commission released a public notice announcing the meeting of the North American Numbering Council (NANC). At this meeting, the NANC Working Groups will report on their progress in developing recommendations for the NANC's consideration. In addition, the NANC will continue its discussions on how to modernize and foster more efficient number administration in the United States. The NANC meeting is open to the public. The FCC will accommodate as many attendees as possible; however, admittance will be limited to seating availability. The Commission will also provide audio coverage of the meeting. Other reasonable accommodations for people with disabilities are available upon request. Request for such accommodations should be submitted via email to [email protected] or by calling the Consumer and governmental Affairs Bureau @ (202) 418-0530 (voice) (202) 418-0432 (TTY). Such requests should include a detailed description of the accommodation needed. In addition, please allow at least five days advance notice for accommodation requests; last minute requests will be accepted but may not be possible to accommodate.

    Members of the public may submit comments to the NANC in the FCC's Electronic Comment Filing System, ECFS, at www.fcc.gov/ecfs. Comments to the NANC should be filed in cc Docket No. 92-237.

    More information about the NANC is available at https://www.fcc.gov/about-fcc/advisory-committees/general/north-american-numbering-council. You may also contact Marilyn Jones, DFO of the NANC, at [email protected], or (202) 418-2357, Michelle Sclater, Alternate DFO, at [email protected], or (202) 418- 0388; or Carmell Weathers, special assistant to the DFO, at [email protected], or (202) 418-2325.

    DATES:

    Friday, March 16, 2018, 9:30 a.m.

    ADDRESSES:

    Requests to make an oral statement or provide written comments to the NANC should be sent to Carmell Weathers, Competition Policy Division, Wireline Competition Bureau, Federal Communications Commission, Portals II, 445 12th Street SW, Room 5-C162, Washington, DC 20554.

    FOR FURTHER INFORMATION CONTACT:

    Carmell Weathers at (202) 418-2325 or [email protected] The fax number is: (202) 418-1413. The TTY number is: (202) 418-0484.

    SUPPLEMENTARY INFORMATION:

    This is a summary of the Commission's document in CC Docket No. 92-237, DA 18-112 released February 6, 2018. The complete text in this document is available for public inspection and copying during normal business hours in the FCC Reference Information Center, Portals II, 445 12th Street SW, Room CY-A257, Washington, DC 20554. The document may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street SW, Room CY-B402, Washington, DC 20554, telephone (800) 378-3160 or (202) 863-2893, facsimile (202) 863-2898, or via the internet at http://www.bcpiweb.com. It is available on the Commission's website at http://www.fcc.gov.

    *The Agenda may be modified at the discretion of the NANC Chairman with the approval of the Designated Federal Officer (DFO). Federal Communications Commission. Marilyn Jones, Senior Counsel for Number Administration, Wireline Competition Bureau.
    [FR Doc. 2018-03652 Filed 2-21-18; 8:45 am] BILLING CODE 6712-01-P
    FEDERAL RESERVE SYSTEM Proposed Agency Information Collection Activities; Comment Request AGENCY:

    Board of Governors of the Federal Reserve System.

    ACTION:

    Notice, request for comment.

    SUMMARY:

    The Board of Governors of the Federal Reserve System (Board) invites comment on a proposal to extend for three years, without revision, the Quarterly Report of Assets and Liabilities of Large Foreign Offices of U.S. Banks (FR 2502q; OMB No. 7100-0079).

    DATES:

    Comments must be submitted on or before April 23, 2018.

    ADDRESSES:

    You may submit comments, identified by FR 2502q, by any of the following methods:

    Agency Website: http://www.federalreserve.gov. Follow the instructions for submitting comments at http://www.federalreserve.gov/apps/foia/proposedregs.aspx.

    Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.

    Email: [email protected] Include OMB number in the subject line of the message.

    Fax: (202) 452-3819 or (202) 452-3102.

    Mail: Ann E. Misback, Secretary, Board of Governors of the Federal Reserve System, 20th Street and Constitution Avenue NW, Washington, DC 20551.

    All public comments are available from the Board's website at http://www.federalreserve.gov/apps/foia/proposedregs.aspx as submitted, unless modified for technical reasons. Accordingly, your comments will not be edited to remove any identifying or contact information. Public comments may also be viewed electronically or in paper form in Room 3515, 1801 K Street (between 18th and 19th Streets NW) Washington, DC 20006 between 9:00 a.m. and 5:00 p.m. on weekdays.

