Federal Register Vol. 83, No.39,

Federal Register Volume 83, Issue 39 (February 27, 2018)

Page Range8321-8603
FR Document

83_FR_39
Current View
Page and SubjectPDF
83 FR 8396 - Assistance to States for the Education of Children With Disabilities; Preschool Grants for Children With DisabilitiesPDF
83 FR 8501 - Notice of Intent To Prepare an Environmental Impact Statement (EIS) for the Resilient Bridgeport: National Disaster Resilience and Rebuild by Design Projects in the City of Bridgeport, ConnecticutPDF
83 FR 8523 - Sunshine Act Cancellation Notice-OPIC February 28, 2018 Public HearingPDF
83 FR 8523 - Sunshine Act Cancellation Notice-OPIC'S March 8, 2018 Annual Public HearingPDF
83 FR 8561 - Sunshine Act MeetingsPDF
83 FR 8507 - Notice of Proposed Information Collection Requests: 2019-2021 IMLS Peer Reviewer Nomination FormsPDF
83 FR 8403 - Approval and Promulgation of Implementation Plans; California; California Mobile Source RegulationsPDF
83 FR 8408 - Receipt of Several Pesticide Petitions Filed for Residues of Pesticide Chemicals in or on Various CommoditiesPDF
83 FR 8479 - Access to Confidential Business Information by Science Applications International CorporationPDF
83 FR 8476 - Registration Review; Draft Human Health and/or Ecological Risk Assessments for Several Pesticides; Notice of AvailabilityPDF
83 FR 8473 - Inquiry To Learn Whether Businesses Assert Business Confidentiality Claims Regarding Waste Import and ExportPDF
83 FR 8478 - Proposed Information Collection Request; Comment Request; Certification and Compliance Requirements for Medium- and Heavy-Duty Engines and Vehicles (Greenhouse Gases and Fuel Economy)PDF
83 FR 8471 - Registration Review Proposed Interim Decisions for Several Pesticides; Notice of AvailabilityPDF
83 FR 8472 - Interim Registration Review Decisions and Case Closures for Several Pesticides; Notice of AvailabilityPDF
83 FR 8470 - Pesticide Product Registration; Receipt of Applications for New Active IngredientsPDF
83 FR 8321 - Expanding the Size of the Board of Immigration AppealsPDF
83 FR 8506 - Notice Pursuant to the National Cooperative Research and Production Act of 1993-ODVA, Inc.PDF
83 FR 8506 - Notice Pursuant to the National Cooperative Research and Production Act of 1993-Medical CBRN Defense ConsortiumPDF
83 FR 8461 - DoD Medicare-Eligible Retiree Health Care Board of Actuaries; Notice of Federal Advisory Committee MeetingPDF
83 FR 8484 - Submission for OMB Review; Comment RequestPDF
83 FR 8460 - DoD Board of Actuaries; Notice of Federal Advisory Committee MeetingPDF
83 FR 8359 - Approval and Promulgation of Implementation Plans; Texas; Approval of Texas Motor Vehicle Rule RevisionsPDF
83 FR 8408 - Approval and Promulgation of Implementation Plans; Texas; Approval of Texas Motor Vehicle Rule RevisionsPDF
83 FR 8483 - Agency Information Collection Activities: Proposed Collection; Comment RequestPDF
83 FR 8467 - Combined Notice of Filings #1PDF
83 FR 8469 - Records Governing Off-the-Record Communications; Public NoticePDF
83 FR 8469 - Power 52 Inc.; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
83 FR 8466 - Combined Notice of Filings #1PDF
83 FR 8484 - Agency Information Collection Activities: Submission for OMB Review; Comment RequestPDF
83 FR 8462 - Proposed Collection; Comment RequestPDF
83 FR 8483 - Agency Information Collection Activities: Proposed Collection; Comment Request; CorrectionPDF
83 FR 8414 - Fisheries Off West Coast States; Highly Migratory Fisheries; Amendment 4 to Fishery Management Plan for West Coast Highly Migratory Species Fisheries; Revisions to the Biennial Management CyclePDF
83 FR 8485 - Tissue Agnostic Therapies in Oncology: Regulatory Considerations for Orphan Drug Designation; Public Workshop; Request for CommentsPDF
83 FR 8480 - Formations of, Acquisitions by, and Mergers of Bank Holding CompaniesPDF
83 FR 8564 - Notice of Intent of Waiver With Respect to Land; Indianapolis International Airport, Indianapolis, IndianaPDF
83 FR 8495 - Board of Visitors for the National Fire AcademyPDF
83 FR 8565 - Noise Exposure Map Notice for Fresno Yosemite International Airport, Fresno, CaliforniaPDF
83 FR 8566 - Notice of Intent To Rule on Request To Release Airport Property at the Northeast Philadelphia Airport (PNE), Philadelphia, PennsylvaniaPDF
83 FR 8564 - Notice of Intent To Release Certain Properties From All Terms, Conditions, Reservations and Restrictions of a Quitclaim Deed Agreement Between City of Leesburg and the Federal Aviation Administration for the Leesburg International Airport, Leesburg, FLPDF
83 FR 8507 - NASA Advisory Council; Science Committee; MeetingPDF
83 FR 8456 - Agency Information Collection Activities Under OMB ReviewPDF
83 FR 8493 - Agency Information Collection Activities: Proposed Collection; Comment Request; Property Acquisition and Relocation for Open SpacePDF
83 FR 8496 - National Initiative for Cybersecurity Careers and Studies Cybersecurity Training and Education Catalog CollectionPDF
83 FR 8399 - Proposed Changes to Validations for Intelligent Mail Package BarcodePDF
83 FR 8354 - Extension of Import Restrictions Imposed on Certain Archaeological Material From BelizePDF
83 FR 8416 - Requirements of the Vessel Monitoring System Type-Approval; Reopening of Public Comment PeriodPDF
83 FR 8571 - Hours of Service of Drivers: Application for Exemption; G4S Secure Solutions (USA), Inc. (G4S)PDF
83 FR 8569 - Parts and Accessories Necessary for Safe Operation; Application for an Exemption From the Automobile Carriers Conference of the American Trucking AssociationsPDF
83 FR 8567 - Qualification of Drivers; Exemption Applications; HearingPDF
83 FR 8568 - Qualification of Drivers; Exemption Applications; Epilepsy and Seizure DisordersPDF
83 FR 8465 - Notice of Request for Information (RFI) on Expanding Hydropower and Pumped Storage's Contribution to Grid Resiliency and ReliabilityPDF
83 FR 8433 - Notice of Request for Applicants for Appointment to the United States-Mexico Energy Business CouncilPDF
83 FR 8465 - Notice of Intent To Grant a Partially Exclusive LicensePDF
83 FR 8562 - Federal Register Meeting Notice; Meeting of the Interagency Task Force on Veterans Small Business DevelopmentPDF
83 FR 8457 - Britax Child Safety, Inc.; ComplaintsPDF
83 FR 8562 - Meeting of the Advisory Committee on Veterans Business AffairsPDF
83 FR 8462 - Notice of Intent To Grant Exclusive Patent License; Integrated Composite Construction Systems, LLCPDF
83 FR 8463 - Final Determination Regarding Energy Efficiency Improvements in ANSI/ASHRAE/IES Standard 90.1-2016: Energy Standard for Buildings, Except Low-Rise Residential BuildingsPDF
83 FR 8481 - Supplemental Evidence and Data Request on Home Mechanical VentilatorsPDF
83 FR 8482 - Meeting of the National Advisory Council for Healthcare Research and QualityPDF
83 FR 8485 - Wyeth Pharmaceuticals Inc. et al.; Withdrawal of Approval of 121 New Drug Applications and 161 Abbreviated New Drug Applications; CorrectionPDF
83 FR 8355 - Medical Devices; Hematology and Pathology Devices; Classification of Lynch Syndrome Test SystemsPDF
83 FR 8424 - Rubber Bands From the People's Republic of China, Sri Lanka, and Thailand: Initiation of Less-Than-Fair-Value InvestigationsPDF
83 FR 8429 - Rubber Bands From Thailand, the People's Republic of China, and Sri Lanka: Initiation of Countervailing Duty InvestigationsPDF
83 FR 8423 - Polytetrafluoroethylene Resin From India and the People's Republic of China: Postponement of Preliminary Determinations in the Less-Than-Fair-Value InvestigationsPDF
83 FR 8423 - Stainless Steel Bar From Brazil; and Certain Carbon and Alloy Steel Cut-to-Length Plate From Brazil: Correction to the Opportunity To Request Administrative Review NoticePDF
83 FR 8563 - 60-Day Notice of Proposed Information Collection: Maintenance of Records by DDTC RegistrantsPDF
83 FR 8365 - Fisheries of the Exclusive Economic Zone Off Alaska; Bering Sea and Aleutian Islands; 2018 and 2019 Harvest Specifications for GroundfishPDF
83 FR 8342 - Investment Company Liquidity Risk Management Programs; Commission Guidance for In-Kind ETFsPDF
83 FR 8340 - Hazardous Substances and Articles; Administration and Enforcement Regulations: Corrections to Animal Testing RegulationsPDF
83 FR 8357 - Safety Zone; Wando Terminal Crane Movement; Charleston, SCPDF
83 FR 8462 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; National Blue Ribbon Schools ProgramPDF
83 FR 8508 - Federal Advisory Committee on International Exhibitions (FACIE) Panel MeetingPDF
83 FR 8492 - National Maritime Security Advisory CommitteePDF
83 FR 8563 - 60-Day Notice of Proposed Information Collection: Request for Approval of Manufacturing License Agreements, Technical Assistance Agreements, and Other AgreementsPDF
83 FR 8422 - Notice of Public Meeting of the Maine Advisory Committee to the U.S. Commission on Civil RightsPDF
83 FR 8573 - Agency Information Collection Activity: Suspension of Monthly CheckPDF
83 FR 8572 - Agency Information Collection Activity: Dependents' Application for VA Education BenefitsPDF
83 FR 8391 - Internal Appeals Process for Material Supervisory Determinations and Policy Statement Regarding the Ombudsman for the Federal Reserve SystemPDF
83 FR 8410 - Endangered and Threatened Wildlife; 90-Day Finding on a Petition To List Chinook Salmon in the Upper Klamath-Trinity Rivers Basin as Threatened or Endangered Under the Endangered Species ActPDF
83 FR 8460 - Charter Renewal of Department of Defense Federal Advisory CommitteesPDF
83 FR 8336 - All-Terrain VehiclesPDF
83 FR 8459 - Proposed Collection; Comment RequestPDF
83 FR 8504 - Tapered Roller Bearings From Korea; Scheduling of the Final Phase of an Antidumping Duty InvestigationPDF
83 FR 8572 - Pricing for the 2018 San Francisco Mint Silver Reverse Proof SetPDF
83 FR 8418 - Request for Proposals: Multi-Family Housing Transfer and Prepayment Technical Assistance GrantsPDF
83 FR 8362 - Magnuson-Stevens Fishery Conservation and Management Act Provisions; Fisheries of the Northeastern United States; Northeast Groundfish Fishery; Fishing Year 2017; Extension of Emergency Removal of Southern Windowpane Accountability MeasuresPDF
83 FR 8492 - Center for Substance Abuse Prevention; Notice of MeetingPDF
83 FR 8532 - Self-Regulatory Organizations; The Nasdaq Stock Market LLC; Notice of Designation of a Longer Period for Commission Action on a Proposed Rule Change To List and Trade the Shares of the Western Asset Total Return ETFPDF
83 FR 8538 - Self-Regulatory Organizations; MIAX PEARL, LLC; Notice of Filing of a Proposed Rule Change To Adopt Rules Relating to Trading in Index OptionsPDF
83 FR 8533 - Self-Regulatory Organizations; Financial Industry Regulatory Authority, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Revise the Investment Company and Variable Contracts Products Representative (Series 6) ExaminationPDF
83 FR 8557 - Self-Regulatory Organizations; Nasdaq PHLX LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Section VI.A. of the Exchange's Pricing Schedule To Clarify the Exchange's Billing Practices With Respect to Permit FeesPDF
83 FR 8536 - Self-Regulatory Organizations; Financial Industry Regulatory Authority, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Revise the Operations Professional (Series 99) ExaminationPDF
83 FR 8559 - Self-Regulatory Organizations; Financial Industry Regulatory Authority, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Revise the Research Analyst (Series 86 and 87) ExaminationsPDF
83 FR 8526 - Self-Regulatory Organizations; Financial Industry Regulatory Authority, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Revise the Investment Banking Representative (Series 79) ExaminationPDF
83 FR 8554 - Self-Regulatory Organizations; Nasdaq ISE, LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Relating to Gateway FeesPDF
83 FR 8529 - Self-Regulatory Organizations; Financial Industry Regulatory Authority, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Revise the Direct Participation Programs Representative (Series 22) ExaminationPDF
83 FR 8524 - Self-Regulatory Organizations; Financial Industry Regulatory Authority, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Revise the General Securities Representative (Series 7) ExaminationPDF
83 FR 8437 - Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Cook Inlet Pipeline Cross Inlet Extension ProjectPDF
83 FR 8497 - Agency Information Collection Activities; Extension, Without Change, of a Currently Approved Collection: Verification Request and SupplementPDF
83 FR 8499 - Agency Information Collection Activities; Extension, Without Change, of a Currently Approved Collection: Petition for Amerasian, Widow(er), or Special ImmigrantPDF
83 FR 8436 - Proposed Information Collection; Comment Request; Permits for Incidental Taking of Endangered or Threatened SpeciesPDF
83 FR 8498 - Agency Information Collection Activities; Revision of a Currently Approved Collection: Application for Advance Permission To Enter as NonimmigrantPDF
83 FR 8500 - Agency Information Collection Activities; Extension, Without Change, of a Currently Approved Collection: Immigrant Petition for Alien WorkersPDF
83 FR 8434 - Submission for OMB Review; Comment RequestPDF
83 FR 8435 - Submission for OMB Review; Comment RequestPDF
83 FR 8437 - Marine Mammals; File No. 21966PDF
83 FR 8435 - Marine Mammals; File No. 21238PDF
83 FR 8490 - National Institute of Neurological Disorders and Stroke; Notice of Closed MeetingsPDF
83 FR 8490 - National Institute of Arthritis and Musculoskeletal and Skin Diseases; Notice of Closed MeetingsPDF
83 FR 8489 - National Cancer Institute; Notice of MeetingPDF
83 FR 8488 - Center for Scientific Review; Notice of Closed MeetingsPDF
83 FR 8490 - Center for Scientific Review; Notice of Closed MeetingsPDF
83 FR 8505 - Foundry Coke From China; Cancellation of Hearing for Full Five-Year ReviewPDF
83 FR 8487 - Women's Preventive Services GuidelinesPDF
83 FR 8576 - Endangered and Threatened Wildlife and Plants; Removing Oenothera avita ssp. eurekensis From the Federal List of Endangered and Threatened Plants, and Reclassification of Swallenia alexandrae From Endangered to ThreatenedPDF
83 FR 8509 - Biweekly Notice; Applications and Amendments to Facility Operating Licenses and Combined Licenses Involving No Significant Hazards ConsiderationsPDF
83 FR 8325 - Airworthiness Directives; The Boeing Company AirplanesPDF
83 FR 8334 - Standard Instrument Approach Procedures, and Takeoff Minimums and Obstacle Departure Procedures; Miscellaneous AmendmentsPDF
83 FR 8331 - Standard Instrument Approach Procedures, and Takeoff Minimums and Obstacle Departure Procedures; Miscellaneous AmendmentsPDF
83 FR 8323 - Airworthiness Directives; Airbus AirplanesPDF
83 FR 8328 - Airworthiness Directives; Fokker Services B.V. AirplanesPDF
83 FR 8506 - Agency Information Collection Activities; Announcement of OMB ApprovalsPDF

Issue

83 39 Tuesday, February 27, 2018 Contents Agency Health Agency for Healthcare Research and Quality NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 8483 2018-03964 Meetings: National Advisory Council for Healthcare Research and Quality, 8482 2018-03926 Requests for Supplemental Evidence and Data Submissions: Home Mechanical Ventilators, 8481-8482 2018-03927 Agriculture Agriculture Department See

Rural Housing Service

Antitrust Division Antitrust Division NOTICES Changes under the National Cooperative Research and Production Act: Medical CBRN Defense Consortium, 8506 2018-03978 ODVA, Inc., 8506 2018-03979 Army Army Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 8459-8460 2018-03903 Centers Medicare Centers for Medicare & Medicaid Services NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 8483-8484 2018-03966 2018-03972 Children Children and Families Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 8484-8485 2018-03976 Civil Rights Civil Rights Commission NOTICES Meetings: Maine Advisory Committee, 8422 2018-03910 Coast Guard Coast Guard RULES Safety Zones: Wando Terminal Crane Movement, Charleston, SC, 8357-8359 2018-03915 NOTICES Meetings: National Maritime Security Advisory Committee, 8492-8493 2018-03912 Commerce Commerce Department See

International Trade Administration

See

National Oceanic and Atmospheric Administration

Commodity Futures Commodity Futures Trading Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 8456-8457 2018-03950 Consumer Product Consumer Product Safety Commission RULES All-Terrain Vehicles, 8336-8340 2018-03904 Hazardous Substances and Articles: Animal Testing Regulations; Corrections, 8340-8342 2018-03916 NOTICES Complaints: Britax Child Safety, Inc., 8457-8459 2018-03934 Defense Department Defense Department See

Army Department

See

Navy Department

NOTICES Charter Renewals: Federal Advisory Committees, 8460-8461 2018-03905 Meetings: Board of Actuaries, 8460 2018-03975 Medicare-Eligible Retiree Health Care Board of Actuaries, 8461 2018-03977
Education Department Education Department PROPOSED RULES Assistance to States for the Education of Children with Disabilities; Preschool Grants for Children with Disabilities, 8396-8399 2018-04102 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: National Blue Ribbon Schools Program, 8462-8463 2018-03914 Employee Benefits Employee Benefits Security Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 8506-8507 2018-03165 Energy Department Energy Department See

Energy Efficiency and Renewable Energy Office

See

Federal Energy Regulatory Commission

NOTICES Exclusive Licenses; Approvals: PQ Corp., 8465 2018-03936 Orders: Final Determination Regarding Energy Efficiency Improvements in ANSI/ASHRAE/IES Standard 90.1-2016: Energy Standard for Buildings, Except Low-Rise Residential Buildings, 8463-8465 2018-03931
Energy Efficiency Energy Efficiency and Renewable Energy Office NOTICES Requests for Information: Expanding Hydropower and Pumped Storage's Contribution to Grid Resiliency and Reliability, 8465-8466 2018-03938 Environmental Protection Environmental Protection Agency RULES Air Quality State Implementation Plans; Approvals and Promulgations: Texas; Approval of Texas Motor Vehicle Rule Revisions, 8359-8362 2018-03974 PROPOSED RULES Air Quality State Implementation Plans; Approvals and Promulgations: California; California Mobile Source Regulations, 8403-8408 2018-03992 Texas; Approval of Texas Motor Vehicle Rule Revisions, 8408 2018-03973 Receipts: Several Pesticide Petitions Filed for Residues of Pesticide Chemicals in or on Various Commodities, 8408-8410 2018-03989 NOTICES Access to Confidential Business Information: Science Applications International Corp., 8479-8480 2018-03988 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Certification and Compliance Requirements for Medium- and Heavy-Duty Engines and Vehicles (Greenhouse Gases and Fuel Economy), 8478-8479 2018-03984 Inquiry to Learn Whether Businesses Assert Business Confidentiality Claims Regarding Waste Import and Export, 8473-8476 2018-03985 Interim Registration Review Decisions and Case Closures for Several Pesticides, 8472-8473 2018-03982 Pesticide Product Registrations: New Active Ingredients, 8470 2018-03981 Registration Review: Draft Human Health and/or Ecological Risk Assessments for Several Pesticides, 8476-8478 2018-03986 Proposed Interim Decisions for Several Pesticides, 8471-8472 2018-03983 Executive Office Executive Office for Immigration Review RULES Expanding the Size of the Board of Immigration Appeals, 8321-8323 2018-03980 Federal Aviation Federal Aviation Administration RULES Airworthiness Directives: Airbus Airplanes, 8323-8325 2018-03495 Fokker Services B.V. Airplanes, 8328-8331 2018-03430 The Boeing Company Airplanes, 8325-8328 2018-03600 Standard Instrument Approach Procedures, and Takeoff Minimums and Obstacle Departure Procedures: Miscellaneous Amendments, 8331-8336 2018-03527 2018-03528 NOTICES Airport Property Releases: Leesburg International Airport, Leesburg, FL, 8564 2018-03953 Intent of Waiver with Respect to Land: Indianapolis International Airport, Indianapolis, IN, 8564-8565 2018-03957 Noise Exposure Maps: Fresno Yosemite International Airport, Fresno, CA, 8565-8566 2018-03955 Requests for Release of Airport Property: Northeast Philadelphia Airport, Philadelphia, PA, 8566 2018-03954 Federal Emergency Federal Emergency Management Agency NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Property Acquisition and Relocation for Open Space, 8493-8495 2018-03949 Meetings: Board of Visitors for the National Fire Academy, 8495-8496 2018-03956 Federal Energy Federal Energy Regulatory Commission NOTICES Combined Filings, 8466-8468 2018-03968 2018-03971 Initial Market-Based Rate Filings Including Requests for Blanket Section 204 Authorizations: Power 52 Inc., 8469 2018-03969 Records Governing Off-the-Record Communications, 8469-8470 2018-03970 Federal Motor Federal Motor Carrier Safety Administration NOTICES Hours of Service of Drivers; Exemption Applications: G4S Secure Solutions (USA), Inc. (G4S), 8571-8572 2018-03944 Parts and Accessories Necessary for Safe Operation; Exemption Applications: Automobile Carriers Conference of the American Trucking Associations, 8569-8571 2018-03943 Qualification of Drivers; Exemption Applications: Epilepsy and Seizure Disorders, 8568-8569 2018-03940 Hearing, 8567-8568 2018-03942 Federal Reserve Federal Reserve System PROPOSED RULES Internal Appeals Process: Material Supervisory Determinations and Policy Statement Regarding the Ombudsman for the Federal Reserve System, 8391-8396 2018-03907 NOTICES Formations of, Acquisitions by, and Mergers of Bank Holding Companies, 8480 2018-03960 Fish Fish and Wildlife Service RULES Endangered and Threatened Species: Removing Oenothera avita ssp. eurekensis from the Federal List of Endangered and Threatened Plants, and Reclassification of Swallenia alexandrae from Endangered to Threatened, 8576-8603 2018-03769 Food and Drug Food and Drug Administration RULES Medical Devices: Hematology and Pathology Devices; Classification of Lynch Syndrome Test Systems, 8355-8357 2018-03924 NOTICES Meetings: Tissue Agnostic Therapies in Oncology: Regulatory Considerations for Orphan Drug Designation; Public Workshop, 8485-8487 2018-03961 Withdrawal of Approval: Wyeth Pharmaceuticals Inc. et al.; 121 New Drug Applications and 161 Abbreviated New Drug Applications; Correction, 8485 2018-03925 Health and Human Health and Human Services Department See