    Additionally, commenters may send a copy of their comments to the OMB Desk Officer—Shagufta Ahmed—Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10235, 725 17th Street NW, Washington, DC 20503 or by fax to (202) 395-6974.

    FOR FURTHER INFORMATION CONTACT:

    A copy of the PRA OMB submission, including the proposed reporting form and instructions, supporting statement, and other documentation will be placed into OMB's public docket files, once approved. These documents will also be made available on the Federal Reserve Board's public website at: http://www.federalreserve.gov/apps/reportforms/review.aspx or may be requested from the agency clearance officer, whose name appears below.

    Federal Reserve Board Clearance Officer—Nuha Elmaghrabi—Office of the Chief Data Officer, Board of Governors of the Federal Reserve System, Washington, DC 20551 (202) 452-3829. Telecommunications Device for the Deaf (TDD) users may contact (202) 263-4869, Board of Governors of the Federal Reserve System, Washington, DC 20551.

    SUPPLEMENTARY INFORMATION:

    On June 15, 1984, the Office of Management and Budget (OMB) delegated to the Board authority under the Paperwork Reduction Act (PRA) to approve of and assign OMB control numbers to collection of information requests and requirements conducted or sponsored by the Board. In exercising this delegated authority, the Board is directed to take every reasonable step to solicit comment. In determining whether to approve a collection of information, the Board will consider all comments received from the public and other agencies.

    Request for Comment on Information Collection Proposal

    The Board invites public comment on the following information collection, which is being reviewed under authority delegated by the OMB under the PRA. Comments are invited on the following:

    a. Whether the proposed collection of information is necessary for the proper performance of the Federal Reserve's functions; including whether the information has practical utility;

    b. The accuracy of the Federal Reserve's estimate of the burden of the proposed information collection, including the validity of the methodology and assumptions used;

    c. Ways to enhance the quality, utility, and clarity of the information to be collected;

    d. Ways to minimize the burden of information collection on respondents, including through the use of automated collection techniques or other forms of information technology; and

    e. Estimates of capital or startup costs and costs of operation, maintenance, and purchase of services to provide information.

    At the end of the comment period, the comments and recommendations received will be analyzed to determine the extent to which the Federal Reserve should modify the proposal prior to giving final approval.

    Proposal to approve under OMB delegated authority the extension for three years, without revision, of the following report:

    Report title: Quarterly Report of Assets and Liabilities of Large Foreign Offices of U.S. Banks.

    Agency form number: FR 2502q.

    OMB control number: 7100-0079.

    Frequency: Quarterly.

    Respondents: U.S. commercial banks, bank holding companies, including financial holding companies, and banking Edge and agreement corporations (U.S. banks) for their large branches and banking subsidiaries that are located in the United Kingdom or the Caribbean.

    Estimated number of respondents: 27.

    Estimated average hours per response: 1.

    Estimated annual burden hours: 108.

    General description of report: The FR 2502q collects, for each reporting office, claims on and liabilities to residents of the United States and of all countries as of each quarter-end. Additional details are collected about positions vis-à-vis U.S. residents. Positions vis-à-vis other non-U.S. offices of the parent bank and positions arising from derivatives contracts are also broken out. The data are used in constructing a piece of the Financial Accounts of the United States that are compiled by the Board and in preparing the U.S. International Transactions Accounts and the International Investment Position that are compiled by the Bureau for Economic Analysis (BEA), an agency of the Department of Commerce.

    Legal authorization and confidentiality: The Board is authorized to collect the information in the 2502q from (1) bank holding companies pursuant to section 5 of the Bank Holding Company Act (12 U.S.C. 1844(c)), which authorizes the Board to require a bank holding company and any subsidiary to submit reports, (2) Edge and agreement corporations pursuant to sections 25(7) and 25A(17) of the Federal Reserve Act (“FRA”) (12 U.S.C. 604a and 625), which authorize the Board to require Edge and agreement corporations to make reports to the Board, and (3) depository institutions pursuant to section 11(a)(2) of the FRA (12 U.S.C. 248(a)(2)), which authorizes the Board to require reports from each member bank as it may deem necessary and authorizes the Board to prescribe reports of liabilities and assets from insured depository institutions to enable the Board to discharge its responsibility to monitor and control monetary and credit aggregates. The FR 2502q report is mandatory. The information from this collection would not be accorded confidential treatment because release of the information is not likely to result in substantial harm to the competitive position of the respondents. If confidential treatment is requested by a respondent, the Board will review the request to determine if confidential treatment is appropriate.

    Board of Governors of the Federal Reserve System, February 15, 2018. Ann E. Misback, Secretary of the Board.
    [FR Doc. 2018-03549 Filed 2-21-18; 8:45 am] BILLING CODE 6210-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Administration for Children and Families [CFDA Number 93.676] Announcement of Intent To Issue One OPDIV-Initiated Supplement to BCFS Health and Human Services Under the Standing Announcement for Residential (Shelter) Services for Unaccompanied Children, HHS-2017-ACF-ORR-ZU-1132 AGENCY:

    Unaccompanied Alien Children's (UAC) Program, Office of Refugee Resettlement (ORR), Administration for Children and Families (ACF), U.S. Department of Health and Human Services (HHS).

    ACTION:

    Notice of intent to issue one OPDIV-Initiated Supplement to BCFS Health and Human Services, San Antonio, TX under the UAC Program.

    SUMMARY:

    ACF, ORR, announces the issuance of one OPDIV-Initiated Supplement to BCFS Health and Human Services, San Antonio, TX in the amount of $15,000,000.

    ORR has been identifying additional capacity to provide shelter for potential increases in apprehensions of Unaccompanied Children at the U.S. Southern Border. Planning for increased shelter capacity is a prudent step to ensure that ORR is able to meet its responsibility, by law, to provide shelter for Unaccompanied Alien Children referred to its care by the Department of Homeland Security (DHS).

    To ensure sufficient capacity to provide shelter to unaccompanied children referred to HHS, BCFS proposed to provide ORR with 450 beds in an expedited manner.

    DATES:

    Supplemental award funds will support activities for sixty days after activation.

    FOR FURTHER INFORMATION CONTACT:

    Jallyn Sualog, Director, Division of Children's Services, Office of Refugee Resettlement, 330 Street SW, Washington, DC 20447. Phone: 202-401-4997. Email: [email protected]

    SUPPLEMENTARY INFORMATION:

    ORR is continuously monitoring its capacity to shelter the unaccompanied children referred to HHS, as well as the information received from interagency partners, to inform any future decisions or actions.

    ORR has specific requirements for the provision of services. Award recipients must have the infrastructure, licensing, experience, and appropriate level of trained staff to meet those requirements. The expansion of the existing program and its services through this supplemental award is a key strategy for ORR to be prepared to meet its responsibility to provide shelter for Unaccompanied Children referred to its care by DHS and so that the U.S. Border Patrol can continue its vital national security mission to prevent illegal migration, trafficking, and protect the borders of the United States.

    Statutory Authority: This program is authorized by—

    (A) Section 462 of the Homeland Security Act of 2002, which in March 2003, transferred responsibility for the care and custody of Unaccompanied Alien Children from the Commissioner of the former Immigration and Naturalization Service (INS) to the Director of ORR of the Department of Health and Human Services (HHS).

    (B) The Flores Settlement Agreement, Case No. CV85-4544RJK (C. D. Cal. 1996), as well as the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (Pub.L. 110-457), which authorizes post release services under certain conditions to eligible children. All programs must comply with the Flores Settlement Agreement, Case No. CV85-4544-RJK (C.D. Cal. 1996), pertinent regulations and ORR policies and procedures.

    Elizabeth Leo, Grants Policy Specialist, Division of Grants Policy, Office of Administration.
    [FR Doc. 2018-03583 Filed 2-21-18; 8:45 am] BILLING CODE 4184-45-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration [Docket No. FDA-2018-N-0140] Peripheral and Central Nervous System Drugs Advisory Committee; Notice of Meeting; Establishment of a Public Docket; Request for Comments AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Notice, establishment of a public docket; request for comments.

    SUMMARY:

    The Food and Drug Administration (FDA) announces a forthcoming public advisory committee meeting of the Peripheral and Central Nervous System Drugs Advisory Committee. The general function of the committee is to provide advice and recommendations to FDA on regulatory issues. The meeting will be open to the public. FDA is establishing a docket for public comment on this document.

    DATES:

    The meeting will be held on April 19, 2018, from 8 a.m. to 12:30 p.m.