Agency for Healthcare Research and Quality

See

Centers for Medicare & Medicaid Services

See

Children and Families Administration

See

Food and Drug Administration

See

Health Resources and Services Administration

See

National Institutes of Health

See

Substance Abuse and Mental Health Services Administration

Health Resources Health Resources and Services Administration NOTICES Women's Preventive Services Guidelines, 8487-8488 2018-03840 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

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: National Initiative for Cybersecurity Careers and Studies Cybersecurity Training and Education Catalog Collection, 8496-8497 2018-03948
Housing Housing and Urban Development Department NOTICES Environmental Impact Statements; Availability, etc.: Resilient Bridgeport: National Disaster Resilience and Rebuild by Design Projects in the City of Bridgeport, CT, 8501-8504 2018-04042 Institute of Museum and Library Services Institute of Museum and Library Services NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: 2019-2021 IMLS Peer Reviewer Nomination Forms, 8507-8508 2018-03994 Interior Interior Department See

Fish and Wildlife Service

International Trade Adm International Trade Administration NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Rubber Bands from Thailand, the People's Republic of China, and Sri Lanka, 8429-8433 2018-03922 Stainless Steel Bar from Brazil; and Certain Carbon and Alloy Steel Cut-to-Length Plate from Brazil; Correction, 8423 2018-03920 Determinations in Less-Than-Fair-Value Investigations: Polytetrafluoroethylene Resin from India and the People's Republic of China, 8423-8424 2018-03921 Initiation of Less-Than-Fair-Value Investigations: Rubber Bands from the People's Republic of China, Sri Lanka, and Thailand, 8424-8429 2018-03923 Requests for Applications: Appointment to the United States-Mexico Energy Business Council, 8433-8434 2018-03937 International Trade Com International Trade Commission NOTICES Investigations; Determinations, Modifications, and Rulings, etc.: Foundry Coke from China, 8505-8506 2018-03860 Tapered Roller Bearings from Korea, 8504-8505 2018-03902 Justice Department Justice Department See

Antitrust Division

See

Executive Office for Immigration Review

Labor Department Labor Department See

Employee Benefits Security Administration

NASA National Aeronautics and Space Administration NOTICES Meetings: NASA Advisory Council; Science Committee, 8507 2018-03951 National Endowment for the Arts National Endowment for the Arts NOTICES Meetings: Federal Advisory Committee on International Exhibitions, 8508-8509 2018-03913 National Foundation National Foundation on the Arts and the Humanities See

Institute of Museum and Library Services

See

National Endowment for the Arts

National Institute National Institutes of Health NOTICES Meetings: Center for Scientific Review, 8488-8492 2018-03869 2018-03870 National Cancer Institute, 8489-8490 2018-03871 National Institute of Arthritis and Musculoskeletal and Skin Diseases, 8490 2018-03872 National Institute of Neurological Disorders and Stroke, 8490 2018-03873 National Oceanic National Oceanic and Atmospheric Administration RULES Fisheries of the Exclusive Economic Zone off Alaska: Bering Sea and Aleutian Islands; 2018 and 2019 Harvest Specifications for Groundfish, 8365-8390 2018-03918 Magnuson-Stevens Fishery Conservation and Management Act Provisions: Fisheries of the Northeastern United States; Northeast Groundfish Fishery; Fishing Year 2017; Extension of Emergency Removal of Southern Windowpane Accountability Measures, 8362-8365 2018-03899 PROPOSED RULES Endangered and Threatened Species: 90-day Finding on a Petition to List Chinook Salmon in the Upper Klamath-Trinity Rivers Basin, 8410-8414 2018-03906 Fisheries Off West Coast States: Highly Migratory Fisheries; Amendment 4 to Fishery Management Plan for West Coast Highly Migratory Species Fisheries; Revisions to the Biennial Management Cycle, 8414-8416 2018-03963 Requirements of the Vessel Monitoring System Type-Approval, 8416-8417 2018-03945 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 8434-8436 2018-03876 2018-03878 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Permits for Incidental Taking of Endangered or Threatened Species, 8436-8437 2018-03881 Permit Applications: Marine Mammals; File No. 21238, 8435 2018-03874 Marine Mammals; File No. 21966, 8437 2018-03875 Takes of Marine Mammals Incidental to Specified Activities: Cook Inlet Pipeline Cross Inlet Extension Project, 8437-8456 2018-03885 Navy Navy Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 8462 2018-03965 Exclusive Patent Licenses; Approvals: Integrated Composite Construction Systems, LLC., 8462 2018-03932 Nuclear Regulatory Nuclear Regulatory Commission NOTICES Facility Operating and Combined Licenses: Applications and Amendments Involving No Significant Hazards Considerations; Biweekly Notice, 8509-8523 2018-03727 Overseas Overseas Private Investment Corporation NOTICES Meetings; Sunshine Act, 8523-8524 2018-04037 2018-04038 Postal Service Postal Service PROPOSED RULES Changes to Validations for Intelligent Mail Package Barcode, 8399-8403 2018-03947 Rural Housing Service Rural Housing Service NOTICES Grant Proposals: Multi-family Housing Transfer and Prepayment Technical Assistance, 8418-8422 2018-03900 Securities Securities and Exchange Commission RULES Investment Company Liquidity Risk Management Programs: Commission Guidance for In-Kind ETFs, 8342-8354 2018-03917 NOTICES Meetings; Sunshine Act, 8561-8562 2018-04032 Self-Regulatory Organizations; Proposed Rule Changes: Financial Industry Regulatory Authority, Inc., 8524-8538, 8559-8561 2018-03886 2018-03887 2018-03889 2018-03890 2018-03891 2018-03893 MIAX PEARL, LLC, 8538-8554 2018-03894 Nasdaq ISE, LLC, 8554-8556 2018-03888 Nasdaq PHLX LLC, 8557-8558 2018-03892 The Nasdaq Stock Market LLC, 8532 2018-03895 Small Business Small Business Administration NOTICES Meetings: Advisory Committee on Veterans Business Affairs, 8562 2018-03933 Interagency Task Force on Veterans Small Business Development, 8562 2018-03935 State Department State Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Maintenance of Records by Registrants, 8563-8564 2018-03919 Request for Approval of Manufacturing License Agreements, Technical Assistance Agreements, and Other Agreements, 8563 2018-03911 Substance Substance Abuse and Mental Health Services Administration NOTICES Meetings: Center for Substance Abuse Prevention, 8492 2018-03897 Transportation Department Transportation Department See

Federal Aviation Administration

See

Federal Motor Carrier Safety Administration

Treasury Treasury Department See

United States Mint

RULES Import Restrictions Imposed on Certain Archaeological Material from Belize; Extensions, 8354-8355 2018-03946
U.S. Citizenship U.S. Citizenship and Immigration Services NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Application for Advance Permission to Enter as Nonimmigrant, 8498-8499 2018-03880 Immigrant Petition for Alien Workers, 8500-8501 2018-03879 Petition for Amerasian, Widow(er), or Special Immigrant, 8499-8500 2018-03882 Verification Request and Supplement, 8497-8498 2018-03883 Customs U.S. Customs and Border Protection RULES Import Restrictions Imposed on Certain Archaeological Material from Belize; Extensions, 8354-8355 2018-03946 U.S. Mint United States Mint NOTICES Pricing: 2018 San Francisco Mint Silver Reverse Proof Set, 8572 2018-03901 Veteran Affairs Veterans Affairs Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Dependents' Application for VA Education Benefits, 8572-8573 2018-03908 Suspension of Monthly Check, 8573 2018-03909 Separate Parts In This Issue Part II Interior Department, Fish and Wildlife Service, 8576-8603 2018-03769 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 39 Tuesday, February 27, 2018 Rules and Regulations DEPARTMENT OF JUSTICE Executive Office for Immigration Review 8 CFR Part 1003 [Docket No. EOIR 183; A.G. Order No. 4119-2018] RIN 1125-AA79 Expanding the Size of the Board of Immigration Appeals AGENCY:

Executive Office for Immigration Review, Department of Justice.

ACTION:

Final rule.

SUMMARY:

This final rule amends the Executive Office for Immigration Review (EOIR) regulations relating to the organization of the Board of Immigration Appeals (Board) by adding four additional Board member positions, thereby expanding the Board to 21 members.

DATES:

This rule is effective February 27, 2018.

FOR FURTHER INFORMATION CONTACT:

Lauren Alder Reid, Acting Chief of the Immigration Law Division, Office of Policy, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 1902, Falls Church, VA 20530, telephone (703) 305-0289 (not a toll-free call).

SUPPLEMENTARY INFORMATION: I. Current Interim Rule

On June 3, 2015, the Department of Justice (Department) published an interim rule amending 8 CFR 1003.1 to increase the Board of Immigration Appeals (Board) from 15 to 17 members, with a request for comments. 80 FR 31461 (June 3, 2015). As explained in the interim rule, expanding the number of Board members is necessary to accomplish EOIR's commitment to promptly provide Board appellate review of timely filed immigration case appeals. The interim rule provided two primary reasons for increasing the number of Board members from 15 to 17. First, EOIR was managing the largest caseload the immigration court system had ever seen. Second, the Department was in the process of hiring a substantial number of additional immigration judges, which the Department expected would increase the number of appeals filed with the Board.

The Department provided an opportunity for post-promulgation comment even though this was a rule of internal agency organization and therefore notice-and-comment rulemaking was not required. The Department received two comments by the deadline of August 3, 2015. For the reasons set forth below, the Department is finalizing the interim rule amending 8 CFR part 1003, and adding four additional Board members for a total of 21 Board members.

II. Background

EOIR administers the Nation's immigration court system. Generally, cases commence before an immigration judge when the Department of Homeland Security (DHS) files with the immigration court a charging document against an alien. See 8 CFR 1003.14(a). EOIR primarily decides whether foreign nationals whom DHS charges with violating immigration law pursuant to the Immigration and Nationality Act are removable as charged and, if so, whether they should be ordered removed from the United States, or should be granted protection or relief from removal and be permitted to remain in the United States. EOIR's Office of the Chief Immigration Judge administers the adjudications of the immigration judges nationwide.

Decisions of the immigration judges are subject to review by EOIR's appellate body, the Board, which is currently composed of 17 Board members. The Board is the highest administrative tribunal for interpreting and applying U.S. immigration law. The Board's decisions can be reviewed by the Attorney General, as provided in 8 CFR 1003.1(g) and (h). Decisions of the Board and the Attorney General are subject to judicial review in the United States Courts of Appeals.

III. Expansion of Number of Board Members

EOIR's mission is to adjudicate immigration cases by fairly, expeditiously, and uniformly interpreting and administering the Nation's immigration laws. This task includes the initial adjudication of aliens' cases in immigration courts nationwide, as well as appellate review by the Board when appeals are timely filed. In order to more efficiently accomplish the agency's commitment to promptly decide an increasing volume of cases, as well as to review appeals in those cases, this rule serves to finalize the interim rule, with the addition of four additional Board members.1 This rule adopts a revision to the third sentence of 8 CFR 1003.1(a)(1). The remainder of paragraph (a)(1) is unchanged.

1 The Department previously expanded the number of Board members—from 11 to 15 members—on December 7, 2006, when it published in the Federal Register an interim rule amending 8 CFR 1003.1. 71 FR 70855 (Dec. 7, 2006). On June 16, 2008, the Department published a final rule adopting, without change, that interim rule. 73 FR 33875 (June 16, 2008).

Expanding the number of Board members was necessary when the interim rule was published in 2015 because EOIR was experiencing an increased caseload. Since the interim rule's publication, EOIR's caseload has continued to grow; EOIR is currently managing the largest caseload the immigration court system has ever seen. At the end of FY 2016, there were 518,545 total cases pending before the immigration courts, marking an increase of 58,988 cases pending above those at the end of FY 2015. See 2016 EOIR Statistics Yearbook W1.2 As of January 1, 2018, there were 667,292 total cases pending before the immigration courts. This total increase included an increase in the number of pending cases of detained aliens. EOIR's highest priority is the efficient and timely adjudication of detained alien cases, and EOIR requires additional resources to handle the increased caseload.

2 EOIR's FY 2016 Statistics Yearbook, prepared by EOIR's Office of Planning, Analysis, and Statistics, is available at https://www.justice.gov/eoir/page/file/fysb16/download.

The Department is taking steps to address the unprecedented pending caseload. The Department hired 64 additional immigration judges in FY 2017 and continues to hire new immigration judges. The Department expects that, as these additional immigration judges enter on duty, the number of decisions rendered by the immigration judges nationwide will increase, and the number of appeals filed with the Board will increase as a result. The Department is also taking a number of management steps to more efficiently address the pending caseload, which EOIR expects will result in an increase in immigration judge decisions and, in turn, an increase in the flow of appeals to the Board.3

3 Statement of James McHenry, Acting Director, Executive Office for Immigration Review, United States Department of Justice, Before the Subcommittee on Immigration and Border Security, Committee on the Judiciary, United States House of Representatives, November 1, 2017.

Since January 2017, the Board has experienced a steady increase in appeals. For example, the number of appeals increased throughout FY 2017, from 2,618 in October 2016 to 3,035 in September 2017. This caseload is burdensome and, given current trends, may become overwhelming were the Board to maintain 17 members.

The interim rule modified the number of Board members to 17, and requested post-promulgation comment on the proposal to increase the number of Board members in light of the increased caseload. Keeping in mind the goal of maintaining cohesion and the ability to reach consensus, but recognizing the challenges the Board faces in light of its current and anticipated increased caseload, the Department has determined that four additional members should be added to the Board. The Department acknowledges the potential impact of the expansion to 21 members upon the Board's ability to provide coherent direction and to issue precedential decisions, which require approval of a majority of the Board, and will continue to consider means to improve the Board's operations over time. But the interim rule's logic—balancing efficiency with administrability—supports increasing the size of the Board in the final rule to 21. These changes will help support an efficient system of appellate adjudication in light of the increasing caseload.

IV. Public Comments

The interim rule was exempt from the usual requirements of prior notice and comment and a 30-day delay in effective date because, as an internal delegation of authority, it is a rule of management or personnel and relates to a matter of agency organization, procedure, or practice. See 5 U.S.C. 553(a), (b), (d). Nonetheless, when promulgating the interim rule, the Department provided an opportunity for post-promulgation comment. The Department received two comments by the deadline, only one of which was responsive to the rule. The commenter stated that “[e]xpanding the Board of Immigration Appeals (BIA) to 17 members from 15 members is . . . a necessary action as the pending times for appeals has substantially increased as the docket of EOIR has expanded.”

In response, the Department appreciates this expression of support. EOIR has steadily hired new immigration judges, and continues to hire new immigration judges, to adjudicate EOIR's historically large caseload. As the number of immigration judges increases, so does the number of decisions rendered by immigration judges. In turn, the number of appeals filed with the Board also increases. Increasing the number of Board members will assist EOIR in accomplishing its mission of adjudicating appeals in a timely manner.

V. Regulatory Requirements A. Administrative Procedure Act

As this rule is the finalization of an interim final rule, further request for comment is not required. Alternately, comment is unnecessary because this final rule is a rule of management or personnel as well as a rule of agency organization, procedure, or practice. See 5 U.S.C. 553(a)(2), (b)(A). For the same reasons, this rule is not subject to a 30-day delay in effective date. See 5 U.S.C. 553(a)(2), (d).

B. Regulatory Flexibility Act

Under the Regulatory Flexibility Act (RFA), “[w]henever an agency is required by section 553 of [the Administrative Procedure Act], or any other law, to publish general notice of proposed rulemaking for any proposed rule . . . the agency shall prepare and make available for public comment an initial regulatory flexibility analysis.” 5 U.S.C. 603(a); see 5 U.S.C. 604(a). Such analysis is not required when a rule is exempt from notice-and-comment rulemaking under 5 U.S.C. 553(b). Because this is a rule of internal agency organization and therefore is exempt from notice-and-comment rulemaking, no RFA analysis under 5 U.S.C. 603 or 604 is required for this rule.

C. Unfunded Mandates Reform Act of 1995

This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

D. Executive Orders 12866 (Regulatory Planning and Review), 13563 (Improving Regulation and Regulatory Review), and 13771 (Reducing Regulation and Controlling Regulatory Costs)

This rule is limited to agency organization, management, or personnel matters and is therefore not subject to review by the Office of Management and Budget pursuant to section 3(d)(3) of Executive Order 12866, Regulatory Planning and Review. Nevertheless, the Department certifies that this regulation has been drafted in accordance with the principles of Executive Order 12866, section 1(b), and Executive Order 13563. Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits, including consideration of potential economic, environmental, public health, and safety effects; distributive impacts; and equity. The benefits of this rule include providing the Department with an appropriate means of responding to the increased number of appeals to the Board. The public will benefit from the expansion of the number of Board members because such expansion will help EOIR better accomplish its mission of adjudicating cases in an efficient and timely manner. Overall, the benefits provided by the Board's expansion outweigh the costs of employing additional federal employees. Finally, because this rule is one of internal organization, management, or personnel, it is not subject to the requirements of Executive Order 13771.

E. Executive Order 13132—Federalism

This rule will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

F. Executive Order 12988—Civil Justice Reform

This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.

G. Paperwork Reduction Act

The provisions of the Paperwork Reduction Act of 1995, Public Law 104-13, 44 U.S.C. chapter 35, and its implementing regulations, 5 CFR part 1320, do not apply to this final rule because there are no new or revised recordkeeping or reporting requirements.

H. Congressional Review Act

This is not a major rule as defined by 5 U.S.C. 804(2). This action pertains to agency organization, management, and personnel and, accordingly, is not a “rule” as that term is used in 5 U.S.C. 804(3). Therefore, the reports to Congress and the Government Accountability Office specified by 5 U.S.C. 801 are not required.

List of Subjects in 8 CFR Part 1003

Administrative practice and procedure, Aliens, Immigration, Legal services, Organization and functions (Government agencies).

Accordingly, for the reasons stated in the preamble, the interim rule amending 8 CFR part 1003, which was published at 80 FR 31461 on June 3, 2015, is adopted as a final rule, with the following change:

PART 1003—EXECUTIVE OFFICE FOR IMMIGRATION REVIEW 1. The authority citation for part 1003 continues to read as follows: Authority:

5 U.S.C. 301; 6 U.S.C. 521; 8 U.S.C. 1101, 1103, 1154, 1155, 1158, 1182, 1226, 1229, 1229a, 1229b, 1229c, 1231, 1254a, 1255, 1324d, 1330, 1361, 1362; 28 U.S.C. 509, 510, 1746; sec. 2 Reorg. Plan No. 2 of 1950; 3 CFR, 1949-1953 Comp., p. 1002; section 203 of Pub. L. 105-100, 111 Stat. 2196-200; sections 1506 and 1510 of Pub. L. 106-386, 114 Stat. 1527-29, 1531-32; section 1505 of Pub. L. 106-554, 114 Stat. 2763A-326 to -328.

2. Amend § 1003.1 by revising the third sentence of paragraph (a)(1) to read as follows:
§ 1003.1 Organization, jurisdiction, and powers of the Board of Immigration Appeals.

(a)(1) * * * The Board shall consist of 21 members. * * *

Dated: February 20, 2018. Jefferson B. Sessions III, Attorney General.
[FR Doc. 2018-03980 Filed 2-26-18; 8:45 am] BILLING CODE 4410-30-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-9519; Product Identifier 2016-NM-099-AD; Amendment 39-19200; AD 2018-04-05] RIN 2120-AA64 Airworthiness Directives; Airbus Airplanes AGENCY:

Federal Aviation Administration (FAA), Department of Transportation (DOT).

ACTION:

Final rule.

SUMMARY:

We are adopting a new airworthiness directive (AD) for certain Airbus Model A319-112, A319-115, A320-214, A320-232, and A321-211 airplanes. This AD was prompted by in-service experience and further analysis, which showed that the galley 5 without kick-load retainers, was unable to withstand the expected loading during several flight phases or in case of emergency landing. This AD requires modification of galley 5 trolley compartments by adding kick-load retainers. We are issuing this AD to address the unsafe condition on these products.

DATES:

This AD is effective April 3, 2018.

The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of April 3, 2018.

ADDRESSES:

For service information identified in this final rule, contact Airbus, Airworthiness Office—EIAS, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email [email protected]; internet http://www.airbus.com. You may view this referenced service information at the FAA, Transport Standards Branch, 2200 South 216th Street, Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195. It is also available on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-9519.

Examining the AD Docket

You may examine the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-9519; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone 800-647-5527) is Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590.

FOR FURTHER INFORMATION CONTACT:

Sanjay Ralhan, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th Street, Des Moines, WA 98198; telephone 206-231-3223; fax 206-231-3398.

SUPPLEMENTARY INFORMATION: Discussion

We issued a supplemental notice of proposed rulemaking (SNPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Airbus Model A319-112, A319-115, A320-214, A320-232, and A321-211 airplanes. The SNPRM published in the Federal Register on November 9, 2017 (82 FR 52022) (“the SNPRM”). We preceded the SNPRM with a notice of proposed rulemaking (NPRM) that published in the Federal Register on January 3, 2017 (82 FR 50) (“the NPRM”). The NPRM was prompted by in-service experience and further analysis, which showed that the galley 5 without kick-load retainers was unable to withstand the expected loading during several flight phases or in case of an emergency landing. The NPRM proposed to require modification of galley 5 trolley compartments by adding kick-load retainers. The SNPRM proposed to modify the applicability. We are issuing this AD to prevent galley/trolley detachment and collapse into an adjacent cabin aisle or cabin zone, possibly spreading loose galley equipment items, compartment doors, or leaking fluids. These hazards could block an evacuation route and result in injury to crew or passengers.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2016-0040, dated March 2, 2016 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Airbus Model A319-112, A319-115, A320-214, A320-232, and A321-211 airplanes. The MCAI states:

Following in-service experience and further analyses, it was ascertained that the galley 5 without kick load retainers on external position could not withstand the expected loading during several flight phases or in case of emergency landing.

This condition, if not corrected, could lead to galley/trolley detachment and collapse into an adjacent cabin aisle or cabin zone, possibly spreading loose galley equipment items, compartment doors or leaking fluids, blocking an evacuation route, and consequently resulting in injury to crew or passengers.

To address this potential unsafe condition, Airbus issued 6 Service Bulletins (SB) to provide modification instructions for the affected aeroplanes.

For the reasons described above, this [EASA] AD requires modification of galley 5 trolley compartments to install kick load retainers.

You may examine the MCAI in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-9519.