    ADDRESSES:

    FDA White Oak Campus, 10903 New Hampshire Ave., Bldg. 31 Conference Center, the Great Room (Rm. 1503), Silver Spring, MD 20993-0002. Answers to commonly asked questions including information regarding special accommodations due to a disability, visitor parking, and transportation may be accessed at: https://www.fda.gov/AdvisoryCommittees/AboutAdvisoryCommittees/ucm408555.htm.

    FDA is establishing a docket for public comment on this meeting. The docket number is FDA-2018-N-0140. The docket will close on April 18, 2018. Submit either electronic or written comments on this public meeting by April 18, 2018. Please note that late, untimely filed comments will not be considered. Electronic comments must be submitted on or before April 18, 2018. The https://www.regulations.gov electronic filing system will accept comments until midnight Eastern Time at the end of April 18, 2018. Comments received by mail/hand delivery/courier (for written/paper submissions) will be considered timely if they are postmarked or the delivery service acceptance receipt is on or before that date.

    Comments received on or before April 5, 2018, will be provided to the committee. Comments received after that date will be taken into consideration by FDA.

    You may submit comments as follows:

    Electronic Submissions

    Submit electronic comments in the following way:

    Federal eRulemaking Portal: https://www.regulations.gov. Follow the instructions for submitting comments. Comments submitted electronically, including attachments, to https://www.regulations.gov will be posted to the docket unchanged. Because your comment will be made public, you are solely responsible for ensuring that your comment does not include any confidential information that you or a third party may not wish to be posted, such as medical information, your or anyone else's Social Security number, or confidential business information, such as a manufacturing process. Please note that if you include your name, contact information, or other information that identifies you in the body of your comments, that information will be posted on https://www.regulations.gov.

    • If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).

    Written/Paper Submissions

    Submit written/paper submissions as follows:

    Mail/Hand delivery/Courier (for written/paper submissions): Dockets Management Staff (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

    • For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”

    Instructions: All submissions received must include the Docket No. FDA-2018-N-0140 for “Peripheral and Central Nervous System Drugs Advisory Committee; Notice of Meeting; Establishment of a Public Docket; Request for Comments.” Received comments, those filed in a timely manner (see ADDRESSES), will be placed in the docket and, except for those submitted as “Confidential Submissions,” publicly viewable at https://www.regulations.gov or at the Dockets Management Staff between 9 a.m. and 4 p.m., Monday through Friday.

    • Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” FDA will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on https://www.regulations.gov. Submit both copies to the Dockets Management Staff. If you do not wish your name and contact information be made publicly available, you can provide this information on the cover sheet and not in the body of your comments and you must identify the information as “confidential.” Any information marked as “confidential” will not be disclosed except in accordance with 21 CFR 10.20 and other applicable disclosure law. For more information about FDA's posting of comments to public dockets, see 80 FR 56469, September 18, 2015, or access the information at: https://www.thefederalregister.org/fdsys/pkg/FR-2015-09-18/pdf/2015-23389.pdf.

    Docket: For access to the docket to read background documents or the electronic and written/paper comments received, go to https://www.regulations.gov and insert the docket number, found in brackets in the heading of this document, into the “Search” box and follow the prompts and/or go to the Dockets Management Staff, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

    FOR FURTHER INFORMATION CONTACT:

    Moon Hee V. Choi, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 31, Rm. 2417, Silver Spring, MD 20993-0002, 301-796-9001, Fax: 301-847-8533, email: [email protected], or FDA Advisory Committee Information Line, 1-800-741-8138 (301-443-0572 in the Washington, DC area). A notice in the Federal Register about last minute modifications that impact a previously announced advisory committee meeting cannot always be published quickly enough to provide timely notice. Therefore, you should always check the FDA's website at https://www.fda.gov/AdvisoryCommittees/default.htm and scroll down to the appropriate advisory committee meeting link, or call the advisory committee information line to learn about possible modifications before coming to the meeting.

    SUPPLEMENTARY INFORMATION:

    Agenda: The committee will discuss new drug application (NDA) 210365, cannabidiol oral solution, sponsored by GW Pharmaceuticals, for the adjunctive treatment of seizures associated with Lennox-Gastaut syndrome or Dravet syndrome in patients 2 years of age and older.