Comments

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

Request To Change the Applicability To Be Based on Galley 5 Part and Serial Number

Etihad Airways (Etihad) requested that the applicability of the proposed AD (in the SNPRM) be changed to list specific galley 5 part numbers and serial numbers. Etihad noted that the same galley 5 part number installed on the airplanes listed in the applicability of the proposed AD (in the SNPRM) was also installed on certain Model A320-232 airplanes under supplemental type certificates (STCs). Etihad noted that the proposed change would help to ensure all affected parts are addressed.

We disagree with the commenter's request. We appreciate Etihad's initiative in attempting to address the unsafe condition on their fleet, including airplanes modified by STCs or other approved installation methods. However, making the requested change would require us to issue another supplemental NPRM, delaying the issuance of a final rule. To delay this action would be inappropriate, since we have determined that an unsafe condition exists and that galley modifications must be made to ensure continued safety. We will consider additional rulemaking to address airplanes modified by STCs. We have not changed this AD in this regard.

Conclusion

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

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

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

Related Service Information Under 1 CFR Part 51

Airbus has issued Service Bulletin A320-25-1B29, dated June 19, 2014; and Service Bulletin A320-25-1B30, dated June 19, 2014. This service information describes procedures for installing kick-load retainers on certain galley 5 trolley compartments. These documents are distinct since they apply to different airplane configurations. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

Costs of Compliance

We estimate that this AD affects 19 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

Estimated Costs Action Labor cost Parts cost Cost per
  • product
  • Cost on U.S. operators
    Modification 2 work-hours × $85 per hour = $170 $0 $170 $3,230
    Authority for This Rulemaking

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

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

    This AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to transport category airplanes to the Director of the System Oversight Division.

    Regulatory Findings

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

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

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

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

    3. Will not affect intrastate aviation in Alaska, and

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

    List of Subjects in 14 CFR Part 39

    Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.

    Adoption of the Amendment

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

    PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority:

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2018-04-05 Airbus: Amendment 39-19200; Docket No. FAA-2016-9519; Product Identifier 2016-NM-099-AD. (a) Effective Date

    This AD is effective April 3, 2018.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to Airbus Model A319-112, A319-115, A320-214, A320-232, and A321-211 airplanes, certificated in any category, manufacturer's serial numbers 1479, 3096, 3693, 3713, 3739, 3791, 3896, 3902, 3907, 3931, 3949, 3969, 4030, 4045, 4049, 4059, 4066, 4077, 4083, 4124, 4146, 4158, 4188, 4198, 4206, 4209, 4218, 4235, 4255, 4264, 4304, 4321, 4371, 4374, 4395, 4411, 4417, 4431, 4485, 4492, 4502, 4528, 4541, 4548, 4592, 4595, 4638, 4651, 4669, 4703, 4724, 4737, 4746, 4770, 4780, 4783, 4826, 4827, 4860, 4863, 4865, 4902, 4934, 4945, 4951, 4952, 4971, 4996, 5023, 5029, 5042, 5088, 5095, 5132, 5159, 5164, 5171, 5175, 5192, 5210, 5227, 5241, 5247, 5251, 5275, 5277, 5297, 5306, 5340, 5343, 5348, 5356, 5366, 5370, 5385, 5387, 5392, 5396, 5400, 5407, 5418, 5427, 5438, 5456, 5458, 5469, 5495, 5517, 5555, 5624, 5674, 5678, 5698, 5699, 5704, 5709, 5714, 5791, 5745, 5753, 5761, 5781, 5786, 5788, 5789, 5798, 5804, 5810, 5821, 5827, 5842, 5874, 5882, 5889, 5903, 5907, 5916, 5924, 5958, 5984, 5994, 6000, 6004, 6054, 6080, 6107, 6166, 6176, 6234, 6266, 6293, 6335, 6344, 6365, 6430, and 6444.

    (d) Subject

    Air Transport Association (ATA) of America Code 25, Equipment/furnishings.

    (e) Reason

    This AD was prompted by in-service experience and further analysis, which showed that the galley 5 without kick-load retainers was unable to withstand the expected loading during several flight phases or in case of emergency landing. We are issuing this AD to prevent galley/trolley detachment and collapse into an adjacent cabin aisle or cabin zone, possibly spreading loose galley equipment items, compartment doors, or leaking fluids. These hazards could block an evacuation route and result in injury to crew or passengers.

    (f) Compliance

    Comply with this AD within the compliance times specified, unless already done.

    (g) Install Kick-Load Retainers

    Within 12 months after the effective date of this AD, install kick-load retainers on the galley 5 trolley compartments as specified in paragraph (g)(1), (g)(2), or (g)(3) of this AD, as applicable. For airplanes on which galley 5 is not installed, no action is required by this paragraph.

    (1) For Airbus Model A319-115 airplanes, manufacturer's serial numbers 5678, 5698, 5704, 5745, 5753, 5761, 5781, 5786, 5788, 5789, 5798, 5810, 5827, and 5842, do the installation in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320-25-1B29, dated June 19, 2014.

    (2) For Airbus Model A320-232 airplanes, manufacturer's serial numbers 5458, 5517, 5624, and 5804, do the installation in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320-25-1B30, dated June 19, 2014.

    (3) For airplanes not identified in paragraph (g)(1) or (g)(2) of this AD, do the installation using a method approved by the Manager, International Section, Transport Standards Branch, FAA; or the European Aviation Safety Agency (EASA); or Airbus's EASA Design Organization Approval (DOA). If approved by the DOA, the approval must include the DOA-authorized signature

    (h) Other FAA AD Provisions

    The following provisions also apply to this AD:

    (1) Alternative Methods of Compliance (AMOCs): The Manager, International Section, Transport Standards Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the International Section, send it to the attention of the person identified in paragraph (i)(2) of this AD. Information may be emailed to: [email protected] Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.

    (2) Contacting the Manufacturer: For any requirement in this AD to obtain corrective actions from a manufacturer, the action must be accomplished using a method approved by the Manager, International Section, Transport Standards Branch, FAA; or EASA; or Airbus's EASA Design Organization Approval (DOA). If approved by the DOA, the approval must include the DOA-authorized signature.

    (i) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2016-0040, dated March 2, 2016, for related information. This MCAI may be found in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-9519.

    (2) For more information about this AD, contact Sanjay Ralhan, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th Street, Des Moines, WA 98198; telephone 206-231-3223; fax 206-231-3398.

    (j) Material Incorporated by Reference

    (1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.

    (2) You must use this service information as applicable to do the actions required by this AD, unless this AD specifies otherwise.

    (i) Airbus Service Bulletin A320-25-1B29, dated June 19, 2014.

    (ii) Airbus Service Bulletin A320-25-1B30, dated June 19, 2014.

    (3) For service information identified in this AD, contact Airbus, Airworthiness Office—EIAS, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email [email protected]; internet http://www.airbus.com.

    (4) You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th Street, Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.

    (5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal-register/cfr/ibr-locations.html.

    Issued in Des Moines, Washington, on February 9, 2018. Michael Kaszycki, Acting Director, System Oversight Division, Aircraft Certification Service.
    [FR Doc. 2018-03495 Filed 2-26-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2017-0766; Product Identifier 2017-NM-046-AD; Amendment 39-19203; AD 2018-04-08] RIN 2120-AA64 Airworthiness Directives; The Boeing Company Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    We are adopting a new airworthiness directive (AD) for all The Boeing Company Model 737-100, -200, -200C, -300, -400, and -500 series airplanes. This AD was prompted by an evaluation by the design approval holder (DAH) indicating that the gore web lap splices of the aft pressure bulkhead are subject to widespread fatigue damage (WFD). This AD requires repetitive inspections of the gore webs, gore web lap splices, and repair webs, as applicable, of the aft pressure bulkhead, and applicable on-condition actions. We are issuing this AD to address the unsafe condition on these products.

    DATES:

    This AD is effective April 3, 2018.

    The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of April 3, 2018.

    ADDRESSES:

    For service information identified in this final rule, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; telephone 562-797-1717; internet https://www.myboeingfleet.com. You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195. It is also available on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-0766.

    Examining the AD Docket

    You may examine the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-0766; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this final rule, the regulatory evaluation, any comments received, and other information. The address for the Docket Office (phone: 800-647-5527) is Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590.

    FOR FURTHER INFORMATION CONTACT:

    George Garrido, Aerospace Engineer, Airframe Section, FAA, Los Angeles ACO Branch, 3960 Paramount Boulevard, Lakewood, CA 90712-4137; phone: 562-627-5232; fax: 562-627-5210; email: [email protected]

    SUPPLEMENTARY INFORMATION: Discussion

    We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all The Boeing Company Model 737-100, -200, -200C, -300, -400, and -500 series airplanes. The NPRM published in the Federal Register on August 11, 2017 (82 FR 37546). The NPRM was prompted by an evaluation by the DAH indicating that the gore web lap splices of the aft pressure bulkhead are subject to WFD. The NPRM proposed to require repetitive inspections of the gore webs, gore web lap splices, and repair webs, as applicable, of the aft pressure bulkhead, and applicable on-condition actions.

    We are issuing this AD to detect and correct cracking in the gore webs, gore web lap splices, and repair webs of the aft pressure bulkhead, which could result in possible rapid decompression and loss of structural integrity.

    Comments

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

    Effect of Winglets on Accomplishment of the Proposed Actions

    Aviation Partners Boeing stated that accomplishing the Supplemental Type Certificate (STC) ST01219SE does not affect the actions specified in the NPRM.

    We concur with the commenter. We have redesignated paragraph (c) of the proposed AD as paragraph (c)(1) of this AD and added paragraph (c)(2) to this AD to state that installation of STC ST01219SE does not affect the ability to accomplish the actions required by this AD. Therefore, for airplanes on which STC ST01219SE is installed, a “change in product” alternative method of compliance (AMOC) approval request is not necessary to comply with the requirements of 14 CFR 39.17.

    Request To Clarify “Related AD” Section

    Boeing recommended that a statement be added to the “Related AD” section of the NPRM to provide clarification of the effect of the proposed AD on the requirements of paragraph (o) of AD 2012-18-13 R1, Amendment 39-17429 (78 FR 27020, May 9, 2013) (“AD 2012-18-13 R1”). Boeing asserted that the “Related AD” section could be misinterpreted to imply that the inspections required by the proposed AD are in addition to the requirements of paragraph (o) of AD 2012-18-13 R1.

    We agree with the commenter's rationale, but the “Related AD” section is not included in this final rule. Therefore, no change has been made.

    Request To Address the Termination of AD 2012-18-13 R1

    Boeing requested a clarification that actions required by the proposed AD terminate the requirements of paragraph (o) of AD 2012-18-13 R1. Boeing asserted that the actions of Boeing Alert Service Bulletin 737-53A1355, dated March 10, 2017, supersede the actions of Boeing Alert Service Bulletin 737-53A1214, Revision 4, dated December 16, 2011, which are mandated by paragraph (o) of AD 2012-18-13 R1.

    All Nippon Airways (ANA) also requested clarification regarding termination of the requirements of paragraph (o) of AD 2012-18-13 R1. ANA stated that, because the compliance time is changed to “after the effective date of this AD” in the proposed AD, the inspections and corrective actions required by paragraph (o) of AD 2012-18-13 R1 may be terminated as long as the inspections for Zone 1, as specified in Boeing Alert Service Bulletin 737-53A1355, dated March 10, 2017, have been done within the changed compliance time.

    We agree with the requests for clarification. We have added the requested terminating action information as paragraph (i) of this AD and redesignated subsequent paragraphs.

    Request To Clarify the Zone 2 Definition

    Boeing requested a clarification of the definition of Zone 2 in the “Related Service Information under 1 CFR part 51” paragraph of the NPRM. Boeing observed that the definition given could be misleading because it does not specify that Zone 2 contains only the gore web lap splices outside the apex area.

    We agree and have added the phrase “outside the apex area” to the specified paragraph of this final rule.

    Clarification of Compliance Exception

    We have revised the compliance exception in paragraph (j)(1) of this AD to clarify that where Boeing Alert Service Bulletin 737-53A1355, dated March 10, 2017, uses the phrase “the original issue date of this service bulletin,” this AD requires using “the effective date of this AD.”

    Conclusion

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

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

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

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

    Related Service Information Under 1 CFR Part 51

    We reviewed Boeing Alert Service Bulletin 737-53A1355, dated March 10, 2017. The service information describes procedures for repetitive inspections of the gore web in Zone 1 (i.e., inspections around fastener locations in the gore web lap splices and around fastener locations in the apex area outside the gore web lap splices) and gore web lap splices in Zone 2 (i.e., inspections around fastener locations in the gore web lap splices outside the apex area) of the aft pressure bulkhead, and applicable on-condition actions. The service information also describes, for airplanes with an existing single gore web repair, procedures for repetitive inspections of the gore web (i.e., inspections around fastener locations in the gore web lap splices) and repair webs (i.e., inspections around fastener locations in the gore web lap splices and around fastener locations in the apex area outside the gore web lap splices); and, for airplanes with an existing all gore web repair, procedures for repetitive inspections of the repair webs (i.e., inspections around fastener locations in the repair gore web lap splices and around fastener locations in the apex area outside the repair gore web lap splices); and procedures for applicable on-condition actions. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    Costs of Compliance

    We estimate that this AD affects 281 airplanes of U.S. registry. We estimate the following costs to comply with this AD:

    Estimated Costs Action Labor cost Parts cost Cost per product Cost on U.S. operators Inspection 46 work-hours × $85 per hour = $3,910 per inspection cycle $0 $3,910 per inspection cycle $1,098,710 per inspection cycle.

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

    On-Condition Costs Action Labor cost Parts cost Cost per
  • product
  • Inspection of previous single gore web repair 8 work-hours × $85 per hour = $680 $0 $680 Inspection of previous all gore web repair 10 work-hours × $85 per hour = $850 0 850

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

    Authority for This Rulemaking

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

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

    This AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to transport category airplanes to the Director of the System Oversight Division.

    Regulatory Findings

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

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

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

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

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

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

    List of Subjects in 14 CFR Part 39

    Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.

    Adoption of the Amendment

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

    PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority:

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2018-04-08 The Boeing Company: Amendment 39-19203; Docket No. FAA-2017-0766; Product Identifier 2017-NM-046-AD. (a) Effective Date

    This AD is effective April 3, 2018.

    (b) Affected ADs

    This AD affects AD 2012-18-13 R1, Amendment 39-17429 (78 FR 27020, May 9, 2013) (“AD 2012-18-13 R1”).

    (c) Applicability

    (1) This AD applies to all The Boeing Company Model 737-100, -200, -200C, -300, -400, and -500 series airplanes, certificated in any category.

    (2) Installation of Supplemental Type Certificate (STC) ST01219SE (http://rgl.faa.gov/Regulatory_and_Guidance_Library/rgstc.nsf/0/EBD1CEC7B301293E86257CB30045557A?OpenDocument&Highlight=st01219se) does not affect the ability to accomplish the actions required by this AD. Therefore, for airplanes on which STC ST01219SE is installed, a “change in product” alternative method of compliance (AMOC) approval request is not necessary to comply with the requirements of 14 CFR 39.17.

    (d) Subject

    Air Transport Association (ATA) of America Code 53, Fuselage.

    (e) Unsafe Condition

    This AD was prompted by an evaluation by the design approval holder (DAH) indicating that the gore web lap splices of the aft pressure bulkhead are subject to widespread fatigue damage (WFD). We are issuing this AD to detect and correct cracking in the gore webs, gore web lap splices, and repair webs of the aft pressure bulkhead, which could result in possible rapid decompression and loss of structural integrity.

    (f) Compliance

    Comply with this AD within the compliance times specified, unless already done.

    (g) Required Actions for Group 1 Airplanes

    For airplanes identified as Group 1 in Boeing Alert Service Bulletin 737-53A1355, dated March 10, 2017: Within 120 days after the effective date of this AD, inspect the airplane, using a method approved in accordance with the procedures specified in paragraph (k) of this AD.

    (h) Actions Required for Compliance

    Except as required by paragraph (j) of this AD: For airplanes identified as Group 2 in Boeing Alert Service Bulletin 737-53A1355, dated March 10, 2017, at the applicable times specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1355, dated March 10, 2017, do all applicable actions identified as required for compliance (“RC”) in, and in accordance with, the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1355, dated March 10, 2017.

    (i) Termination of Requirements of Paragraph (o) of AD 2012-18-13 R1

    Accomplishment of the initial inspection for Zone 1, defined in Boeing Alert Service Bulletin 737-53A1355, dated March 10, 2017, and required by paragraph (h) of this AD terminates the requirements of paragraph (o) of AD 2012-18-13 R1.

    (j) Exceptions to Service Information Specifications

    (1) For purposes of determining compliance with the requirements of this AD: Where Boeing Alert Service Bulletin 737-53A1355, dated March 10, 2017, uses the phrase “the original issue date of this service bulletin,” this AD requires using “the effective date of this AD.”

    (2) Although Boeing Alert Service Bulletin 737-53A1355, dated March 10, 2017, specifies to contact Boeing for repair instructions, and specifies that action as “RC” (Required for Compliance), this AD requires repair before further flight using a method approved in accordance with the procedures specified in paragraph (k) of this AD.

    (k) Alternative Methods of Compliance (AMOCs)

    (1) The Manager, Los Angeles ACO Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the certification office, send it to the attention of the person identified in paragraph (l) of this AD. Information may be emailed to: [email protected]

    (2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.

    (3) An AMOC that provides an acceptable level of safety may be used for any repair, modification, or alteration required by this AD if it is approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, Los Angeles ACO Branch, to make those findings. To be approved, the repair method, modification deviation, or alteration deviation must meet the certification basis of the airplane, and the approval must specifically refer to this AD.

    (4) Except as required by paragraph (j)(2) of this AD: For service information that contains steps that are labeled as Required for Compliance (RC), the provisions of paragraphs (k)(4)(i) and (k)(4)(ii) of this AD apply.

    (i) The steps labeled as RC, including substeps under an RC step and any figures identified in an RC step, must be done to comply with the AD. If a step or substep is labeled “RC Exempt,” then the RC requirement is removed from that step or substep. An AMOC is required for any deviations to RC steps, including substeps and identified figures.

    (ii) Steps not labeled as RC may be deviated from using accepted methods in accordance with the operator's maintenance or inspection program without obtaining approval of an AMOC, provided the RC steps, including substeps and identified figures, can still be done as specified, and the airplane can be put back in an airworthy condition.

    (l) Related Information

    For more information about this AD, contact George Garrido, Aerospace Engineer, Airframe Section, FAA, Los Angeles ACO Branch, 3960 Paramount Boulevard, Lakewood, CA 90712-4137; phone: 562-627-5232; fax: 562-627-5210; email: [email protected]

    (m) Material Incorporated by Reference

    (1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.

    (2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.

    (i) Boeing Alert Service Bulletin 737-53A1355, dated March 10, 2017.

    (ii) Reserved.

    (3) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; telephone 562-797-1717; internet https://www.myboeingfleet.com.

    (4) You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.

    (5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal-register/cfr/ibr-locations.html.

    Issued in Renton, Washington, on February 14, 2018. Michael Kaszycki, Acting Director, System Oversight Division, Aircraft Certification Service.
    [FR Doc. 2018-03600 Filed 2-26-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-9435; Product Identifier 2016-NM-108-AD; Amendment 39-18830; AD 2017-06-06] RIN 2120-AA64 Airworthiness Directives; Fokker Services B.V. Airplanes AGENCY:

    Federal Aviation Administration (FAA), Department of Transportation (DOT).

    ACTION:

    Final rule.

    SUMMARY:

    We are superseding Airworthiness Directive (AD) 2012-22-15, which applied to all Fokker Services B.V. Model F28 Mark 0070 and Mark 0100 airplanes. AD 2012-22-15 required revising the maintenance program to incorporate the limitations, tasks, thresholds, and intervals specified in certain revised Fokker maintenance review board (MRB) documents. This new AD requires revising the maintenance or inspection program, as applicable, to incorporate new maintenance requirements and airworthiness limitations. This AD was prompted by new and more restrictive airworthiness limitations. We are issuing this AD to address the unsafe condition on these products.

    DATES:

    This AD is effective April 3, 2018.

    The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of April 3, 2018.

    The Director of the Federal Register approved the incorporation by reference of a certain other publication listed in this AD as of December 20, 2012 (77 FR 68063, November 15, 2012).

    ADDRESSES:

    For service information identified in this final rule, contact Fokker Services B.V., Technical Services Dept., P.O. Box 1357, 2130 EL Hoofddorp, the Netherlands; telephone: +31 (0)88-6280-350; fax: +31 (0)88-6280-111; email: [email protected]; internet http://www.myfokkerfleet.com. You may view this referenced service information at the FAA, Transport Standards Branch, 1601 Lind Avenue SW, Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-9435.

    Examining the AD Docket

    You may examine the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-9435; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The address for the Docket Office (telephone 800-647-5527) is Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590.

    FOR FURTHER INFORMATION CONTACT:

    Tom Rodriguez, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 1601 Lind Avenue SW, Renton, WA 98057-3356; telephone 425-227-1137; fax 425-227-1149.

    SUPPLEMENTARY INFORMATION: Discussion

    We issued a supplemental notice of proposed rulemaking (SNPRM) to amend 14 CFR part 39 to supersede AD 2012-22-15, Amendment 39-17252 (77 FR 68063, November 15, 2012) (“AD 2012-22-15”). AD 2012-22-15 applied to all Fokker Services B.V. Model F28 Mark 0070 and Mark 0100 airplanes. The SNPRM published in the Federal Register on October 19, 2017 (82 FR 48671) (“the SNPRM”). We preceded the SNPRM with a notice of proposed rulemaking (NPRM) that published in the Federal Register on December 16, 2016 (81 FR 91068) (“the NPRM”). The NPRM was prompted by new and more restrictive airworthiness limitations. The NPRM proposed to revise the maintenance or inspection program, as applicable, to incorporate the new and more restrictive airworthiness limitations. The SNPRM proposed to require revising the maintenance or inspection program, as applicable, to incorporate new and more restrictive airworthiness limitations that were issued since the NPRM was released. We are issuing this AD to prevent reduced structural integrity of the airplane.

    The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive AD 2017-0095, dated May 30, 2017 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Fokker Services B.V. Model F28 Mark 0070 and Mark 0100 airplanes. The MCAI states:

    Fokker Services Engineering Report SE-623 contains the Airworthiness Limitation Items (ALIs) and Safe Life Items (SLIs). This report is Part 2 of the Airworthiness Limitations Section (ALS Part 2) of the Instructions for Continued Airworthiness, referred to in Section 06, Appendix 1, of the Fokker 70/100 Maintenance Review Board document.

    The complete ALS consists of:

    Part 1—Report SE-473, Certification Maintenance Requirements (CMRs)—ref. EASA AD 2015-0027 [which corresponds to FAA AD 2016-11-22, Amendment 39-18549 (81 FR 36438, June 7, 2016)],

    Part 2—Report SE-623, ALIs and SLIs—ref. EASA AD 2016-0125 [which corresponds to certain requirements in FAA AD 2012-22-15], and

    Part 3—Report SE-672, Fuel ALIs and CDCCLs—ref. EASA AD 2015-0032 [which corresponds to FAA AD 2016-11-15, Amendment 39-18542 (81 FR 36447, June 7, 2016)].

    The instructions contained in those reports have been identified as mandatory actions for continued airworthiness. Failure to accomplish these actions could result in an unsafe condition.

    EASA previously issued AD 2016-0125, requiring the actions described in ALS Part 2, Report SE-623 at issue 15 and 16.

    Since that AD was issued, Fokker Services published issue 17 of Report SE-623, containing new and/or more restrictive maintenance tasks.

    For the reasons described above, this [EASA] AD retains the requirements of AD 2016-0125, which is superseded, and requires implementation of the maintenance actions as specified in ALS Part 2 of the Instructions for Continued Airworthiness, Fokker Services Engineering Report SE-623 at issue 17 (hereafter referred to as “ALS Part 2” in this [EASA] AD).

    You may examine the MCAI in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-9435.

    Comments

    We gave the public the opportunity to participate in developing this AD. We received no comments on the SNPRM or on the determination of the cost to the public.

    Conclusion

    We reviewed the available data and determined that air safety and the public interest require adopting this AD as proposed except for minor editorial changes. We have determined that these minor changes:

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

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

    Related Service Information Under 1 CFR Part 51

    Fokker Services B.V. has issued Engineering Report SE-623, “Fokker 70/100 ALI's and SLI's,” Issue 17, issued April 26, 2017. The service information describes new and more restrictive airworthiness limitations. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES.

    Costs of Compliance

    We estimate that this AD affects 15 airplanes of U.S. registry.

    The actions required by AD 2012-22-15, and retained in this AD, take about 1 work-hour per product, at an average labor rate of $85 per work-hour. Based on these figures, the estimated cost of the actions that are required by AD 2012-22-15 is $85 per product.

    We also estimate that it would take about 1 work-hour per product to comply with the new basic requirements of this AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of this AD on U.S. operators to be $1,275, or $85 per product.

    Authority for This Rulemaking

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

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

    This AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to transport category airplanes to the Director of the System Oversight Division.

    Regulatory Findings

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

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

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

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

    3. Will not affect intrastate aviation in Alaska; and

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

    List of Subjects in 14 CFR Part 39

    Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.

    Adoption of the Amendment

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

    PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority:

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by removing Airworthiness Directive 2012-22-15, Amendment 39-17252 (77 FR 68063, November 15, 2012), and adding the following new AD. 2017-06-06 Fokker Services B.V: Amendment 39-18830; Docket No. FAA-2016-9435; Product Identifier 2016-NM-108-AD. (a) Effective Date

    This AD is effective April 3, 2018.

    (b) Affected ADs

    (1) This AD replaces AD 2012-22-15, Amendment 39-17252 (77 FR 68063, November 15, 2012) (“AD 2012-22-15”).

    (2) This AD affects AD 2012-12-07, Amendment 39-17087 (77 FR 37788, June 25, 2012) (“AD 2012-12-07”).

    (3) This AD affects AD 2008-06-20 R1, Amendment 39-16089 (74 FR 61018, November 23, 2009) (“AD 2008-06-20 R1”).

    (c) Applicability

    This AD applies to Fokker Services B.V. Model F28 Mark 0070 and Mark 0100 airplanes, certificated in any category, all serial numbers.

    (d) Subject

    Air Transport Association (ATA) of America Code 05, Time Limits/Maintenance Checks.

    (e) Reason

    This AD was prompted by a revision of an airworthiness limitations items (ALI) document, which introduces new and more restrictive maintenance requirements and airworthiness limitations. We are issuing this AD to prevent reduced structural integrity of the airplane.

    (f) Compliance

    Comply with this AD within the compliance times specified, unless already done.

    (g) Retained Maintenance Program Revision, with Revised Compliance Language

    This paragraph restates the requirements of paragraph (i) of AD 2012-22-15, with revised compliance language. Within 3 months after December 20, 2012 (the effective date of AD 2012-22-15), revise the maintenance program to incorporate the airworthiness limitations specified in Fokker Report SE-623, “Fokker 70/100 Airworthiness Limitation Items and Safe Life Items,” Issue 8, released March 17, 2011. For all tasks and retirement lives identified in Fokker Report SE-623, “Fokker 70/100 Airworthiness Limitation Items and Safe Life Items,” Issue 8, released March 17, 2011, the initial compliance times start from the later of the times specified in paragraphs (g)(1) and (g)(2) of this AD, and the repetitive inspections must be accomplished thereafter at the applicable interval specified in Fokker Report SE-623, “Fokker 70/100 Airworthiness Limitation Items and Safe Life Items,” Issue 8, released March 17, 2011. Doing the revision required by paragraph (k) of this AD terminates the requirements of this paragraph.

    (1) Within 3 months after December 20, 2012 (the effective date of AD 2012-22-15).

    (2) At the time specified in Fokker Report SE-623, “Fokker 70/100 Airworthiness Limitation Items and Safe Life Items,” Issue 8, released March 17, 2011.

    (h) Retained Corrective Actions, With Specific Delegation Approval Language

    This paragraph restates the requirements of paragraph (j) of AD 2012-22-15, with specific delegation approval language. If any discrepancy, as defined in Fokker Report SE-623, “Fokker 70/100 Airworthiness Limitation Items and Safe Life Items,” Issue 8, released March 17, 2011, is found during accomplishment of any task specified in Fokker Report SE-623, “Fokker 70/100 Airworthiness Limitation Items and Safe Life Items,” Issue 8, released March 17, 2011: Within the applicable compliance time specified in Fokker Report SE-623, “Fokker 70/100 Airworthiness Limitation Items and Safe Life Items,” Issue 8, released March 17, 2011, accomplish the applicable corrective actions in accordance with Fokker Report SE-623, “Fokker 70/100 Airworthiness Limitation Items and Safe Life Items,” Issue 8, released March 17, 2011, except as required by paragraphs (h)(1) and (h)(2) of this AD.

    (1) If no compliance time is identified in Fokker Report SE-623, “Fokker 70/100 Airworthiness Limitation Items and Safe Life Items,” Issue 8, released March 17, 2011, accomplish the applicable corrective actions before further flight.

    (2) If any discrepancy is found and there is no corrective action specified in Fokker Report SE-623, “Fokker 70/100 Airworthiness Limitation Items and Safe Life Items,” Issue 8, released March 17, 2011: Before further flight, contact the Manager, International Section, Transport Standards Branch, FAA; or the European Aviation Safety Agency (EASA); or Fokker B.V. Services' EASA Design Organization Approval (DOA); for approved corrective actions, and accomplish those actions before further flight.

    (i) Retained “No Alternative Actions or Intervals,” With a New Exception

    This paragraph restates the requirements of paragraph (k) of AD 2012-22-15, with a new exception. Except as required by paragraph (k) of this AD, after accomplishing the revision required by paragraph (g) of this AD, no alternative actions (e.g., inspections) or intervals may be used unless the actions or intervals are approved as an alternative method of compliance (AMOC) in accordance with the procedures specified in paragraph (m)(1) of this AD.

    (j) Retained Method of Compliance With AD 2008-06-20 R1, With Revised Compliance Language

    This paragraph restates the terminating action specified in paragraph (m) of AD 2012-22-15, with revised compliance language. Accomplishing the actions specified in paragraph (g) of this AD terminates the requirements of paragraphs (f)(1) through (f)(5) of AD 2008-06-20 R1.

    (k) New Requirement of This AD: Maintenance or Inspection Program Revision

    Within 30 days of the effective date of this AD, revise the maintenance or inspection program, as applicable, to incorporate the airworthiness limitations specified in Fokker Services B.V. Engineering Report SE-623, “Fokker 70/100 ALI's and SLI's,” Issue 17, issued April 26, 2017. Accomplishing the revision required by this paragraph terminates the requirements of paragraph (g) of this AD. Accomplishing the revision required by this paragraph also terminates the requirements of paragraph (g) of AD 2012-12-07.

    (1) The initial compliance times for the tasks specified in Fokker Services B.V. Engineering Report SE-623, “Fokker 70/100 ALI's and SLI's,” Issue 17, issued April 26, 2017, are at the later of the applicable compliance times specified in Fokker Services B.V. Engineering Report SE-623, “Fokker 70/100 ALI's and SLI's,” Issue 17, issued April 26, 2017, or within 30 days after the effective date of this AD, whichever is later.

    (2) If any discrepancy is found, before further flight, repair using a method approved by the Manager, International Section, Transport Standards Branch, FAA; or the EASA; or Fokker B.V. Service's EASA DOA. If approved by the DOA, the approval must include the DOA-authorized signature.

    (l) No Alternative Actions or Intervals

    After the maintenance or inspection program, as applicable, has been revised as required by paragraph (k) of this AD, no alternative actions (e.g., inspections) or intervals may be used unless the actions or intervals are approved as an AMOC in accordance with the procedures specified in paragraph (m)(1) of this AD.

    (m) Other FAA AD Provisions

    The following provisions also apply to this AD:

    (1) Alternative Methods of Compliance (AMOCs): The Manager, International Section, Transport Standards Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the International Section, send it to the attention of the person identified in paragraph (n)(2) of this AD. Information may be emailed to: [email protected] Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.

    (2) Contacting the Manufacturer: As of the effective date of this AD, for any requirement in this AD to obtain corrective actions from a manufacturer, the action must be accomplished using a method approved by the Manager, International Section, Transport Standards Branch, FAA; or EASA; or Fokker B.V. Services' EASA DOA. If approved by the DOA, the approval must include the DOA-authorized signature.

    (n) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive AD 2017-0095, dated May 30, 2017, for related information. This MCAI may be found in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-9435.

    (2) For more information about this AD, contact Tom Rodriguez, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 1601 Lind Avenue SW, Renton, WA 98057-3356; telephone 425-227-1137; fax 425-227-1149.

    (o) Material Incorporated by Reference

    (1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.

    (2) You must use this service information as applicable to do the actions required by this AD, unless this AD specifies otherwise.

    (3) The following service information was approved for IBR on April 3, 2018.

    (i) Fokker Services B.V. Engineering Report SE-623, “Fokker 70/100 ALI's and SLI's,” Issue 17, issued April 26, 2017.

    (ii) Reserved.

    (4) The following service information was approved for IBR on December 20, 2012 (77 FR 68063, November 15, 2012).

    (i) Fokker Report SE-623, “Fokker 70/100 Airworthiness Limitation Items and Safe Life Items,” Issue 8, released March 17, 2011.

    (ii) Reserved.

    (5) For service information identified in this AD, contact Fokker Services B.V., Technical Services Dept., P.O. Box 1357, 2130 EL Hoofddorp, the Netherlands; telephone: +31 (0)88-6280-350; fax: +31 (0)88-6280-111; email: [email protected]; internet http://www.myfokkerfleet.com.

    (6) You may view this service information at the FAA, Transport Standards Branch, 1601 Lind Avenue SW, Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

    (7) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal-register/cfr/ibr-locations.html.

    Issued in Renton, Washington, on February 9, 2018. Michael Kaszycki, Acting Director, System Oversight Division, Aircraft Certification Service.
    [FR Doc. 2018-03430 Filed 2-26-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 97 [Docket No. 31180; Amdt. No. 3788] Standard Instrument Approach Procedures, and Takeoff Minimums and Obstacle Departure Procedures; Miscellaneous Amendments AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    This rule amends, suspends, or removes Standard Instrument Approach Procedures (SIAPs) and associated Takeoff Minimums and Obstacle Departure Procedures for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, adding new obstacles, or changing air traffic requirements. These changes are designed to provide for the safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.

    DATES:

    This rule is effective February 27, 2018. The compliance date for each SIAP, associated Takeoff Minimums, and ODP is specified in the amendatory provisions.

    The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of February 27, 2018.

    ADDRESSES:

    Availability of matter incorporated by reference in the amendment is as follows:

    For Examination

    1. U.S. Department of Transportation, Docket Ops-M30, 1200 New Jersey Avenue SE, West Bldg., Ground Floor, Washington, DC 20590-0001;

    2. The FAA Air Traffic Organization Service Area in which the affected airport is located;

    3. The office of Aeronautical Navigation Products, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 or,

    4. The National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.

    Availability

    All SIAPs and Takeoff Minimums and ODPs are available online free of charge. Visit the National Flight Data Center online at nfdc.faa.gov to register. Additionally, individual SIAP and Takeoff Minimums and ODP copies may be obtained from the FAA Air Traffic Organization Service Area in which the affected airport is located.

    FOR FURTHER INFORMATION CONTACT:

    Thomas J. Nichols, Flight Procedure Standards Branch (AFS-420) Flight Technologies and Procedures Division, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 (Mail Address: P.O. Box 25082, Oklahoma City, OK 73125), telephone: (405) 954-4164.

    SUPPLEMENTARY INFORMATION:

    This rule amends Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) by amending the referenced SIAPs. The complete regulatory description of each SIAP is listed on the appropriate FAA Form 8260, as modified by the National Flight Data Center (NFDC)/Permanent Notice to Airmen (P-NOTAM), and is incorporated by reference under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR 97.20. The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, but refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP contained on FAA form documents is unnecessary.

    This amendment provides the affected CFR sections, and specifies the SIAPs and Takeoff Minimums and ODPs with their applicable effective dates. This amendment also identifies the airport and its location, the procedure and the amendment number.

    Availability and Summary of Material Incorporated by Reference

    The material incorporated by reference is publicly available as listed in the ADDRESSES section.

    The material incorporated by reference describes SIAPs, Takeoff Minimums and ODPs as identified in the amendatory language for part 97 of this final rule.

    The Rule

    This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP and Takeoff Minimums and ODP as amended in the transmittal. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained for each SIAP and Takeoff Minimums and ODP as modified by FDC permanent NOTAMs.

    The SIAPs and Takeoff Minimums and ODPs, as modified by FDC permanent NOTAM, and contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these changes to SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied only to specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a FDC NOTAM as an emergency action of immediate flight safety relating directly to published aeronautical charts.

    The circumstances that created the need for these SIAP and Takeoff Minimums and ODP amendments require making them effective in less than 30 days.

    Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C. 553(d), good cause exists for making these SIAPs effective in less than 30 days.

    The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

    List of Subjects in 14 CFR Part 97

    Air Traffic Control, Airports, Incorporation by reference, Navigation (Air).

    Issued in Washington, DC, on February 9, 2018. John S. Duncan, Director, Flight Standards Service. Adoption of the Amendment

    Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal regulations, Part 97 (14 CFR part 97), is amended by amending Standard Instrument Approach Procedures and Takeoff Minimums and ODPs, effective at 0901 UTC on the dates specified, as follows:

    PART 97—STANDARD INSTRUMENT APPROACH PROCEDURES 1. The authority citation for part 97 continues to read as follows: Authority:

    49 U.S.C. 106(f), 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721-44722.

    2. Part 97 is amended to read as follows:
    §§ 97.23, 97.25, 97.27, 97.29, 97.31, 97.33, 97.35 [AMENDED]

    By amending: § 97.23 VOR, VOR/DME, VOR or TACAN, and VOR/DME or TACAN; § 97.25 LOC, LOC/DME, LDA, LDA/DME, SDF, SDF/DME; § 97.27 NDB, NDB/DME; § 97.29 ILS, ILS/DME, MLS, MLS/DME, MLS/RNAV; § 97.31 RADAR SIAPs; § 97.33 RNAV SIAPs; and § 97.35 COPTER SIAPs, Identified as follows:

    * * * Effective Upon Publication AIRAC date State City Airport FDC No. FDC date Subject 29-Mar-18 NY Le Roy Le Roy 7/0404 1/31/18 RNAV (GPS) RWY 28, Orig-B. 29-Mar-18 SC Columbia Columbia Metropolitan 7/0591 1/25/18 RNAV (GPS) RWY 5, Amdt 2B. 29-Mar-18 HI Kailua/Kona Kona Intl At Keahole 7/0594 1/24/18 RNAV (GPS) Y RWY 17, Amdt 1B. 29-Mar-18 HI Kailua/Kona Kona Intl At Keahole 7/0595 1/24/18 RNAV (GPS) Y RWY 35, Amdt 1A. 29-Mar-18 HI Kailua/Kona Kona Intl At Keahole 7/0596 1/24/18 RNAV (GPS) Z RWY 35, Amdt 1A. 29-Mar-18 HI Kailua/Kona Kona Intl At Keahole 7/0604 1/24/18 VOR/DME OR TACAN RWY 35, Orig-A. 29-Mar-18 HI Kailua/Kona Kona Intl At Keahole 7/0614 1/24/18 VOR/DME OR TACAN RWY 17, Orig-A. 29-Mar-18 HI Kailua/Kona Kona Intl At Keahole 7/0615 1/24/18 LOC/DME BC RWY 35, Amdt 10A. 29-Mar-18 HI Kailua/Kona Kona Intl At Keahole 7/0616 1/24/18 ILS OR LOC/DME RWY 17, Amdt 2A. 29-Mar-18 IN Terre Haute Terre Haute Intl-Hulman Field 7/0632 1/31/18 RNAV (GPS) RWY 5, Orig-C. 29-Mar-18 IN Terre Haute Terre Haute Intl-Hulman Field 7/0636 1/31/18 RNAV (GPS) RWY 14, Orig-B. 29-Mar-18 IN Terre Haute Terre Haute Intl-Hulman Field 7/0637 1/31/18 RNAV (GPS) RWY 23, Amdt 1B. 29-Mar-18 IN Terre Haute Terre Haute Intl-Hulman Field 7/0638 1/31/18 RNAV (GPS) RWY 32, Orig-B. 29-Mar-18 IN Terre Haute Terre Haute Intl-Hulman Field 7/0639 1/31/18 LOC BC RWY 23, Amdt 19B. 29-Mar-18 IN Terre Haute Terre Haute Intl-Hulman Field 7/0640 1/31/18 VOR RWY 23, Amdt 20C. 29-Mar-18 IN Terre Haute Terre Haute Intl-Hulman Field 7/0641 1/31/18 RADAR 1, Amdt 5. 29-Mar-18 IN Terre Haute Terre Haute Intl-Hulman Field 7/0642 1/31/18 Takeoff Minimums and Obstacle DP, Orig. 29-Mar-18 NJ Woodbine Woodbine Muni 7/0855 1/30/18 VOR-A, Amdt 1B. 29-Mar-18 AL Evergreen Middleton Field 7/0919 1/25/18 Takeoff Minimums and Obstacle DP, Amdt 2. 29-Mar-18 CA Susanville Susanville Muni 7/1141 1/24/18 RNAV (GPS) RWY 29, Amdt 1A. 29-Mar-18 CT Willimantic Windham 7/1583 1/24/18 RNAV (GPS) RWY 27, Amdt 1A. 29-Mar-18 PR Ponce Mercedita 7/1992 2/1/18 RNAV (GPS) RWY 12, Orig-C. 29-Mar-18 PR Ponce Mercedita 7/1994 2/1/18 RNAV (GPS) RWY 30, Orig-A. 29-Mar-18 FL Miami Miami-Opa Locka Executive 7/2864 1/24/18 ILS OR LOC RWY 9L, Amdt 5A. 29-Mar-18 FL Miami Miami-Opa Locka Executive 7/2866 1/24/18 ILS OR LOC RWY 27R, Amdt 1B. 29-Mar-18 FL Miami Miami-Opa Locka Executive 7/2867 1/24/18 RNAV (GPS) RWY 9L, Orig-A. 29-Mar-18 FL Miami Miami-Opa Locka Executive 7/2868 1/24/18 RNAV (GPS) RWY 12, Orig-A. 29-Mar-18 FL Miami Miami-Opa Locka Executive 7/2884 1/24/18 ILS OR LOC RWY 12, Amdt 2A. 29-Mar-18 IL Shelbyville Shelby County 7/3075 1/25/18 NDB-A, Amdt 2A. 29-Mar-18 IL Shelbyville Shelby County 7/3078 1/25/18 RNAV (GPS) RWY 36, Orig-A. 29-Mar-18 MI Mount Pleasant Mount Pleasant Muni 7/3159 1/25/18 RNAV (GPS) RWY 9, Orig. 29-Mar-18 MI Mount Pleasant Mount Pleasant Muni 7/3162 1/25/18 RNAV (GPS) RWY 27, Orig. 29-Mar-18 MI Mount Pleasant Mount Pleasant Muni 7/3167 1/25/18 VOR RWY 27, Amdt 1. 29-Mar-18 ME Brunswick Brunswick Executive 7/3376 1/30/18 RNAV (GPS) RWY 19L, Amdt 1A. 29-Mar-18 MO Nevada Nevada Muni 7/3535 1/30/18 RNAV (GPS) RWY 2, Orig. 29-Mar-18 MO Nevada Nevada Muni 7/3539 1/30/18 RNAV (GPS) RWY 20, Orig. 29-Mar-18 MO Nevada Nevada Muni 7/3541 1/30/18 VOR/DME-A, Amdt 2. 29-Mar-18 GA Cartersville Cartersville 7/3971 1/30/18 VOR/DME-A, Amdt 2B. 29-Mar-18 GA Cartersville Cartersville 7/3973 1/30/18 LOC RWY 19, Amdt 3A. 29-Mar-18 GA Cartersville Cartersville 7/3974 1/30/18 RNAV (GPS) RWY 1, Amdt 1A. 29-Mar-18 GA Cartersville Cartersville 7/3976 1/30/18 RNAV (GPS) RWY 19, Amdt 1A. 29-Mar-18 GA Sandersville Kaolin Field 7/4182 1/24/18 RNAV (GPS) RWY 13, Amdt 2. 29-Mar-18 GA Sandersville Kaolin Field 7/4183 1/24/18 RNAV (GPS) RWY 31, Amdt 2. 29-Mar-18 TX Carthage Panola County-Sharpe Field 7/4269 1/25/18 NDB RWY 35, Amdt 2. 29-Mar-18 TX Carthage Panola County-Sharpe Field 7/4273 1/25/18 RNAV (GPS) RWY 17, Orig. 29-Mar-18 AL Haleyville Posey Field 7/4926 1/30/18 RNAV (GPS) RWY 18, Orig-B. 29-Mar-18 WA Moses Lake Grant Co Intl 7/5203 1/30/18 ILS OR LOC RWY 32R, Amdt 20C. 29-Mar-18 WI Oshkosh Wittman Rgnl 7/5251 1/25/18 ILS OR LOC RWY 36, Amdt 7B. 29-Mar-18 WI Oshkosh Wittman Rgnl 7/5257 1/25/18 RNAV (GPS) RWY 36, Amdt 2B. 29-Mar-18 AR Russellville Russellville Rgnl 7/5518 1/30/18 RNAV (GPS) RWY 7, Orig. 29-Mar-18 NE Fremont Fremont Muni 7/5777 1/25/18 RNAV (GPS) RWY 14, Amdt 2A. 29-Mar-18 NE Fremont Fremont Muni 7/5783 1/25/18 RNAV (GPS) RWY 32, Orig-A. 29-Mar-18 MO St Louis St Louis Lambert Intl 7/5807 1/24/18 RNAV (GPS) Y RWY 11, Orig-C. 29-Mar-18 FL Key West Key West Intl 7/5830 1/25/18 RNAV (GPS) RWY 27, Orig-A. 29-Mar-18 LA Lake Charles Lake Charles Rgnl 7/5988 1/25/18 LOC BC RWY 33, Amdt 20. 29-Mar-18 LA Lake Charles Lake Charles Rgnl 7/5989 1/25/18 RNAV (GPS) RWY 33, Amdt 2A. 29-Mar-18 KY Owensboro Owensboro-Daviess County Rgnl 7/6329 1/30/18 RNAV (GPS) RWY 24, Amdt 2. 29-Mar-18 KY Owensboro Owensboro-Daviess County Rgnl 7/6331 1/30/18 ILS OR LOC RWY 36, Amdt 13. 29-Mar-18 KY Owensboro Owensboro-Daviess County Rgnl 7/6338 1/30/18 RNAV (GPS) RWY 6, Amdt 1. 29-Mar-18 KY Owensboro Owensboro-Daviess County Rgnl 7/6341 1/30/18 RNAV (GPS) RWY 18, Amdt 2. 29-Mar-18 KY Owensboro Owensboro-Daviess County Rgnl 7/6347 1/30/18 VOR RWY 6, Amdt 2. 29-Mar-18 KY Owensboro Owensboro-Daviess County Rgnl 7/6356 1/30/18 VOR RWY 18, Amdt 10. 29-Mar-18 IL Pinckneyville Pinckneyville-Du Quoin 7/6357 1/30/18 RNAV (GPS) RWY 36, Orig-B. 29-Mar-18 KY Owensboro Owensboro-Daviess County Rgnl 7/6360 1/30/18 VOR RWY 36, Amdt 19. 29-Mar-18 KY Owensboro Owensboro-Daviess County Rgnl 7/6363 1/30/18 Takeoff Minimums and Obstacle DP, Amdt 5. 29-Mar-18 KY Owensboro Owensboro-Daviess County Rgnl 7/6373 1/30/18 RNAV (GPS) RWY 36, Amdt 4. 29-Mar-18 PA Mount Pocono Pocono Mountains Muni 7/6959 1/30/18 RNAV (GPS) RWY 5, Orig-B. 29-Mar-18 AR Corning Corning Muni 7/7409 1/30/18 RNAV (GPS) RWY 36, Orig-B. 29-Mar-18 FL Miami Miami-Opa Locka Executive 7/7701 1/24/18 RNAV (GPS) RWY 27R, Orig-B. 29-Mar-18 NJ Millville Millville Muni 7/8575 1/25/18 RNAV (GPS) RWY 32, Orig-C. 29-Mar-18 IL Pinckneyville Pinckneyville-Du Quoin 7/8591 1/30/18 RNAV (GPS) RWY 18, Amdt 1A. 29-Mar-18 PA Somerset Somerset County 7/8747 1/25/18 RNAV (GPS) RWY 7, Amdt 1. 29-Mar-18 KS Wichita Wichita Dwight D Eisenhower National 7/8751 1/30/18 Takeoff Minimums and Obstacle DP, Orig-B. 29-Mar-18 IN Indianapolis Hendricks County-Gordon Graham Fld 7/8863 1/24/18 RNAV (GPS) RWY 18, Amdt 1A. 29-Mar-18 NC Kinston Kinston Rgnl Jetport at Stallings Fld 7/8927 1/31/18 ILS OR LOC RWY 5, Amdt 12. 29-Mar-18 AL Evergreen Middleton Field 7/9113 1/24/18 RNAV (GPS) RWY 1, Amdt 1B. 29-Mar-18 SD Watertown Watertown Rgnl 8/0327 2/1/18 ILS OR LOC RWY 35, Amdt 11. 29-Mar-18 NE Fremont Fremont Muni 8/0723 1/25/18 VOR/DME RWY 14, Amdt 3A. 29-Mar-18 KY Georgetown Georgetown-Scott County Rgnl 8/2410 1/31/18 Takeoff Minimums and Obstacle DP, Orig. 29-Mar-18 KY Georgetown Georgetown-Scott County Rgnl 8/2411 1/31/18 RNAV (GPS) RWY 3, Amdt 2. 29-Mar-18 KY Georgetown Georgetown-Scott County Rgnl 8/2412 1/31/18 RNAV (GPS) Y RWY 21, Orig. 29-Mar-18 KY Georgetown Georgetown-Scott County Rgnl 8/2413 1/31/18 RNAV (GPS) Z RWY 21, Amdt 2. 29-Mar-18 KY Georgetown Georgetown-Scott County Rgnl 8/2844 1/31/18 VOR/DME RWY 3, Amdt 1. 29-Mar-18 IN Terre Haute Terre Haute Rgnl 8/2860 1/31/18 ILS OR LOC RWY 5, Amdt 23A. 29-Mar-18 IN Terre Haute Terre Haute Rgnl 8/2863 1/31/18 VOR/DME RWY 5, Amdt 17E. 29-Mar-18 OK Muskogee Muskogee-Davis Rgnl 8/4270 1/24/18 RNAV (GPS) RWY 4, Amdt 1B.
    [FR Doc. 2018-03527 Filed 2-26-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 97 [Docket No. 31179; Amdt. No. 3787] Standard Instrument Approach Procedures, and Takeoff Minimums and Obstacle Departure Procedures; Miscellaneous Amendments AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    This rule establishes, amends, suspends, or removes Standard Instrument Approach Procedures (SIAPs) and associated Takeoff Minimums and Obstacle Departure Procedures (ODPs) for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, adding new obstacles, or changing air traffic requirements. These changes are designed to provide safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.