    FDA intends to make background material available to the public no later than 2 business days before the meeting. If FDA is unable to post the background material on its website prior to the meeting, the background material will be made publicly available at the location of the advisory committee meeting, and the background material will be posted on FDA's website after the meeting. Background material is available at https://www.fda.gov/AdvisoryCommittees/Calendar/default.htm. Scroll down to the appropriate advisory committee meeting link.

    Procedure: Interested persons may present data, information, or views, orally or in writing, on issues pending before the committee. All electronic and written submissions submitted to the docket (see ADDRESSES) on or before April 5, 2018, will be provided to the committee. Oral presentations from the public will be scheduled between approximately 10:30 a.m. and 11:30 a.m. Those individuals interested in making formal oral presentations should notify the contact person and submit a brief statement of the general nature of the evidence or arguments they wish to present, the names and addresses of proposed participants, and an indication of the approximate time requested to make their presentation on or before March 28, 2018. Time allotted for each presentation may be limited. If the number of registrants requesting to speak is greater than can be reasonably accommodated during the scheduled open public hearing session, FDA may conduct a lottery to determine the speakers for the scheduled open public hearing session. The contact person will notify interested persons regarding their request to speak by March 29, 2018.

    Persons attending FDA's advisory committee meetings are advised that FDA is not responsible for providing access to electrical outlets.

    For press inquiries, please contact the Office of Media Affairs at [email protected] or 301-796-4540.

    FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with disabilities. If you require accommodations due to a disability, please contact Moon Hee V. Choi (see FOR FURTHER INFORMATION CONTACT) at least 7 days in advance of the meeting.

    FDA is committed to the orderly conduct of its advisory committee meetings. Please visit our website at https://www.fda.gov/AdvisoryCommittees/AboutAdvisoryCommittees/ucm111462.htm for procedures on public conduct during advisory committee meetings.

    Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).

    Dated: February 15, 2018. Leslie Kux, Associate Commissioner for Policy.
    [FR Doc. 2018-03603 Filed 2-21-18; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration [Docket No. FDA-2014-N-1048] Agency Information Collection Activities; Proposed Collection; Comment Request; Medical Device Labeling Regulations AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Notice.

    SUMMARY:

    The Food and Drug Administration (FDA or Agency) is announcing an opportunity for public comment on the proposed collection of certain information by the Agency. Under the Paperwork Reduction Act of 1995 (PRA), Federal Agencies are required to publish notice in the Federal Register concerning each proposed collection of information, including each proposed extension of an existing collection of information, and to allow 60 days for public comment in response to the notice. This notice solicits comments on Medical Device Labeling Regulations.

    DATES:

    Submit either electronic or written comments on the collection of information by April 23, 2018.

    ADDRESSES:

    You may submit comments as follows. Please note that late, untimely filed comments will not be considered. Electronic comments must be submitted on or before April 23, 2018. The https://www.regulations.gov electronic filing system will accept comments until midnight Eastern Time at the end of April 23, 2018. Comments received by mail/hand delivery/courier (for written/paper submissions) will be considered timely if they are postmarked or the delivery service acceptance receipt is on or before that date.

    Electronic Submissions

    Submit electronic comments in the following way:

    Federal eRulemaking Portal: https://www.regulations.gov. Follow the instructions for submitting comments. Comments submitted electronically, including attachments, to https://www.regulations.gov will be posted to the docket unchanged. Because your comment will be made public, you are solely responsible for ensuring that your comment does not include any confidential information that you or a third party may not wish to be posted, such as medical information, your or anyone else's Social Security number, or confidential business information, such as a manufacturing process. Please note that if you include your name, contact information, or other information that identifies you in the body of your comments, that information will be posted on https://www.regulations.gov.

    • If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).

    Written/Paper Submissions

    Submit written/paper submissions as follows:

    Mail/Hand delivery/Courier (for written/paper submissions): Dockets Management Staff (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

    • For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”

    Instructions: All submissions received must include the Docket No. FDA-2014-N-1048 for “Agency Information Collection Activities; Proposed Collection; Comment Request; Medical Device Labeling Regulations.” Received comments, those filed in a timely manner (see ADDRESSES), will be placed in the docket and, except for those submitted as “Confidential Submissions,” publicly viewable at https://www.regulations.gov or at the Dockets Management Staff between 9 a.m. and 4 p.m., Monday through Friday.

    • Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on https://www.regulations.gov. Submit both copies to the Dockets Management Staff. If you do not wish your name and contact information to be made publicly available, you can provide this information on the cover sheet and not in the body of your comments and you must identify this information as “confidential.” Any information marked as “confidential” will not be disclosed except in accordance with 21 CFR 10.20 and other applicable disclosure law. For more information about FDA's posting of comments to public dockets, see 80 FR 56469, September 18, 2015, or access the information at: https://www.thefederalregister.org/fdsys/pkg/FR-2015-09-18/pdf/2015-23389.pdf.

    Docket: For access to the docket to read background documents or the electronic and written/paper comments received, go to https://www.regulations.gov and insert the docket number, found in brackets in the heading of this document, into the “Search” box and follow the prompts and/or go to the Dockets Management Staff, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

    FOR FURTHER INFORMATION CONTACT:

    Amber Sanford, Office of Operations, Food and Drug Administration, Three White Flint North, 10A-12M, 11601 Landsdown St., North Bethesda, MD 20852, 301-796-8867, [email protected]

    SUPPLEMENTARY INFORMATION:

    Under the PRA (44 U.S.C. 3501-3520), Federal Agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes Agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal Agencies to provide a 60-day notice in the Federal Register concerning each proposed collection of information, including each proposed extension of an existing collection of information, before submitting the collection to OMB for approval. To comply with this requirement, FDA is publishing notice of the proposed collection of information set forth in this document.

    With respect to the following collection of information, FDA invites comments on these topics: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.

    Medical Device Labeling Regulations—21 CFR parts 800, 801, and 809 OMB Control Number 0910-0485—Extension

    Section 502 of the Federal Food, Drug, and Cosmetic Act (FD&C Act) (21 U.S.C. 352), among other things, establishes requirements for the label or labeling of a medical device so that it is not misbranded and subject to a regulatory action. Certain provisions under section 502 of the FD&C Act require manufacturers, importers, and distributors of medical devices to disclose information about themselves or the devices on the labels or labeling for the devices.

    Section 502(b) of the FD&C Act requires that for packaged devices, the label must bear the name and place of business of the manufacturer, packer, or distributor; and an accurate statement of the quantity of the contents. Section 502(f) of the FD&C Act requires that the labeling for a device must contain adequate directions for use. FDA may, however, grant an exemption if the Agency determines that the adequate directions for use labeling requirements are not necessary for the particular case as it relates to protection of the public health.

    FDA regulations under parts 800, 801, and 809 (21 CFR parts 800, 801, and 809) require disclosure of specific information by manufacturers, importers, and distributors of medical devices about themselves or the devices, on the label or labeling for the devices, to health professionals and consumers. Most of the regulations under parts 800, 801, and 809 are derived from requirements of section 502 of the FD&C Act. Section 502 provides, in part, that a device shall be misbranded if, among other things, its label or labeling fails to bear certain required information concerning the device, is false or misleading in any particular way, or fails to contain adequate directions for use.

    Recordkeeping Burden

    Section 801.150(a)(2) establishes recordkeeping requirements for manufacturers of devices to retain a copy of the agreement containing the specifications for the processing, labeling, or repacking of the device for 2 years after the final shipment or delivery of the device. Section 801.150(a)(2) also requires that the subject respondents make copies of this agreement available for inspection at any reasonable hour to any officer or employee of the Department of Health and Human Services (HHS) who requests them.

    Section 801.410(e) requires copies of invoices, shipping documents, and records of sale or distribution of all impact resistant lenses, including finished eyeglasses and sunglasses, be maintained for 3 years by the retailer and made available upon request by any officer or employee of FDA or by any other officer or employee acting on behalf of the Secretary of HHS.

    Section 801.410(f) requires that the results of impact tests and description of the test method and apparatus be retained for a period of 3 years.

    Section 801.421(d) establishes requirements for hearing aid dispensers to retain copies of all physician statements or any waivers of medical evaluation for 3 years after dispensing the hearing aid.

    Section 801.430(f) requires manufacturers of menstrual tampons to devise and follow an ongoing sampling plan for measuring the absorbency of menstrual tampons. In addition, manufacturers must use the method and testing parameters described in § 801.430(f).

    Section 801.435(g) requires latex condom manufacturers to document and provide, upon request, an appropriate justification for the application of the testing data from one product on any variation of that product to support expiration dating in the user labeling.

    Third-Party Disclosure Burden

    Sections 800.10(a)(3) and 800.12(c) require that the label for contact lens cleaning solutions bear a prominent statement alerting consumers of the tamper-resistant feature. Further, § 800.12 requires that packaged contact lens cleaning solutions contain a tamper-resistant feature to prevent malicious adulteration.

    Section 800.10(b)(2) requires that the labeling for liquid ophthalmic preparations packed in multiple-dose containers provide information on the duration of use and the necessary warning information to afford adequate protection from contamination during use.

    Section 801.1 requires that the label for a device in package form contain the name and place of business of the manufacturer, packer, or distributor.

    Section 801.5 requires that labeling for a device include information on intended use as defined under § 801.4 and provide adequate directions to assure safe use by the lay consumers.

    Section 801.61 requires that the principal display panel of an over-the-counter (OTC) device in package form must bear a statement of the identity of the device. The statement of identity of the device must include the common name of the device followed by an accurate statement of the principal intended actions of the device. Section 801.62 requires that the label for an OTC device in package form shall bear a declaration of the net quantity of contents. The label must express the net quantity in terms of weight, measure, numerical count, or a combination of numerical count and weight, measure, or size.

    Section 801.109 establishes labeling requirements for prescription devices, in which the label for the device must describe the application or use of the device and contain a cautionary statement restricting the device for sale by, or on the order of, an appropriate professional.

    Section 801.110 establishes labeling requirements for a prescription device delivered to the ultimate purchaser or user, by a licensed practitioner. The device must be accompanied by labeling bearing the name and address of the licensed practitioner, directions for use, and cautionary statements, if any, provided by the order.

    Section 801.150(e) requires a written agreement between firms involved in the assembling or packaging of a nonsterile device containing labeling that identifies the final finished device as sterile and then shipping such device in interstate commerce prior to sterilization. In addition, § 801.150(e) requires that each pallet, carton, or other designated unit be conspicuously marked to show its nonsterile nature when introduced into interstate commerce and while being held prior to sterilization. When both requirements are met, FDA will take no regulatory action against the device as being misbranded or adulterated.

    Section 801.405(b)(1) provides for labeling requirements for articles, including repair kits, re-liners, pads, and cushions, intended for use in temporary repairs and refitting of dentures for lay persons. Section 801.405(b)(1) also requires that the labeling contain the word “emergency” preceding and modifying each indication-for-use statement for denture repair kits, and the word “temporary” preceding and modifying each indication-for-use statement for re-liners, pads, and cushions.

    Section 801.405(c) provides for labeling requirements that contain essentially the same information described under § 801.405(b)(1). The information is intended to enable a lay person to understand the limitations of using OTC denture repair kits and denture re-liners, pads, and cushions.

    Section 801.420(c)(1) requires that manufacturers or distributors of hearing aids develop a user instructional brochure to be provided by the dispenser of the hearing aid to prospective users. The brochure must contain detailed information on the use and maintenance of the hearing aid.

    Section 801.420(c)(4) establishes requirements that the user instructional brochure or separate labeling provide for technical data elements useful for selecting, fitting, and checking the performance of a hearing aid. In addition, § 801.420(c)(4) provides for testing requirements to determine that the required data elements must be conducted in accordance with the American National Standards Institute (ANSI) “Specification of Hearing Aid Characteristics,” ANSI S3.22-2003 (Revision of ANSI S3.22-1996), which is incorporated by reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51.

    Section 801.421(b) establishes requirements for the hearing aid dispenser to provide prospective users with a copy of the user instructional brochure along with an opportunity to review content, either orally or by the predominant method of communication used during the sale.

    Section 801.421(c) establishes requirements for the hearing aid dispenser to provide a copy of the user instructional brochure to the prospective purchaser of any hearing aid upon request, or, if the brochure is unavailable, provide the name and address of the manufacturer or distributor from which it may be obtained.

    Section 801.430(d) establishes labeling requirements for menstrual tampons to provide information on signs, risk factors, and ways to reduce the risk of Toxic Shock Syndrome (TSS).

    Section 801.430(e)(2) requires menstrual tampon package labels to provide information on the ranges of absorbency and absorbency term based on testing required under § 801.430(f) and an explanation of selecting absorbencies that reduce the risk of contracting TSS.

    Section 801.435(b), (c), and (h) establishes requirements for condom labeling to bear an expiration date that is supported by testing that demonstrates the integrity of three random lots of the product.

    Section 809