    DATES:

    This rule is effective February 27, 2018. The compliance date for each SIAP, associated Takeoff Minimums, and ODP is specified in the amendatory provisions.

    The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of February 27, 2018.

    ADDRESSES:

    Availability of matters incorporated by reference in the amendment is as follows:

    For Examination

    1. U.S. Department of Transportation, Docket Ops-M30, 1200 New Jersey Avenue SE, West Bldg., Ground Floor, Washington, DC 20590-0001.

    2. The FAA Air Traffic Organization Service Area in which the affected airport is located;

    3. The office of Aeronautical Navigation Products, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 or,

    4. The National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.

    Availability

    All SIAPs and Takeoff Minimums and ODPs are available online free of charge. Visit the National Flight Data Center at nfdc.faa.gov to register. Additionally, individual SIAP and Takeoff Minimums and ODP copies may be obtained from the FAA Air Traffic Organization Service Area in which the affected airport is located.

    FOR FURTHER INFORMATION CONTACT:

    Thomas J. Nichols, Flight Procedure Standards Branch (AFS-420), Flight Technologies and Programs Divisions, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 (Mail Address: P.O. Box 25082, Oklahoma City, OK 73125), Telephone: (405) 954-4164.

    SUPPLEMENTARY INFORMATION:

    This rule amends Title 14 of the Code of Federal Regulations, Part 97 (14 CFR part 97), by establishing, amending, suspending, or removes SIAPS, Takeoff Minimums and/or ODPS. The complete regulatory description of each SIAP and its associated Takeoff Minimums or ODP for an identified airport is listed on FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR part 97.20. The applicable FAA forms are FAA Forms 8260-3, 8260-4, 8260-5, 8260-15A, and 8260-15B when required by an entry on 8260-15A.

    The large number of SIAPs, Takeoff Minimums and ODPs, their complex nature, and the need for a special format make publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, Takeoff Minimums or ODPs, but instead refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP, Takeoff Minimums and ODP listed on FAA form documents is unnecessary. This amendment provides the affected CFR sections and specifies the types of SIAPs, Takeoff Minimums and ODPs with their applicable effective dates. This amendment also identifies the airport and its location, the procedure, and the amendment number.

    Availability and Summary of Material Incorporated by Reference

    The material incorporated by reference is publicly available as listed in the ADDRESSES section.

    The material incorporated by reference describes SIAPS, Takeoff Minimums and/or ODPS as identified in the amendatory language for part 97 of this final rule.

    The Rule

    This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP, Takeoff Minimums and ODP as Amended in the transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments may have been issued previously by the FAA in a Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts.

    The circumstances that created the need for some SIAP and Takeoff Minimums and ODP amendments may require making them effective in less than 30 days. For the remaining SIAPs and Takeoff Minimums and ODPs, an effective date at least 30 days after publication is provided.

    Further, the SIAPs and Takeoff Minimums and ODPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C 553(d), good cause exists for making some SIAPs effective in less than 30 days.

    The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

    List of Subjects in 14 CFR Part 97

    Air Traffic Control, Airports, Incorporation by reference, Navigation (Air).

    Issued in Washington, DC, on February 9, 2018. John S. Duncan, Director, Flight Standards Service. Adoption of the Amendment

    Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) is amended by establishing, amending, suspending, or removing Standard Instrument Approach Procedures and/or Takeoff Minimums and Obstacle Departure Procedures effective at 0901 UTC on the dates specified, as follows:

    PART 97—STANDARD INSTRUMENT APPROACH PROCEDURES 1. The authority citation for part 97 continues to read as follows: Authority:

    49 U.S.C. 106(f), 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721-44722.

    2. Part 97 is amended to read as follows: Effective 29 March 2018 Buckland, AK, Buckland, Takeoff Minimums and Obstacle DP, Amdt 2 Fairbanks, AK, Fairbanks Intl, ILS OR LOC RWY 2L, ILS RWY 2L (SA CAT I), ILS RWY 2L (CAT II), ILS RWY 2L (CAT III), Amdt 10A Fairbanks, AK, Fairbanks Intl, ILS OR LOC RWY 20R, ILS RWY 20R (SA CAT I), ILS RWY 20R (SA CAT II), Amdt 25A Fairbanks, AK, Fairbanks Intl, RNAV (GPS) Y RWY 2L, Amdt 1A Fairbanks, AK, Fairbanks Intl, RNAV (GPS) Y RWY 20R, Amdt 1B Fairbanks, AK, Fairbanks Intl, VOR OR TACAN RWY 20R, Orig-A Miami, FL, Dade-Collier Training and Transition, ILS OR LOC RWY 9, Amdt 15A, CANCELED Miami, FL, Dade-Collier Training and Transition, NDB RWY 9, Amdt 14, CANCELED Miami, FL, Dade-Collier Training and Transition, RNAV (GPS) RWY 9, Orig-A Fitzgerald, GA, Fitzgerald Muni, LOC RWY 2, Amdt 2 Fitzgerald, GA, Fitzgerald Muni, NDB RWY 2, Amdt 2 Fitzgerald, GA, Fitzgerald Muni, RNAV (GPS) RWY 2, Amdt 2 Council Bluffs, IA, Council Bluffs Muni, RNAV (GPS) RWY 14, Amdt 3 Council Bluffs, IA, Council Bluffs Muni, RNAV (GPS) RWY 32, Amdt 1 Chicago/Lake in the Hills, IL, Lake in the Hills, RNAV (GPS) RWY 8, Orig-A Chicago, IL, Chicago Midway Intl, RNAV (RNP) Y RWY 31C, Orig-B Gary, IN, Gary/Chicago Intl, RNAV (GPS) Y RWY 12, Amdt 2 New Castle, IN, New Castle-Henry Co Muni, NDB RWY 10, Orig New Castle, IN, New Castle-Henry Co Muni, NDB OR GPS RWY 9, Amdt 5C, CANCELED New Castle, IN, New Castle-Henry Co Muni, RNAV (GPS) RWY 9, Orig-A, CANCELED New Castle, IN, New Castle-Henry Co Muni, RNAV (GPS) RWY 10, Orig New Castle, IN, New Castle-Henry Co Muni, RNAV (GPS) RWY 27, Orig-B, CANCELED New Castle, IN, New Castle-Henry Co Muni, RNAV (GPS) RWY 28, Orig New Castle, IN, New Castle-Henry Co Muni, Takeoff Minimums and Obstacle DP, Amdt 1 New Castle, IN, New Castle-Henry Co Muni, VOR RWY 27, Amdt 10A, CANCELED Leonardtown, MD, St Mary's County Rgnl, RNAV (GPS) RWY 11, Amdt 2 Detroit, MI, Willow Run, ILS OR LOC RWY 5R, Amdt 16 Detroit, MI, Willow Run, RNAV (GPS) RWY 5R, Amdt 2 Detroit, MI, Willow Run, RNAV (GPS) RWY 23R, Amdt 1B Hastings, MI, Hastings, Takeoff Minimums and Obstacle DP, Amdt 6 Brownfield, TX, Terry County, RNAV (GPS) RWY 2, Amdt 1 Brownfield, TX, Terry County, RNAV (GPS) RWY 20, Amdt 1 Cheyenne, WY, Cheyenne Rgnl/Jerry Olson Field, RADAR 1, Amdt 2 Cheyenne, WY, Cheyenne Rgnl/Jerry Olson Field, RNAV (GPS) RWY 9, Amdt 1B Cheyenne, WY, Cheyenne Rgnl/Jerry Olson Field, RNAV (GPS) RWY 13, Amdt 1B Cheyenne, WY, Cheyenne Rgnl/Jerry Olson Field, RNAV (GPS) RWY 27, Orig-C Cheyenne, WY, Cheyenne Rgnl/Jerry Olson Field, RNAV (GPS) RWY 31, Amdt 1B Cheyenne, WY, Cheyenne Rgnl/Jerry Olson Field, VOR OR TACAN-A, Amdt 10B

    RESCINDED: On January 26, 2018 (83 FR 3572), the FAA Published an Amendment in Docket No. 31175, Amdt No. 3783, to Part 97 of the Federal Aviation Regulations Under Section 97.23, 97.29, and 97.33. The Following Entries for East Tawas, MI, Duluth, MN, and Dayton, OH, Effective March 29, 2018, Are Hereby Rescinded in Their Entirety:

    East Tawas, MI, Iosco County, VOR-A, Amdt 8, CANCELED Duluth, MN, Duluth Intl, COPTER ILS OR LOC RWY 27, Amdt 2B Duluth, MN, Duluth Intl, ILS OR LOC RWY 9, ILS RWY 9 (SA CAT I), ILS RWY 9 (CAT II), Amdt 22B Duluth, MN, Duluth Intl, ILS OR LOC RWY 27, Amdt 10C Dayton, OH, James M Cox Dayton Intl, ILS OR LOC RWY 18, Amdt 10A Dayton, OH, James M Cox Dayton Intl, ILS OR LOC RWY 24L, Amdt 10A Dayton, OH, James M Cox Dayton Intl, ILS OR LOC RWY 24R, Amdt 10A
    [FR Doc. 2018-03528 Filed 2-26-18; 8:45 am] BILLING CODE 4910-13-P
    CONSUMER PRODUCT SAFETY COMMISSION 16 CFR Part 1420 [CPSC Docket No. 2017-0032] All-Terrain Vehicles AGENCY:

    Consumer Product Safety Commission.

    ACTION:

    Final rule.

    SUMMARY:

    The Consumer Product Safety Act (CPSA), as amended by the Consumer Product Safety Improvement Act of 2008 (CPSIA), required the Consumer Product Safety Commission (CPSC or the Commission) to publish, as a mandatory consumer product safety standard, the American National Standard for Four-Wheel All-Terrain Vehicles, developed by the Specialty Vehicle Institute of America (ANSI/SVIA 1-2007). CPSC published that mandatory consumer product safety standard on November 14, 2008. ANSI/SVIA issued a 2017 edition of its standard in June 2017. In accordance with the CPSA, CPSC is issuing this final rule to amend the Commission's mandatory ATV standard to reference the 2017 edition of the ANSI/SVIA standard.

    DATES:

    This rule will become effective on January 1, 2019. The incorporation by reference of the publication listed in this rule is approved by the Director of the Federal Register as of January 1, 2019.

    FOR FURTHER INFORMATION CONTACT:

    Justin Jirgl, Compliance Officer, U.S. Consumer Product Safety Commission, 4330 East-West Highway, Bethesda, MD 20814; telephone: 301-504-7814; email: [email protected]

    SUPPLEMENTARY INFORMATION: I. Background and Statutory Authority

    Section 42 of the Consumer Product Safety Act (CPSA), as amended by section 232 of the CPSIA, directed the Commission to “publish in the Federal Register as a mandatory consumer product safety standard the American National Standard for Four-Wheel All-Terrain Vehicles Equipment Configuration, and Performance Requirements developed by the Specialty Vehicle Institute of America (American National Standard ANSI/SVIA 1-2007).” 15 U.S.C. 2089(a)(1). Accordingly, on November 14, 2008, CPSC published a final rule, codified at 16 CFR part 1420, mandating ANSI/SVIA 1-2007 as a consumer product safety standard. 73 FR 67385.

    Section 42(b) of the CPSA provides that, if ANSI/SVIA 1-2007 is revised after the Commission has published a Federal Register notice mandating the standard as a consumer product safety standard, ANSI must notify the Commission of the revision, and the Commission has 120 days after it receives that notification to issue a notice of proposed rulemaking to amend the Commission's mandatory ATV standard “to include any such revision that the Commission determines is reasonably related to the safe performance of [ATVs] and notify the Institute of any provision it has determined not to be so related.” 15 U.S.C. 2089(b)(1) and (2). Thereafter, the Commission has 180 days after publication of the proposed amendment to publish a final amendment to revise the ATV standard. Id. On February 29, 2012, the Commission revised part 1420, in accordance with the revision procedures set out in the CPSA, to reference the 2010 edition of the ANSI/SVIA standard. 77 FR 12197.

    II. The Proposed and Final Rules

    On June 14, 2017, ANSI notified the Commission that the ANSI/SVIA standard had been revised in 2017, and that the new standard, ANSI/SVIA 1-2017, was approved on June 8, 2017. On September 13, 2017, the Commission published a proposed rule (NPR), 82 FR 42962, to amend part 1420 to reference the 2017 edition of the ANSI/SVIA standard. In the NPR, the Commission described two material changes to ANSI/SVIA 1-2017, which compared to the 2010 edition of the standard, are reasonably related to the safe performance of ATVs: (A) Requirements for stop lamps or combination tail-stop lamps on all adult and transition category ATVs, and on all youth ATVs equipped with a head lamp or conspicuity lamp; and (B) requirements for reflectors for all categories of ATVs. 82 FR at 42961. These revisions have not changed for the final rule.

    A. Stop Lamps and Reflectors

    ANSI/SVIA 1-2017 Section 4.17, Lighting & Reflective Equipment, requires that all categories of ATVs be equipped with reflectors, all adult and transition ATVs be equipped with stop lamps, and that all youth ATVs already equipped with a head lamp or conspicuity lamp also be equipped with stop lamps.

    1. Stop Lamps

    ANSI/SVIA 1-2017 requires stop lamps or combination tail-stop lamps on all adult and transition category ATVs, and on all youth ATVs equipped with a head lamp or conspicuity lamp. In May 2015, CPSC requested that SVIA consider adding requirements relating to stop lamps to increase the detectability of ATVs, based on a preliminary analysis of 2007 ATV fatality data involving two ATVs colliding. CPSC staff worked with SVIA to develop the stop lamp requirements contained in ANSI/SVIA 1-2017. The stop lamp requirements in ANSI/SVIA 1-2017 are intended to improve the optional provision for stop lamps in the 2010 edition of the voluntary standard, to reduce rear-end collisions related to non-detection of a vehicle braking.

    2. Reflectors

    ANSI/SVIA 1-2017 requires one amber reflector on each side of the ATV (mounted as far forward as practicable), one red reflector on each side of the ATV (mounted as far rearward as practicable), one red reflector on the rear of the vehicle, and one white reflector on the front of the ATV, if not equipped with a headlamp or conspicuity light. These requirements are for all categories of ATV. The NPR reviewed that reflector use may increase the detectability of ATVs, citing CPSC staff's review of 331 fatal ATV-related vehicular collision incidents that found that more than 30 percent of these incidents occurred at night and an additional 5 percent occurred in low light (i.e., dusk). Moreover, CPSC's review of data demonstrate that fatalities occur when ATVs cross public roads between fields or trails. Although many factors contribute to incidents, increasing the visibility of ATVs at night will raise the likelihood that the driver of an oncoming vehicle will detect the ATV. Early detection of an ATV may allow the driver of an oncoming vehicle sufficient time to react and avoid a collision.

    In May 2015, CPSC requested that SVIA consider adding requirements relating to reflectors, and worked with SVIA in developing the reflector requirements contained in ANSI/SVIA 1-2017. The ANSI/SVIA 1-2017 reflector requirements are intended to increase the visibility of an ATV at night and may reduce vehicular collisions related to non-detection of other vehicles.

    The Commission now reviews the comments on the NPR, and finalizes the amendment to part 1420, updating the reference in part 1420 to ANSI/SVIA 1-1017, as described herein.

    III. Response to Comments

    The Commission received 32 comments on the NPR. However, 26 comments were about renewable energy and climate issues, and thus, were not related to the proposed amendment of the consumer product safety standard for ATVs. Of the remaining six comments relevant to the NPR, three agreed with the proposed rule, two opposed the proposed rule, and one commented on the proposed effective date.

    Below the Commission summarizes and responds to the significant issues raised in the relevant comments.

    A. Comment Regarding the Effective Date of the Final Rule

    Comment: The SVIA objected to the proposed 60-day effective date specified in the NPR. SVIA noted that although the CPSIA requires the Commission to issue an NPR within 120 days of receiving notification of the revised ANSI/SVIA standard, the Commission issued the NPR within 90 days of notification, on September 13, 2017, instead of closer to the statutory deadline of October 12, 2017. SVIA added that although the Commission is required to publish a final rule by March 12, 2018, the Commission could issue the final rule earlier. SVIA contended that the Commission's ability to issue the final rule earlier than the statutory deadline presents an uncertainty in the effective date, which makes it difficult for ATV manufacturers to plan for compliance. SVIA requested that the effective date of the final rule apply to ATVs beginning with the 2019 model year, to accommodate changes to the design of certain ATVs.

    Moreover, SVIA stated that modifications to meet the new standard require “changes to the electrical system and will require new engineering, designing, fabricating, and testing of reflectors and mounting brackets, all of which must be arranged significantly in advance of implementation.” SVIA noted that to meet the proposed 60-day effective date, all of these changes must be done before ATVs are imported and would apply to 2018 model year ATVs, which have already been designed and are under production, and may be awaiting shipment. SVIA contended that a 60-day effective date would also impose a financial burden on manufacturers, contrary to CPSC's statement that the proposed rule would not pose a significant impact on small manufacturers.

    Response: The Commission cannot set an effective date based on a model year for several reasons. First, effective dates for Commission rules are set by providing a calendar date based on the date of publication of a final rule. Second, manufacturers have varying schedules for manufacturing, importing, and distributing model years, making enforcement of a rule based on a model year more difficult. For enforcement purposes, and for clarity for consumers, the final rule provides an effective date that is a specific calendar date.

    Note that when the Commission amended the mandatory standard for ATVs in 2012, the seven major distributors of ATVs requested that the amended mandatory standard be effective for 2013 model year ATVs, or alternatively, 60 days after publication of the final rule.1 In the 2012 rulemaking, CPSC responded that tying the effective date to a particular model year was problematic because vehicle model years do not begin and end on the same date for each company. Based on this previous experience, the Commission proposed a 60-day effective date for the final rule, believing that the revisions required to meet the revised standard were not substantial, and that such a date would correspond with planning for the 2019 model year. 82 FR 42962.

    1 All-Terrain Vehicles: Final Rule Amending Consumer Product Safety Standard, dated February 8, 2012. Retrieved from: https://www.cpsc.gov/s3fs-public/pdfs/foia_atvfinal.pdf.

    SVIA's comment on the current rulemaking, however, provides sufficient rationale to demonstrate why the proposed 60-day effective date is not suitable for all ATV manufacturers. Moreover, as explained above, the Commission's intention was to align the effective calendar date of the final rule with the introduction of model year 2019 ATVs to the U.S. market. SVIA's past comments indicate that planning for the 2019 model year has been under way since March 2017, and that model year 2019 vehicles will be released in the 2018 calendar year.

    Based on SVIA's comments, the final rule establishes an effective date of January 1, 2019. A January 1, 2019 effective date will address staff's enforcement concerns, as well as provide manufacturers with sufficient time to make the changes SVIA states are needed so that all vehicles manufactured or imported after that date comply with the final rule.

    B. Comments Regarding Data Presented in the NPR

    Comment: Several commenters stated that the data presented in the NPR are insufficient to support the final rule. One commenter stated that the Commission failed to base the proposed requirement for rear-end lamps and reflectors on accurate or convincing statistics, noting: “Commission staff claims that this 13 incident-study provides proof that rear-end lamps would have prevented the pattern of rear-end collisions related to braking.” Another commenter stated that the final rule should include additional evidence regarding the number of fatalities that result from rear-end collisions and the benefits that will accrue if manufacturers are required to install stop lamps on ATVs.

    Focusing on the sufficiency of the data, one commenter argued that CPSC may exceed its authority to promulgate a rule because the majority of ATVs already have stop lamps, which does not support the conclusion that a stop lamp requirement is reasonably related to the safe performance of ATVs. Similarly, another commenter concluded that the proposed rule lacked “the factual or analytical basis” to support a rule, and therefore, was “arbitrary and capricious.”

    Response: Under section 42(b) of the CPSA, 15 U.S.C. 2089(b)(2), once notified by ANSI of a change to the voluntary standard for ATVs, the Commission is required to amend the consumer product safety standard for all-terrain vehicles to include any such revision that the Commission determines is reasonably related to the safe performance of all-terrain vehicles, and must notify ANSI of any provision the Commission determines not to be so related. This rulemaking follows the procedure required by the statute for the Commission to use when ANSI revises its voluntary standard. The Commission is not establishing its own consumer product safety standard under the requirements of sections 7 and 9 of the CPSA.

    Regarding the data presented in the NPR, staff's analysis of the 2007 study identified 13 rear-end collisions, and staff noted that eight of the 13 incidents “illustrate the hazard of rear-end collisions related to braking.” Staff did not, and does not, represent that anecdotal incidents constitute “proof” of the effectiveness of stop lamps.

    The information provided in the NPR explained CPSC staff's interactions with the voluntary standard organization, and provided context for why the Commission determined that the provisions in the voluntary standard are reasonably related to the safe performance of ATVs, which is the standard required by statute. Further, the National Highway Traffic Safety Administration (NHTSA) recognizes that conspicuity of a vehicle is related to the safety performance of vehicles in its Federal Motor Vehicle Safety Standards (FMVSS) for automobiles. Stop lamps and reflectors are specifically included in FMVSS 108 Lamps, reflective devices, and associated equipment and FMVSS 500 Low-speed vehicles as safety equipment. SVIA also recognizes conspicuity to be related to the safe performance of ATVs, and in the Annex of ANSI/SVIA 1-2017, specifically states that “conspicuity lights, tail lamps, and stop lamps can also be beneficial under certain riding conditions such as heavy brush, dusty or shaded trails, and similar low-light conditions” and that “reflex reflectors have been added for all categories of ATVs to aid in making ATVs more visible.”

    Based on the information described in the NPR and reviewed above, the Commission has no basis to conclude that the conspicuity changes to the ANSI standard are not reasonably related to the safe performance of ATVs. In the NPR, the Commission determined that increasing the conspicuity of an ATV helps an ATV to be seen by other vehicles in various lighting conditions. Accordingly, the Commission determined that voluntary standard provisions that increase ATV conspicuity are reasonably related to the safe performance of ATVs. By statute, the Commission is required to include such provisions in the mandatory consumer product safety standard.

    C. Comments Regarding the Scope of the Stop-Lamp Requirement

    Comment: Two commenters stated that the final rule should clarify the scope of the proposed stop-lamp requirement and provide rationale if the requirement only applies to adult and transition category ATVs. One commenter stated that the requirement for stop-lamps should be for “all categories of ATVs.”

    Response: ANSI/SVIA 1-2017 requires stop lamps on all adult and transition ATVs, and on all youth ATVs equipped with a head lamp or conspicuity lamp. A youth ATV without any front lights does not require a stop lamp. By design, youth ATVs do not have the same speed and equipment capabilities as adult and transition ATVs. For example, not all youth ATVs are equipped with lights, nor do they have electrical systems that are robust enough to support front or rear lights. Accordingly, revisions to the voluntary standard require reflectors on all categories of ATVs, but the revisions only require stop lamps on youth ATVs when it is technically feasible to do so. This approach in the voluntary standard is a practical technical solution for increasing conspicuity of youth ATVs.

    The final consumer product safety standard for ATVs (16 CFR part 1420) will require that ATVs comply with the applicable provisions of the 2017 revision of ANSI/SVIA, 1 American National Standard for Four Wheel All-Terrain Vehicles. Therefore, the mandatory standard for ATVs will require stop lamps on all adult and transition ATVs, and also require them on all youth ATVs equipped with a head lamp or conspicuity lamp.

    D. Comment on the Burden Imposed by the Final Rule

    Comment: One commenter stated that the Commission did not adequately consider the burden on industry if the final rule is implemented, stating that the NPR “disregards the fact that adopting these new standards will impose financial hardship on ATV manufacturers.” This commenter suggested that, in lieu of the final rule, “the Commission implement a mandatory licensing program that teaches ATV safety.”

    Response: The commenter provided no information or data for CPSC to evaluate regarding the alleged hardship to industry. SVIA stated that manufacturer planning for 2019 model year ATVs is under way and that manufacturers intend to meet the requirements of ANSI/SVIA 1-2017 for the 2019 model year. Other than the effective date issue discussed above, the Commission did not receive any comments from any ATV manufacturer or SVIA to support the contention that implementation of the final rule will impose a financial hardship. As discussed above, the final rule sets January 1, 2019 as the effective date to address SVIA's concern.

    Regarding the suggestion that the Commission establish a licensing and instruction program, such action is outside the jurisdiction of the CPSC's authority. The authority to implement any licensing requirements for ATV drivers rests with the states.

    IV. Description of the Final Rule

    The final rule revises 16 CFR 1420.3(a), “Requirements for four-wheel ATVs” to incorporate by reference the ANSI/SVIA 1-2017 standard, instead of the ANSI/SVIA 1-2010 version. ANSI/SVIA 1-2017 contains requirements and test methods relating to ATVs, including vehicle equipment and configuration, vehicle speed capability, brake performance, pitch stability, electromagnetic compatibility, and sound level limits. Revisions incorporated into ANSI/SVIA 1-2017 are described in section II of this preamble.

    V. Effective Date

    Section 42(b) of the CPSA provides a timetable for the Commission to issue a notice of proposed rulemaking (within 120 days of receiving notification of a revised ANSI/SVIA standard) and to issue a final rule (within 180 days of publication of the proposed rule), but the statute does not set an effective date. The Commission proposed in the NPR that the final rule would take effect 60 days after publication of a final rule in the Federal Register, and it would apply to ATVs manufactured or imported on or after that date. However, based on the SVIA's objection to a 60-day effective date, as discussed above in section III.A, the effective date for this final rule is January 1, 2019. Accordingly, all ATVs manufactured or imported on or after January 1, 2019, must comply with the final rule.

    VI. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires that agencies review a proposed rule for the rule's potential economic impact on small entities, including small businesses. The NPR explained that the most significant changes to the voluntary standard involved requirements for brake-actuated stop lamps and reflectors, and that CPSC's analysis demonstrated that the majority of ATVs already comply with these requirements. Consequently, the Commission anticipated that the cost of the changes required to bring ATVs that do not comply into compliance with the rule would be very low on a per-unit basis. The Commission certified that the rule would not have a significant impact on a substantial number of small entities. 82 FR at 42962.

    As discussed in section III.A of this preamble, the Commission received a comment from the SVIA stating that the proposed 60-day effective date could change the financial impact of the rule. In response, the Commission will provide additional time to comply with the final rule, setting January 1, 2019 as the effective date. Affording a later effective date should provide manufacturers sufficient time to incorporate any necessary changes during the normal planning and design of new model year ATVs. Accordingly, based on staff's assessment using January 1, 2019 as the effective date, the Commission certifies that the final rule is unlikely to have a significant impact on a substantial number of small entities.

    VII. Paperwork Reduction Act

    The final rule does not impose any information collection requirements. Accordingly, this rule is not subject to the Paperwork Reduction Act, 44 U.S.C. 3501-3520.

    VIII. Environmental Considerations

    The Commission's regulations provide a categorical exemption for the Commission's rules from any requirement to prepare an environmental assessment or an environmental impact statement as they “have little or no potential for affecting the human environment.” 16 CFR 1021.5(c)(2). This final rule falls within the categorical exemption.

    IX. Incorporation by Reference

    Section 1420.3 of the final rule provides that ATVs must comply with ANSI/SVIA 1-2017. The OFR has regulations concerning incorporation by reference. 1 CFR part 51. These regulations require that, for a final rule, agencies must discuss in the preamble to the rule the way in which materials that the agency incorporates by reference are reasonably available to interested persons, and how interested parties can obtain the materials. Additionally, the preamble to the rule must summarize the material. 1 CFR 51.5(b).

    In accordance with the OFR's requirements, the discussion in sections II, III, and IV of this preamble summarize the provisions of ANSI/SVIA 1-2017. ANSI/SVIA 1-2017 is copyrighted. Interested persons may purchase a copy of ANSI/SVIA 1-2017 from Specialty Vehicle Institute of America, 2 Jenner, Suite 150, Irvine, CA 92618-3806; telephone: 949-727-3727 ext. 3023; www.svia.org. One may also inspect a copy at CPSC's Office of the Secretary, U.S. Consumer Product Safety Commission, Room 820, 4330 East West Highway, Bethesda, MD 20814, telephone: 301-504-7923.

    X. Preemption

    Section 26(a) of the CPSA, 15 U.S.C. 2075(a), provides that when a consumer product safety standard is in effect and applies to a product, no state or political subdivision of a state may either establish or continue in effect a standard or regulation that prescribes requirements for the performance, composition, contents, design, finish, construction, packaging, or labeling of such product dealing with the same risk of injury unless the state requirement is identical to the federal standard. Section 26(c) of the CPSA also provides that states or political subdivisions of states may apply to the Commission for an exemption from this preemption under certain circumstances. Section 42(a)(1) of the CPSA refers to rules issued under that section as “consumer product safety standards.” Therefore, the preemption provision of section 26(a) of the CPSA applies to this final rule.

    XI. Notice of Requirements

    The CPSA establishes certain requirements for product certification and testing. Certification of children's products subject to a children's product safety rule must be based on testing conducted by a CPSC-accepted third-party conformity assessment body. 15 U.S.C. 2063(a)(2). The Commission is required to publish a notice of requirements (NOR) for the accreditation of third-party conformity assessment bodies to assess conformity with a children's product safety rule to which a children's product is subject. Id. 2063(a)(3). On August 27, 2010, the Commission published an NOR for accreditation of third-party conformity assessment bodies for testing ATVs designed or intended primarily for children 12 years of age or younger. 75 FR 52616. The 2017 revision to the ATV standard does not substantially alter third party conformance testing requirements for ATVs designed or intended primarily for children 12 years of age or younger. Accordingly, the NOR for third-party testing of youth ATVs remains unchanged. The Commission considers the existing accreditations that the Commission has accepted for testing to the ATV standard to also cover testing to the revised 2017 ATV standard.

    List of Subjects in 16 CFR Part 1420

    Consumer protection, Imports, Incorporation by reference, Infants and children, Information, Labeling, Law enforcement, Recreation and recreation areas, Reporting and recordkeeping requirements, Safety.

    For the reasons stated in the preamble, the Commission amends 16 CFR part 1420 as follows:

    PART 1420—REQUIREMENTS FOR ALL-TERRAIN VEHICLES 1. The authority citation for part 1420 continues to read as follows: Authority:

    The Consumer Product Safety Improvement Act of 2008, Pub. Law 110-314, § 232, 122 Stat. 3016 (August 14, 2008).

    § 1420.1 [Amended]
    2. In the second sentence of § 1420.1, remove the words, “April 30, 2012”, and add in their place “January 1, 2019”. 3. Revise § 1420.3(a) to read as follows:
    § 1420.3 Requirements for four-wheel ATVs.

    (a) Each ATV shall comply with all applicable provisions of the American National Standard for Four-Wheel All-Terrain Vehicles (ANSI/SVIA 1-2017), ANSI-approved on June 8, 2017. The Director of the Federal Register approves this incorporation by reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You may obtain a copy from Specialty Vehicle Institute of America, 2 Jenner, Suite 150, Irvine, CA 92618-3806; telephone: 949-727-3727 ext. 3023; www.svia.org. You may inspect a copy at the Office of the Secretary, U.S. Consumer Product Safety Commission, Room 820, 4330 East-West Highway, Bethesda, MD. 20814, telephone: 301-504-7923, or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: www.archives.gov/federal-register/cfr/ibr-locations.html.

    Alberta E. Mills, Secretary, Consumer Product Safety Commission.
    [FR Doc. 2018-03904 Filed 2-26-18; 8:45 am] BILLING CODE 6355-01-P
    CONSUMER PRODUCT SAFETY COMMISSION 16 CFR Part 1500 [CPSC Docket No. CPSC-2012-0036] Hazardous Substances and Articles; Administration and Enforcement Regulations: Corrections to Animal Testing Regulations AGENCY:

    Consumer Product Safety Commission.

    ACTION:

    Direct final rule.

    SUMMARY:

    The Consumer Product Safety Commission (CPSC or Commission) is issuing a direct final rule to correct its animal testing regulations under the Federal Hazardous Substances Act (FHSA). The rule reinserts text that was inadvertently omitted and corrects references.

    DATES:

    The rule is effective on April 30, 2018, unless we receive significant adverse comment by March 29, 2018. If we receive timely significant adverse comment, we will publish notification in the Federal Register, withdrawing this direct final rule before its effective date.

    ADDRESSES:

    You may submit comments, identified by Docket No. CPSC-2012-0036, by any of the following methods:

    Electronic Submissions: Submit electronic comments to the Federal eRulemaking Portal at: www.regulations.gov. Follow the instructions for submitting comments. The Commission does not accept comments submitted by electronic mail (email), except through www.regulations.gov. The Commission encourages you to submit electronic comments by using the Federal eRulemaking Portal, as described above.

    Written Submissions: Submit written submissions by mail/hand delivery/courier to: Office of the Secretary, Consumer Product Safety Commission, Room 820, 4330 East West Highway, Bethesda, MD 20814; telephone (301) 504-7923.

    Instructions: All submissions received must include the agency name and docket number for this notice. All comments received may be posted without change, including any personal identifiers, contact information, or other personal information provided, to: www.regulations.gov. Do not submit confidential business information, trade secret information, or other sensitive or protected information that you do not want to be available to the public. If furnished at all, such information should be submitted in writing.

    Docket: For access to the docket to read background documents or comments received, go to: www.regulations.gov, and insert the docket number CPSC-2012-0036, into the “Search” box, and follow the prompts.

    FOR FURTHER INFORMATION CONTACT:

    Alice Thaler, Associate Executive Director for Health Sciences, Consumer Product Safety Commission, 5 Research Place, Rockville, MD 20850; telephone (301) 987-2240; [email protected]

    SUPPLEMENTARY INFORMATION: A. Background

    The Federal Hazardous Substances Act (FHSA), 15 U.S.C. 1261-1278, requires appropriate cautionary labeling on certain hazardous household substances to alert consumers to the potential hazards that a product may present. Among the hazards addressed by the FHSA are products that are toxic, corrosive, irritants, flammable, combustible, or strong sensitizers. The FHSA and the Commission's regulations at 16 CFR part 1500 provide the definitions and test methods used to determine whether a substance is “hazardous” under the FHSA. Specifically, § 1500.3(b) of these regulations restates the statutory definitions that are in the FHSA. Section 1500.3(c) interprets, supplements, or provide alternatives to the statutory definitions. Section 1500.40 provides the method of testing toxic substances.

    On December 10, 2012, the CPSC amended and updated regulations on the CPSC's animal testing methods under the FHSA (77 FR 73289). Among other things, the amendment to 16 CFR 1500.3 explained that alternative test methods exist that avoid, reduce, or refine animal testing to determine toxicity. At the same time, the CPSC codified its statement of policy on animal testing to reflect new test methods accepted by the scientific community, including recommendations of the Interagency Coordinating Committee on the Validation of Alternative Methods in a new section, 16 CFR 1500.232. (77 FR 73286). Sections 1500.3(c) and 1500.232 cross-reference each other.

    CPSC staff recently reviewed the animal testing regulations. Staff's review showed that when CPSC revised the animal testing regulations, the definitions in 16 CFR 1500.3(c)(2)(i), inadvertently removed the definition of “acute toxicity” (oral, dermal, and inhalation). Before the 2012 amendment, this definition appeared at § 1500.3(c)(2)(i)(A) through (C). We are amending § 1500.3(c)(2)(i) to restore the “acute toxicity” definition. In addition, staff found that two other corrections are needed. As explained below, we are reinserting a sentence into the definition of “corrosive” in § 1500.3, and we are correcting a reference that appears in the regulation on method of testing toxic substances at § 1500.40.

    B. Amendments 1. Definition of “Toxic”

    The FHSA defines the term “toxic.” 15 U.S.C. 1261(f). The Commission has issued regulations that supplement the FHSA's statutory definition under 16 CFR 1500.3(c). Before 2012, the regulatory definitions included a definition of “acute toxicity,” which provided guidance on the toxicity of substances falling in different toxicity ranges for oral, dermal, and inhalation exposures. The Commission intended to retain those paragraphs in the CFR under § 1500.3(c)(2)(i) when it amended the animal testing regulations. 77 FR 73293. However, the subsequent versions of the CFR omitted those subparagraphs. These provisions are necessary because they give specificity to the definition of “toxic.” The paragraphs that were omitted included guidance on when a substance might be considered for exemption from some or all of the labeling requirements of the FHSA. In addition, the omitted provisions provided guidance on the toxicity of substances falling within the toxicity range of 500 mg and 5 grams per kilogram of body weight. Without this text in the CFR, the CPSC cannot reference the testing criteria that help to determine acute toxicity. The animal testing policy under 16 CFR 1500.232(b)(1)(i) also refers to these paragraphs (16 CFR 1500.3(c)(1) and (2)) to describe the traditional animal testing methods.

    Accordingly, the Commission amends § 1500.3(c)(2)(i) to reinstate the omitted paragraphs to give specificity to the definition of “toxic.”

    2. Interpretation of “Corrosive”

    Section 1500.3(c)(3) provides a regulatory definition of “corrosive” that supplements the statutory definition of “corrosive” under the FHSA. Before the 2012 amendment of the animal testing regulations, 16 CFR 1500.3(c)(3) included a citation to the relevant section of the FHSA that defined the term “corrosive,” 15 U.S.C. 1261(h)(2)(i), and a cross-reference to 16 CFR 1500.3(b)(7), which restated the statutory definition of “corrosive.” However, that text was removed in the subsequent editions of the CFR. The Commission believes that reinserting that sentence in § 1500.3(c)(3) will help clarify what is meant by “corrosive” by providing the references to the statutory definition under the FHSA. Accordingly, the Commission amends § 1500.3(c)(3) to reference the definition of “corrosive” under 15 U.S.C. 1261(h)(2)(i), as cross-referenced in 16 CFR 1500.3(b)(7).

    3. Method of Testing Toxic Substances

    The method of testing toxic substances for acute dermal toxicity is set forth in 16 CFR 1500.40. Currently, the method of testing the toxic substances references “§ 1500.3(c)(1)(ii)(C) and (c)(2)(iii).” However, § 1500.3(c)(2)(iii) does not exist. Accordingly, the Commission is amending § 1500.40 to correct the references for testing toxic substances, which are § 1500.3(c)(1) and (2).

    C. Direct Final Rule Process

    The Commission is issuing this rule as a direct final rule. The Administrative Procedure Act (APA) generally requires notice and comment rulemaking. 5 U.S.C. 553. The direct final rule process is an appropriate process for expediting the issuance of non-controversial rules. In Recommendation 95-4, the Administrative Conference of the United States (ACUS) endorsed direct final rulemaking as an appropriate procedure to expedite promulgating rules that are noncontroversial and that are not expected to generate significant adverse comment. See 60 FR 43108 (August 18, 1995). Consistent with the ACUS recommendation, the Commission is publishing this rule as a direct final rule because we believe the corrections will not be controversial. The rule will not impose any new obligations, but rather, will reinstate text that was inadvertently omitted and correct references. Therefore, the Commission believes this rulemaking is a non-controversial matter that is not likely to engender any significant comments.

    Unless we receive a significant adverse comment within 30 days, the rule will take effect on April 30, 2018. In accordance with ACUS's recommendation, the Commission considers a significant adverse comment to be one where the commenter explains why the rule would be inappropriate, including an assertion challenging the rule's underlying premise or approach, or a claim that the rule would be ineffective or unacceptable without change.

    Should the Commission receive significant adverse comment, the Commission would withdraw this direct final rule. Depending on the comments and other circumstances, the Commission may then incorporate the adverse comment into a subsequent direct final rule or publish a notice of proposed rulemaking, providing an opportunity for public comment.

    D. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires that agencies review proposed and final rules for their potential economic impact on small entities, including small businesses, and prepare regulatory flexibility analyses. 5 U.S.C. 603 and 604. When CPSC issued the animal testing regulations in December 2012, staff assessed the potential effect the regulations would have on small businesses, and the Commission certified that the rule would not have a significant impact on a substantial number of small entities. 77 FR 73293. The corrections to the regulations do not make any substantive changes. Therefore, the Commission certifies that the direct final rule will not have a significant impact on a substantial number of small entities.

    E. Paperwork Reduction Act

    This rule would not impose any information collection or disclosure requirements. Accordingly, the rule is not subject to the Paperwork Reduction Act, 44 U.S.C. 3501-3520.

    F. Environmental Considerations

    This rule makes corrections to regulatory definitions and references. As such, the rule will not affect the human environment. See 16 CFR 1021.5.

    List of Subjects in 16 CFR Part 1500

    Consumer protection, Hazardous substances, Imports, Infants and children, Labeling, Law enforcement, Reporting and recordkeeping requirements, Toys.

    Accordingly, 16 CFR part 1500 is amended as follows:

    PART 1500—[AMENDED] 1. The authority citation for part 1500 is revised to reads as follows: Authority:

    15 U.S.C. 1261-1278.

    2. Amend § 1500.3 by: a. Revising paragraph (c)(2)(i); and b. Adding a sentence to the beginning of paragraph (c)(3).

    The revision and addition read as follows:

    § 1500.3 Definitions.

    (c) * * *

    (2) * * *

    (i) Acute toxicity. Toxic means any substance that produces death within 14 days in half or more than half of a group of:

    (A) White rats (each weighing between 200 and 300 grams) when a single dose of from 50 milligrams to 5 grams per kilogram of body weight is administered orally. Substances falling in the toxicity range between 500 milligrams and 5 grams per kilogram of body weight will be considered for exemption from some or all of the labeling requirements of the act, under § 1500.82, upon a showing that such labeling is not needed because of the physical form of the substances (solid, a thick plastic, emulsion, etc.), the size or closure of the container, human experience with the article, or any other relevant factors;

    (B) White rats (each weighing between 200 and 300 grams) when an atmospheric concentration of more than 200 parts per million but not more than 20,000 parts per million by volume of gas or vapor, or more than 2 but not more than 200 milligrams per liter by volume of mist or dust, is inhaled continuously for 1 hour or less, if such concentration is likely to be encountered by man when the substance is used in any reasonably foreseeable manner; and/or

    (C) Rabbits (each weighing between 2.3 and 3.0 kilograms) when a dosage of more than 200 milligrams but not more than 2 grams per kilogram of body weight is administered by continuous contact with the bare skin for 24 hours by the method described in § 1500.40.

    (D) The number of animals tested shall be sufficient to give a statistically significant result and shall be in conformity with good pharmacological practices. Toxic also applies to any substance that can be labeled as such, based on the outcome of any of the approved test methods described in the CPSC's animal testing policy set forth in § 1500.232, including data from in vitro or in silico test methods that the Commission has approved; or a validated weight-of-evidence analysis comprising all of the following that are available: Existing human and animal data, structure activity relationships, physicochemical properties, and chemical reactivity data.

    (3) The definition of corrosive in section 2(i) of the act (restated in paragraph (b)(7) of this section) is interpreted to also mean the following: * * *

    § 1500.40 [Amended]
    3. Amend the last sentence of the introductory text of § 1500.40 by removing the citation “§ 1500.3(c)(1)(ii)(C) and (c)(2)(iii)” and adding in its place “§ 1500.3(c)(1) and (2).” Alberta E. Mills, Secretary, Consumer Product Safety Commission.
    [FR Doc. 2018-03916 Filed 2-26-18; 8:45 am] BILLING CODE 6355-01-P
    SECURITIES AND EXCHANGE COMMISSION 17 CFR Parts 270 and 274 [Release No. IC-33010; File No. S7-03-18] RIN 3235-AM26 Investment Company Liquidity Risk Management Programs; Commission Guidance for In-Kind ETFs AGENCY:

    Securities and Exchange Commission.

    ACTION:

    Interim final rule; request for comment; interpretation.

    SUMMARY:

    The Securities and Exchange Commission is adopting an interim final rule that revises the compliance date for the requirements of rule 22e-4 for classification, highly liquid investment minimum, and board approval, as well as related reporting requirements of Part D on Form N-LIQUID and liquidity disclosures on Form N-PORT under the Investment Company Act of 1940. The revised compliance date will be June 1, 2019, for larger entities (revised from December 1, 2018) and December 1, 2019, for smaller entities (revised from June 1, 2019). The Commission is not extending the compliance date for the other provisions of rule 22e-4 and Form N-LIQUID, and liquidity-related changes to Form N-CEN—which remain December 1, 2018 for larger entities and June 1, 2019 for smaller entities. The Commission also is not extending the compliance date for the liquidity-related provisions of Form N-1A, which has already passed. Finally, the Commission is providing guidance to assist funds that will not be engaging in full portfolio classification before the revised compliance date, and In-Kind ETFs, which are not required to engage in full portfolio classification, in identifying illiquid investments for purposes of complying with the 15% illiquid investment limit.

    DATES:

    Effective Dates: The effective date of the interim final rule is March 29, 2018. The effective date for 17 CFR 270.22e-4 and 270.30b1-10 and the amendments to Form N-PORT (referenced in 17 CFR 274.150) published at 81 FR 82267 (November 18, 2016) remains January 17, 2017, and the effective date for amendments to Form N-CEN (referenced in 17 CFR 274.101) published at 81 FR 82267 (November 18, 2016) remains June 1, 2018.

    Compliance Dates: The compliance date for 17 CFR 270.22e-4(b)(1)(ii) except to the extent referenced in 17 CFR 270.22e-4(a)(8),1 17 CFR 270.22e-4(b)(1)(iii), 17 CFR 270.22e-4(b)(2)(i) and (iii), certain elements of 17 CFR 270.22e-4(b)(3) related to the delayed provisions of rule 22e-4, and the liquidity-related amendments to Form N-PORT (discussed in section I.C below) and Part D of Form N-LIQUID have been extended until June 1, 2019 for larger entities, and December 1, 2019 for smaller entities, as defined in section I below.

    1See infra footnote 71.

    Comment Date: Comments should be received on or before April 27, 2018.

    ADDRESSES:

    Comments may be submitted by any of the following methods:

    Electronic Comments

    • Use the Commission's internet comment form (http://www.sec.gov/rules/interim-final-temp.shtml);

    • Send an email to [email protected]. Please include File Number S7-03-18 on the subject line; or

    Paper Comments

    • Send paper comments to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.

    All submissions should refer to File Number S7-03-18. This file number should be included on the subject line if email is used. To help us process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's internet website (http://www.sec.gov/rules/interim-final-temp.shtml). Comments are also available for website viewing and printing in the Commission's Public Reference Room, 100 F Street NE, Washington, DC 20549, on official business days between the hours of 10:00 a.m. and 3:00 p.m. All comments received will be posted without change. Persons submitting comments are cautioned that we do not redact or edit personal identifying information from comment submissions. You should submit only information that you wish to make available publicly.

    Studies, memoranda, or other substantive items may be added by the Commission or staff to the comment file during this rulemaking. A notification of the inclusion in the comment file of any such materials will be made available on the Commission's website. To ensure direct electronic receipt of such notifications, sign up through the “Stay Connected” option at www.sec.gov to receive notifications by email.

    FOR FURTHER INFORMATION CONTACT:

    Zeena Abdul-Rahman, Senior Counsel, or Thoreau Bartmann, Senior Special Counsel, at (202) 551-6792, Division of Investment Management, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-8549.

    SUPPLEMENTARY INFORMATION:

    The Securities and Exchange Commission (“Commission”) is extending the compliance dates associated with following provisions of rule 22e-4 [17 CFR 270.22e-4]: Rule 22e-4(b)(1)(ii) [17 CFR 270.22e-4(b)(1)(ii)] except to the extent it is referenced in rule 22e-4(a)(8) [17 CFR 270.22e-4(a)(8)]; rule 22e-4(b)(1)(iii) [17 CFR 270.22e-4(b)(1)(iii)]; rule 22e-4(b)(2)(i) [17 CFR 270.22e-4(b)(2)(i)]; rule 22e-4(b)(2)(iii) [17 CFR 270.22e-4(b)(2)(iii)]; and certain elements of rule 22e-4(b)(3) [17 CFR 270.22e-4(b)(3)] under the Investment Company Act of 1940 [15 U.S.C. 80a-1 et seq.] (“Investment Company Act” or “Act”). The Commission also is extending the compliance dates associated with Part D of Form N-LIQUID [referenced in 17 CFR 274.223] as well as amendments to Form N-PORT [referenced in 17 CFR 274.150] under the Investment Company Act.

    I. Discussion

    On October 13, 2016, the Commission adopted rule 22e-4 and related rule and form amendments to enhance the regulatory framework for liquidity risk management of registered open-end investment companies (“funds”).2 Specifically, we adopted rules 22e-4 and 30b1-10, new Form N-LIQUID, as well as amendments to Forms N-1A, N-PORT, and N-CEN (collectively, the “Liquidity Rule Requirements”).3 We designed these rules and forms to promote effective liquidity risk management throughout the fund industry and to enhance disclosure regarding fund liquidity and redemption practices.4

    2 The term “funds” used in this release includes open-end management companies, including exchange-traded funds (“ETFs”) that do not qualify as In-Kind ETFs (as defined in rule 22e-4(a)(9)), and excludes money market funds.

    3 Investment Company Liquidity Risk Management Programs, Investment Company Act Release No IC-32315 (Oct. 13, 2016) [81 FR 82142 (Nov. 18, 2016)] (“Adopting Release”).

    4See id., at text accompanying n.112.

    The compliance date for the amendments to Form N-1A was June 1, 2017. For the remainder of the Liquidity Rule Requirements, the Commission established a tiered set of compliance dates based on a fund group's asset size. Specifically, for larger entities,5 we adopted a compliance date of December 1, 2018. For smaller entities, we adopted a compliance date of June 1, 2019. As discussed in more detail below, the Commission believes it is appropriate to revise the compliance date for certain elements of the Liquidity Rule Requirements until June 1, 2019 for larger entities and December 1, 2019 for smaller entities.6

    5 “Larger entities” are defined as funds that, together with other investment companies in the same “group of related investment companies,” have net assets of $1 billion or more as of the end of the most recent fiscal year of the fund. “Smaller entities” are defined as funds that, together with other investment companies in the same group of related investment companies, have net assets of less than $1 billion as of the end of its most recent fiscal year. See Adopting Release, supra footnote 3, at n.997. We adopted this tiered set of compliance dates based on asset size because we anticipated that smaller groups would benefit from this extra time to comply and from the lessons learned by larger investment companies. See Adopting Release, supra footnote 3, at n.1009 and accompanying text.

    6 The effective date of January 17, 2017 for these elements is unchanged. As described in this release, the Commission is revising compliance dates associated with certain aspects of rule 22e-4, Form N-PORT and Form N-LIQUID.

    A. Summary of the Liquidity Rule Requirements Rule 22e-4—Liquidity Risk Management Programs

    Rule 22e-4 requires each fund to adopt and implement a written liquidity risk management program reasonably designed to assess and manage the fund's liquidity risk. A fund's liquidity risk management program must incorporate certain specified elements: (i) Assessment, management, and periodic review of the fund's liquidity risk; (ii) classification of the liquidity of each of the fund's portfolio investments, as well as at least monthly reviews of the fund's liquidity classifications (“portfolio classification” or “classification”); (iii) determining and periodically reviewing a highly liquid investment minimum (the “HLIM”); (iv) limiting the fund's investment in illiquid investments that are assets to no more than 15% of the fund's net assets (“15% illiquid investment limit”); and (v) for funds that engage in, or reserve the right to engage in, redemptions in-kind, the establishment of policies and procedures regarding how they will engage in such redemptions in-kind.

    The rule requires each fund to adopt a liquidity risk management program and obtain board approval of such program. Fund boards must also approve an administrator for the program (“program administrator”), and review annual reports from the fund's program administrator on the operation of the program and the program's adequacy and effectiveness of implementation, including, if applicable, the operation of the HLIM, and any material changes to the program.

    The portfolio classification requires a fund to classify each portfolio investment into one of four defined liquidity categories, known as “buckets”: Highly liquid investments, moderately liquid investments, less liquid investments, and illiquid investments.7 These buckets are intended to take into account relevant market-, trading-, and investment-specific considerations, as well as market depth and whether sales of an investment would significantly change the market value of the investment.8 While the rule permits a fund to classify portfolio investments based on asset class, it requires the fund to implement a “reasonable exceptions process” for investments that should be classified separately from their class.9 Finally, portfolio classification requires a fund to review its portfolio investments' classifications monthly unless a “reasonable exceptions process” requires a more frequent review.10

    7 Rule 22e-4(b)(1)(ii). This classification is based on the number of days in which a fund reasonably expects an investment would be convertible to cash (or, in the case of the less-liquid and illiquid categories, sold or disposed of) without the conversion significantly changing the market value of the investment.

    8 Rule 22e-4(b)(1)(ii).

    9 Rule 22e-4(b)(1)(ii)(A) (“The fund may generally classify and review its portfolio investments . . . according to their asset class, provided, however, that the fund must separately classify and review any investment within an asset class if the fund or its adviser has information about any market, trading, or investment-specific considerations that are reasonably expected to significantly affect the liquidity characteristics of that investment as compared to the fund's other portfolio holdings within that asset class.”).

    10 Rule 22e-4(b)(1)(ii)(“A fund must review its portfolio investments' classifications, at least monthly in connection with reporting the liquidity classification for each portfolio investment on Form N-PORT . . . and more frequently if changes in relevant market, trading, and investment-specific considerations are reasonably expected to materially affect one or more of its investments' classifications.”).

    The HLIM requires a fund to determine the minimum amount of net assets that it will invest in highly liquid investments that are assets.11 This requirement relies on the portfolio classification process to identify which investments are bucketed as highly liquid.

    11 Rule 22e-4(a)(7).

    The 15% illiquid investment limit prohibits a fund (as well as an In-Kind ETF) from acquiring any illiquid investment if, immediately after such acquisition, it would have invested more than 15% of its net assets in illiquid investments that are assets.12 This limit on illiquid investments also refers to the classification element of the rule, but we are providing guidance on how funds may comply with this requirement without engaging in full portfolio classification. In-Kind ETFs, which are exempt from the classification requirement, may look to this guidance to assist them in complying with the 15% illiquid investment limit on a permanent basis.

    12 Rule 22e-4(b)(1)(iv).

    Disclosure Amendments

    In addition to rule 22e-4, the Commission adopted certain public disclosure requirements to provide shareholders and other users with additional information on fund liquidity risk. It also adopted certain non-public reporting requirements to assist the Commission in its monitoring efforts.13 Specifically:

    13See Adopting Release, supra footnote 3, at n.120.

    • Rule 30b1-10 and related Form N-LIQUID provide non-public notification to the Commission whenever a fund's illiquid investments exceed 15% of its net assets and if its amount of highly liquid investments declines below its HLIM for more than seven days.

    • Amendments to Form N-PORT generally require a fund to report monthly to the Commission, on a non-public basis, the portfolio investments in each of the defined buckets and the fund's HLIM.14 The form also requires a fund to disclose publicly the aggregated percentage of its portfolio representing each of the four liquidity classification categories as of the end of each of its fiscal quarters.15

    14 Items B.7 and C.7 of Form N-PORT.

    15 Item B.8 of Form N-PORT.

    • The amendments to Form N-1A require a fund to disclose publicly certain information regarding the fund's redemption procedures.16

    16 Item 11(c)(7) and (8) of Form N-1A.

    • The amendments to Form N-CEN require funds to provide public disclosure about funds' use of lines of credit and interfund lending.17

    17 Item C.20 of Form N-CEN.

    B. Monitoring and Compliance Date Extension Requests

    The Commission has received numerous requests to extend the compliance date for the Liquidity Rule Requirements.18 Some have requested that the Commission delay compliance with the entire rule,19 while others requested that the Commission only delay compliance with the portfolio classification and related requirements.20 Several industry members, including trade associations (on behalf of their members) and funds, have expressed concerns regarding the difficulties that funds are facing in preparing to comply in a timely manner (i.e., by the December 1, 2018 compliance date for larger entities).21 They requested that the Commission extend the compliance date for these elements for an additional period of time ranging from six months to one year.22

    18 These comment letters (File No. S7-03-18) are available at https://www.sec.gov/comments/s7-03-18/s70318.htm.

    19See, e.g., Letter from Wellington Management Company LLP (Nov. 17, 2017) (“Wellington Letter”).

    20See Letter from the Investment Company Institute to The Honorable Jay Clayton (July 20, 2017) (“ICI Letter I”).

    21See, e.g., Supplemental Comments on Investment Company Liquidity Risk Management Programs from the Investment Company Institute (Nov. 3, 2017) (“ICI Letter II”); Letter from SIFMA AMG to Chairman Jay Clayton, Commissioner Stein, and Commissioner Piwowar (Sept. 12, 2017) (“SIFMA AMG Letter”); Letter from TCW to Chairman Jay Clayton, Commissioner Stein, and Commissioner Piwowar (Sept. 15, 2017); Letter from Vanguard on Investment Company Liquidity Risk Management Programs (Nov. 8, 2017) (“Vanguard Letter”); and Letter from Nuveen LLC to Chairman Jay Clayton (Nov. 22, 2017) (“Nuveen Letter”).

    22Id.

    Since the Commission adopted rule 22e-4 and the related rule and form amendments, Commission staff has engaged actively with funds to discuss complex compliance and implementation challenges and evaluate operational issues relating to portfolio classification. The staff also has met with third-party service providers (“service providers”) who expect to assist fund groups in implementing the classification requirements of the rule. Based on this staff engagement, we have observed that: (1) Due to a lack of readily available market data for certain asset classes (e.g., fixed income), the implementation of the portfolio classification requirement will be heavily dependent on service providers to provide funds with scalable liquidity models and assessment tools that are necessary for bucketing and reporting (see “Role of Service Providers” below); (2) fund groups believe that full implementation of service provider and fund systems will require additional time for further refinement and testing of systems, classification models, and liquidity data, as well as for finalizing certain policies and procedures (see “Systems Readiness” below); and (3) funds are facing compliance challenges due to questions that they have raised about the Liquidity Rule Requirements that may require interpretive guidance (see “Interpretive Questions” below).23

    23 As of the date of this release, the staff has responded to some requests for interpretive guidance the Commission received. The staff is also publishing additional interpretive guidance in conjunction with this release. Due to the tiered nature and complexity of the rule's implementation process, we expect to receive additional requests for guidance in the future, and will respond to them accordingly.

    Role of Service Providers

    Based on our staff's engagement, we understand that market data gaps and the need to develop efficient and effective systems for liquidity classification and reporting are leading many fund groups to rely extensively on technology tools developed by service providers.24 It is our understanding that these tools will collect relevant data, feed that data and other related information into liquidity models and assessment tools, and then provide the resulting information to the funds. To reasonably rely on these tools, fund groups have told our staff they expect to conduct significant diligence before determining which service provider systems to use and whether to build out some form of proprietary liquidity assessment and classification systems.25 In the Adopting Release, we discussed the appropriate role of service providers in funds' liquidity risk management programs, and provided guidance on the type of due diligence and oversight we expect that funds would provide when using such service providers.26 This diligence and oversight would take time to accomplish upon inception and on an ongoing basis.

    24See ICI Letter II (reporting a survey of its members that found that a large majority of respondents (91%) are considering using a service provider).

    25 For example, we understand that fund groups expect to conduct extensive classification system testing and model validation, including the installation of cybersecurity and disaster recovery protections, before these systems are usable for compliance with Commission rules.

    26See Adopting Release, supra footnote 3, at text following n.323 (encouraging program administrators for funds that choose to rely on service providers for liquidity risk management to maintain oversight of these service providers by: (1) Reviewing the quality of the liquidity data received from service providers; (2) reviewing the relevant methodologies and metrics used by service providers to determine the effectiveness of the data to inform or supplement the fund's consideration of its portfolio holdings' liquidity characteristics, and (3) assessing whether any modifications to an “off-the-shelf” service provider liquidity model are necessary to accurately reflect the liquidity characteristics of the fund's portfolio investments).

    While the fund groups with whom our staff has met vary in their degree of dependency on service providers for classification, we understand that virtually all will rely on such service providers to a significant degree. It is our understanding that many will rely heavily on the liquidity data and tools provided by these service providers, while others may use service providers largely as a source of trading and other market information that will feed into the funds' internal classification systems. We also understand that many fund groups will use service providers to assist with the reporting obligations under the rule, which may be accomplished more efficiently through third party systems, where funds benefit from the service provider's technology and economies of scale. Similarly, we understand that even for those funds that may be able to gather market data on their own or develop liquidity assessment tools internally, they may rely on service provider systems and tools to the extent it is more cost-effective to do so. We also understand that, because service providers vary in the level of data they currently have about different asset classes, some funds may need to contract with multiple service providers to gain access to the trading and market information necessary to classify all of their investments or assume responsibility for certain investments for which service providers do not currently provide classification data. In sum, we expect that virtually all fund groups will rely on service providers to some extent in meeting their obligations under the Liquidity Rule Requirements.

    Systems Readiness

    As a consequence of this heavy reliance on service providers, those requesting a later compliance date have focused primarily on the readiness of service providers to deploy fully-functional products to assist funds with their classification obligations.27 In meeting with funds and service providers, the staff has learned that most of the service providers that plan on offering liquidity data and assessment tools to assist with classification still have gaps in the investments that they cover. For example, most do not currently have the ability to assess effectively the liquidity of certain asset classes, such as over-the-counter derivatives and certain fixed income securities.28 For most of these remaining asset classes, market and trading data is more limited or unavailable and thus many plan to create models to evaluate the liquidity of these investments based on the limited data available and other information, such as the structural characteristics of the asset and analysis of comparable securities. Accordingly, we understand that under current timelines, most service providers' products will not provide full coverage for all asset classes until the end of the first quarter of 2018 or perhaps later.29 Two trade associations expressed concern that, without a compliance date extension, the challenges in building classification systems would shorten the time for liquidity model validation, testing, service provider oversight, and implementing cybersecurity and disaster recovery protections for the new technology-dependent liquidity risk management programs.30

    27See ICI Letter I (noting that most funds will engage third-party service providers to help with classification and that those service providers will not have mature products for fund groups to evaluate for some time); see also SIFMA AMG Letter (noting that the lack of readiness on the part of service providers makes it difficult for funds to make “build or buy” decisions regarding their classification systems).

    28See ICI Letter II (noting that certain investment types not yet covered by one or more service providers include asset-backed securities, mortgage-backed securities, preferred securities, bank loans, and to-be-announced (TBA) securities).

    29See ICI Letter II (discussing a survey of members which found that 73% of respondents did not believe that service providers' offerings will be sufficiently mature for funds to make an informed selection until 2018, with 37% of respondents believing that it will take until the second quarter of 2018 or beyond).

    30See SIFMA AMG Letter (arguing that a compliance date extension is necessary to give funds time to implement cybersecurity and disaster recovery protections). See also ICI Letter II (discussing the need for a compliance date extension in order to test the classification models of service providers).

    Fund groups have informed our staff that they are not able to evaluate fully the liquidity assessment tools and market data offered by these service providers until the buildout of coverage for asset classes and related models is complete.31 In addition, even for asset classes where service provider offerings are currently available, fund groups have informed us that different service providers' liquidity assessments of certain securities have been unexpectedly disparate.32 This has led to further delays as fund groups seek to evaluate the cause of the differences between service providers' data and assessment tools (including underlying models and assumptions), and attempt to determine whether such tools are reliable and effective.33 As a consequence, our staff understands that many fund groups have not been able to make significant progress in finalizing the selection of their service provider(s), and do not expect to be able to do so in the near term.34 Once service provider selection is completed, fund groups then expect to evaluate the need for additional internal systems to implement their classification programs, and then to build out those systems as needed.

    31See ICI Letter II (noting that it will take two to six months for fund complexes to select a service provider once they can evaluate their offerings, and an additional three to nine months to “onboard” the vendor; also noting that fund complexes will not be in position to complete other critical implementation work (e.g., conducting an initial liquidity risk assessment for all funds, determining whether a fund qualifies as a “primarily highly liquid fund,” and determining an appropriate HLIM for applicable funds). Only when all of this work is complete will fund complexes be in a position to present substantially complete liquidity risk management programs (able to perform full classification) to their boards for approval, which funds expect will take place over multiple meetings with final approval occurring after the program is substantially complete, adding additional months to the process).

    32See ICI Letter II (noting an evaluation of sample output from five service providers' current offerings, which showed a fund's liquidity classifications, when run through multiple service providers' models, may differ widely, and pointing in particular to scenarios where, depending on the vendor used, analysis of a large high yield bond fund's portfolio resulted in ranges from 7% to 95% for the fund's highly liquid bucket).

    33See ICI Letter II (describing its September 2017 survey results of selected members where the majority of respondents cited multiple areas in which service providers need to do additional work, including gaps in asset coverage, improving the quality of underlying methodologies, improving the depth, breadth and quality of data, and improving the user interface/delivery of data).

    34Id. The ICI also stated that, beyond the survey results, additional factors suggested even more time would be necessary due to challenges that may emerge in the coming months, given that hundreds of fund complexes will be performing due diligence on and attempting to onboard the same handful of service providers at the same time. Providing the requested delay will allow for a smoother onboarding of the new services for both funds and service providers.

    In general, the service providers with whom the staff has met have indicated that they expect to have tools and market data for all asset classes available before the current compliance date of the rule, though they are not complete yet. They also generally indicated that they expected to have products with complete asset coverage by the first or second quarter of 2018. They also informed our staff that entering into contracts and onboarding fund groups are progressing at different paces and that fund group classification systems similarly are in various stages of development and readiness. The service providers have also acknowledged that significant disparities can exist between service providers in assessing the liquidity of the same security as a result of different models, market data, or assumptions used. The service providers informed our staff that they believed their products generally would be ready in time for most funds to meet the current compliance date of the rule, though some of the fund groups with whom they have engaged suggested that additional time may be needed to implement the required classification process and related program and reporting requirements.

    Fund groups have also told our staff that they generally plan to develop processes and/or systems to provide service providers with fund-specific portfolio information relevant to classification and to provide ongoing input and oversight over any classification information derived from service provider tools. These data provision and oversight elements require additional processes or system modifications, or both, that are currently being evaluated as the service providers' offerings near completion and also may require some customization by service providers or fund groups.35 Finally, for asset classes where trading and market data is constrained, some fund groups and service providers have told our staff that they are building models to more qualitatively assess liquidity, which may take additional time to develop and test. The ability for a fund to classify its assets is a foundation for other aspects of the rule, such as establishing the HLIM, and thus funds generally need to establish a classification system before finalizing policies and procedures for other aspects of the rule.36

    35See ICI Letter II (noting because the liquidity rule is new, funds will need to complete an extensive assessment of the new services and how they will be incorporated into existing oversight programs).

    36See supra footnote 30.

    One association also noted that additional complexity and time pressures exist for fund groups that engage sub-advisers for portfolio management, relating to sharing and reconciling classification information across multiple sub-advisers each of whom may have their own liquidity classification methodologies and systems.37 We also understand that additional complexity results when a fund group uses multiple sub-advisers for portfolio management of certain funds and that funds with sub-advisers require additional coordination (and thus additional technology infrastructure) for portfolio classification and to potentially reconcile classification information that may be distributed among various investment advisory firms.

    37See SIFMA AMG Letter. See also Wellington Letter, noting that more time is necessary and appropriate due to the additional complications that sub-advised funds face in implementing the rule.

    Interpretive Questions

    In meeting with fund groups and service providers, our staff has learned that many of the most difficult interpretive questions relating to the rule have only become apparent as funds have worked through the design, evaluation, and testing of the new and complex systems that will support compliance with their liquidity risk management programs. As a consequence, funds are still in the process of identifying certain issues that may need interpretive guidance in order to complete the build-out of their classification systems and to design and draft policies and procedures implementing their programs.38 One association has requested that Commission staff provide interpretive guidance on certain questions relating to classification, and stated that any such interpretive guidance may shape how its members design certain aspects of their classification systems.39 Funds have indicated that they will need time to evaluate and incorporate any such guidance as they implement the new systems and policies and procedures for managing liquidity risk required under the rule.

    38See supra footnote 22.

    39See SIFMA AMG Letter.

    In addition, fund groups have cautioned that if no compliance date extension is provided, fund groups may have to incur the expense of implementing classification once now and then again to make any necessary changes to classification systems after any interpretive guidance on new questions has been issued.40 However, if an extension is provided, funds could take the time to evaluate any guidance provided in connection with building their systems, thereby avoiding the costs of rushed builds or redone systems.

    40See SIFMA AMG Letter. As noted above, Commission staff is publishing guidance today on the classification process and may publish additional guidance in the future if it deems it appropriate.

    Finally, as we discussed in the Adopting Release, we understood that service providers may have some role in assisting funds in complying with the liquidity rule requirements, especially in providing data and collating data for reporting.41 Nonetheless, we believed that many fund groups would build and create their own classification methodologies, considering that funds have significant practical experience in observing the liquidity of the assets that they trade.42 As discussed above, however, our staff has learned that with respect to most funds, implementation is more complex than anticipated and the role for service providers is going to be more extensive than we had originally understood, thereby resulting in even more complexity and raising interpretive questions.

    41See Adopting Release, supra footnote 3, at n.323 and accompanying text.

    42See Adopting Release, supra footnote 3, at text following n.709.

    We believe that the interpretive guidance our staff has provided, and any additional guidance it may provide in the future, should ease the complexity of compliance, and may result in more funds refining their classification systems and liquidity assessment models, whether developed internally or when using vendor-provided tools. Our staff also will consider providing future interpretive guidance as needed to assist funds as they comply with the requirements of the rule.

    C. Extension of Certain Elements of the Rule

    Today, we are extending by six months the compliance date for the rule's portfolio classification and certain related requirements. Based on the staff's engagement with fund groups and service providers, as well as the representations of the commenters discussed above, we believe that a six-month extension of the compliance date for the portfolio classification and certain related requirements that are dependent on the classification requirement is appropriate. We believe this additional time will allow fund groups and service providers to adequately address these complex and technology-dependent requirements and promote a smooth and efficient implementation of the rule.

    In providing this extension, we considered not only the issues discussed above, but also the objective of the Liquidity Rule Requirements more generally in advancing effective liquidity risk management across the fund industry. As a result, while we are extending the compliance date for the portfolio classification and certain related requirements, we are limiting such extension to six months, and we are maintaining the existing compliance dates for the other aspects of the rule. Indeed, two provisions of the rule that are at the heart of the investor protection benefits that the rule seeks to achieve—the requirement that a fund institute a liquidity risk management program and the 15% illiquid investment limit—will go into effect as planned.

    1. Extension of Portfolio Classification, HLIM, and Related Reporting Compliance Dates

    In light of the concerns discussed above, the Commission believes that it is appropriate to extend the compliance date for the portfolio classification requirement of rule 22e-4 and the HLIM requirement. Rule 22e-4 defines “highly liquid investments” that count towards the HLIM requirement by referencing the broader classification framework. For a fund to establish and monitor an HLIM, it will need to determine which investments meet the definition of highly liquid investments as defined by the rule and then determine and monitor its HLIM as compared to that bucket of investments.43 Therefore, a fund's ability to comply with the HLIM requirement is dependent on the fund's ability to classify its highly liquid investments under the rule. Funds have experience following the 15% guideline restricting purchases of illiquid assets when considering whether to purchase additional illiquid assets. By contrast, the HLIM is a new requirement that funds have not previously been required to establish and about which funds have not received previous Commission guidance. In order to implement the HLIM independent of the full classification requirements, funds would have to establish policies, procedures, and systems to determine their highly liquid investments so that they may be able to determine and monitor their HLIM. In addition, in adopting the 15% illiquid investment limit, we specifically recognized that it was possible to comply with such limit without classification for a category of funds, the In-Kind ETFs.44 The HLIM, on the other hand, is a new requirement specifically tied to classification for which there has been no previous Commission guidance. As a result, we believe that even with guidance, implementing the HLIM and identifying highly liquid investments would be more likely to require funds to either incur significant expenses to build out an interim system or redo certain elements of their systems as they implement the full portfolio classification requirements, or both. Therefore, we believe it is appropriate to extend consistently the compliance date for both the portfolio classification and HLIM requirements.

    43See Rule 22e-4(a)(6) (defining highly liquid investments as “any cash held by a fund and any investment that the fund reasonably expects to be convertible into cash in current market conditions in three business days or less without the conversion to cash significantly changing the market value of the investment” as determined pursuant to rule 22e-4(b)(1)(ii)).

    44See Adopting Release, supra footnote 3, at nn.745 and 836 and accompanying text.

    As a consequence of the delay in portfolio classification and HLIM, the Commission is also extending the compliance date for the classification and HLIM reporting requirements of Forms N-PORT and N-LIQUID.45 Form N-PORT requires a fund to disclose information regarding the fund's HLIM and individual portfolio holding liquidity classifications on a non-public basis.46 Currently, it also requires a fund to disclose publicly the aggregate percentage of its portfolio that is highly liquid, moderately liquid, less liquid, and illiquid on a quarterly basis.47 Part D of Form N-LIQUID requires non-public notifications to the Commission when the fund's HLIM is breached for more than a specified period of time.48 Because the information required by these items of Form N-PORT is related to the fund's classification of its investments, a delay in the classification requirement would also require a delay for these items. Similarly, because notifications on Part D of Form N-LIQUID are tied to the HLIM, the Commission believes that revising the compliance date for these notifications is also necessary.49

    45 We are not delaying reporting to the Commission information required by Form N-CEN related to lines of credit, and inter-fund lending and borrowing. It is our understanding that information related to lines of credit and inter-fund lending and borrowing activities is currently readily available to funds. Therefore, we do not believe that a delay is necessary and are not revising the compliance date for Form N-CEN. Because we are delaying compliance with the classification requirement of rule 22e-4(b)(1)(ii) and the HLIM requirement of rule 22e-4(b)(1)(iii), the in-kind status of certain ETFs may be noted as “N/A” on Form N-CEN until funds are required to comply with those requirements.

    46 Items B.7 and C.7 of Form N-PORT.

    47 Item B.8 of Form N-PORT.

    48 Part D of Form N-LIQUID.

    49 We are not delaying the implementation of rule 30b-10 (the obligation to file Form N-LIQUID or the other parts of the form). The parts of the form that are not being delayed (parts A, B, and C) relate to breaches of the 15% illiquid investment limit, which as discussed below is not being delayed. Accordingly, funds should file Form N-LIQUID reports related to such incidents as scheduled.

    Finally, we are providing a six-month extension of the compliance date for the recordkeeping requirements related to the elements of rule 22e-4 we are delaying today,50 though we are not delaying the recordkeeping requirement related to the liquidity risk management program itself, the 15% illiquid investments restriction, or the board designation of the program administrator.51

    50 We are extending the compliance date for the recordkeeping requirements of rule 22e-4(b)(3)(i) that relate to classification as well as the recordkeeping requirements of rule 22e-4(b)(3)(iii) related to the HLIM requirements. Similarly, we are delaying the recordkeeping requirements of rule 22e-4(b)(3)(ii) related to the materials provided to the fund's board regarding the liquidity risk management program.

    51 Rule 22e-4(b)(3)(i).

    The Commission seeks comment on the delay in the classification, HLIM, and related reporting and recordkeeping requirements.

    • Should the Commission provide an extension in the compliance dates for the classification requirement? Why or why not?

    • Should the Commission provide an extension in the compliance dates for the requirements related to classification such as the HLIM requirement? Is it feasible to let the HLIM requirement go into effect without the related classification requirement?

    • Should we delay the liquidity-related reporting requirements of Form N-PORT and Part D of Form N-LIQUID?

    2. Length of Extension

    In light of the staff's monitoring and conversations with service providers and fund groups, as well as the commenters' statements regarding the projected timelines to effectively implement the classification requirement, we believe that a six-month extension is more appropriate than a one-year extension. One association stated that a compliance date extension of at least six months is necessary for the portfolio classification and related elements of the rule,52 and the other requested that the Commission extend the compliance date at least one year for these requirements.53

    52See SIFMA AMG Letter.

    53See ICI Letters I and II. Several fund groups supported the ICI's one-year extension request. See, e.g., the Nuveen and Vanguard Letters.

    We believe that a six-month period should provide sufficient time for funds to comply with the elements of the rule we are extending today. Specifically this should provide enough time to allow for service providers to provide effective classification tools and data, as well as for funds to integrate and implement these tools and certain related requirements into their programs and gain board approvals. We considered delaying the compliance date for one year rather than six months. As discussed above, many funds believe that service providers will have sufficiently mature offerings for funds to make informed service provider selections by approximately the second quarter of 2018. If funds select their service providers by June of 2018, we believe that they will be able to effectively comply with all of the Liquidity Rule Requirements, including classification, by the revised compliance dates. Therefore, we do not believe a one-year extension is necessary.54

    54See supra footnote 28.

    We previously adopted temporary rule 30b1-9(T), which will require larger entities to maintain in their records the information that is required to be included in Form N-PORT, in lieu of filing reports with the Commission, until April 2019. As a result, larger entities that previously would have been required to submit their first reports on Form N-PORT on Electronic Data Gathering, Analysis, and Retrieval (“EDGAR”) by July 30, 2018 would submit their first reports on EDGAR by April 30, 2019.55 Because we are revising the compliance date for the disclosures related to liquidity on Form N-PORT, larger entities will not need to include those disclosures in their reports on Form N-PORT until July 30, 2019.56

    55See Investment Company Reporting Modernization, Investment Company Act Release No. 32936 (Dec. 8, 2017) [82 FR 58731 (Dec. 14, 2017)] (“N-PORT Release”).

    56 Smaller entities will be subject to classification, HLIM, and the related requirements we are delaying today on December 1, 2019, but would not be required to file that information through EDGAR on Form N-PORT until April 30, 2020.

    We request comment on the six-month compliance period extension that we are adopting today.

    • Is six months a sufficient amount of time for funds to implement classification and other related requirements we are delaying today? If not, how much additional time would funds need to comply and why?

    • Should we provide a shorter compliance date extension, such as three months, or none? If so, why?

    • Should we provide an additional six-month (or other period) extension in the compliance date for smaller entities, so that their liquidity classification obligations also align with their N-PORT filing requirements?

    3. Board Oversight

    We are providing a six-month extension of the compliance date for board approval of the liquidity risk management program and the related annual review requirements.57 Although funds will need to implement liquidity risk management programs as originally scheduled, these programs need not, for now, include the rule's classification or HLIM requirements. Other than the elements that are not being delayed, funds may implement a program that achieves the goals laid out in the rule using any additional elements they view as reasonable during the period of the compliance date extension, but need not get board approval of that program until the end of the extension period. Because the Commission is granting funds additional time to incorporate the delayed elements into their programs, we believe that it would be unnecessarily burdensome to require the board to review the fund's program before funds incorporate all elements of the program. Similarly, we believe it is unnecessarily burdensome to require the board to conduct annual reviews of the program prior to the complete development of the fund's program.

    57 Rule 22e-4(b)(2)(i) and (iii).

    However, as we stated in the Adopting Release and as we continue to believe, requiring that the board designate a program administrator independent from portfolio management is necessary for the program to be administered with sufficient independence.58 We also expect that having a designated program administrator will better enable funds to create and operate the liquidity risk management program, and facilitate implementation of the delayed aspects of the rule when they go into effect. Accordingly, we are not delaying the requirement for the board to designate the program administrator.

    58See Adopting Release, supra footnote 3 at n.814 and accompanying text. Rule 22e-4(b)(2)(ii).

    The Commission seeks comment on the delay of these board oversight requirements.

    • Should we provide this delay to the board approval requirements? Why or why not?

    • Should we instead require the board to approve the initial programs without the classification and related requirements? If so, why?

    • Should we provide the delay to the board's annual review requirement?

    4. Liquidity Risk Management Programs

    We are not extending the compliance date for the general obligation that each fund implement a liquidity risk management program, including the required assessment, management, and periodic review of the fund's liquidity risk.59 We believe that implementing a liquidity risk management program, even in the absence of the classification and HLIM requirements, will enhance fund liquidity risk management practices and provide protection to investors.60

    59 Rule 22e-4(b) requires each fund and In-Kind ETF to adopt and implement a program that is reasonably designed to assess and manage its liquidity risk. See rule 22e-4(b)(1)(i).

    60 Accordingly, by December 1, 2018, larger entities will be required to adopt and implement a written liquidity risk management program that is reasonably designed to assess and manage its liquidity risk. See rule 22e-4(b). Smaller entities will be required to comply on June 1, 2019. The program must include policies and procedures reasonably designed to incorporate the elements articulated in rule 22e-4(b)(1)(i) related to a fund's assessment, management, and periodic review of its liquidity risk. The fund's board must also designate a program administrator pursuant to rule 22e-4(b)(2)(ii).

    While we understand that there are issues with the classification requirement, we are unaware of any claims that funds are or anticipate experiencing difficulties in implementing a liquidity risk management program by the original compliance date.61 We understand that many funds already have in place systems to assess and manage the liquidity of their funds. In addition, both trade associations that commented indicated that they believed that compliance with the overall obligation to implement a liquidity risk management program under the rule was feasible by the original compliance date.62 We believe that funds can establish a program that assesses, manages, and reviews their liquidity risk without the elements we are delaying today, using elements they view as reasonable to achieve these goals during the period of the compliance date extension.

    61 The requirement for funds that engage in redemptions in-kind to implement policies and procedures under rule 22e-4(b)(1)(v) (and their related recordkeeping requirements in rule 22e-4(b)(3)) and the requirements for unit investment trusts (“UITs”) to comply with rule 22e-4(c) related to a UIT's liquidity assessment and related recordkeeping requirements will go into effect as originally scheduled. We do not believe that these requirements pose a burden on funds such that a delay in compliance would be necessary or appropriate, and some commenters suggested that they could go into effect as scheduled. See, e.g., SIFMA AMG Letter.

    62See SIFMA AMG Letter and ICI Letter I.

    5. 15% Illiquid Investment Limit and Guidance

    We are not extending the compliance date for the 15% illiquid investment limit of rule 22e-4, or the related board and Commission reporting requirements.63 Limiting the amount of illiquid investments held by open-end funds is critical to effective liquidity risk management and is a cornerstone of rule 22e-4. As stated in the Adopting Release, “a limit on funds' illiquid investments should be a central element of managing open-end funds' liquidity risk, which in turn would further the protection of investors.” 64

    63 Rule 22e-4(b)(1)(iv); Parts A, B, and C of Form N-LIQUID.

    64 Adopting Release, supra footnote 3, at text following n.757.

    While we agree that additional time is necessary to efficiently and effectively comply with the portfolio classification and certain related requirements of the rule, we do not believe that complying with the 15% illiquid investment limit presents challenges that warrant a similar delay in compliance. Funds have experience following the previous guideline to limit an open-end fund's aggregate holding of illiquid assets to no more than 15% of the fund's net assets.65 Although the final rule's definition of illiquid investments differs in some respects from the previous 15% guideline definition of illiquid asset, we believe funds have gained significant experience in evaluating and identifying illiquid assets consistent with the prior guidance, and should be able to apply that experience and associated systems in complying with the 15% limit in rule 22e-4.66 In addition, the guidance we provide below on complying with the 15% illiquid investment limit for funds that do not engage in full portfolio classification during the compliance extension period should assist such funds in their compliance with this requirement, and reduce the challenges associated with its implementation.

    65 Adopting Release, supra footnote 3, at n.38 and accompanying text.

    66 Adopting Release, supra footnote 3, at n.836 and accompanying text (noting that In-Kind ETFs are exempt only from the classification and HLIM requirements of rule 22e-4).

    While this limit on illiquid investments refers to the classification element of the rule, as we discuss below, we are providing guidance on how funds can comply with this requirement without engaging in full portfolio classification during the period of the extension we are providing today.67 As noted above, In-Kind ETFs are required to abide by the 15% illiquid investment limit but are not required to classify their investments.68 We expect many In-Kind ETFs will rely on the guidance provided below, or use other reasonable methods, to identify and monitor their illiquid investments during the period of the compliance date extension and thereafter. Accordingly, we believe that funds can effectively comply with the 15% illiquid investment limit during the compliance extension period.

    67 Rule 22e-4(b)(1)(iv).

    68 Rule 22e-4(b)(1)(ii).

    We are providing the following guidance to assist In-Kind ETFs and funds not engaging in full portfolio classification during the compliance extension period in identifying illiquid investments as a part of their application of the 15% illiquid investment limit.69 We believe one reasonable method for a fund to comply with these requirements is to preliminarily identify certain asset classes or investments that the fund reasonably believes are likely to be illiquid (“preliminary evaluation”). We expect that the fund could base this reasonable belief on its previous trading experience (including its experience in the investment's typical market depth and price impact when trading), on its understanding of the general characteristics of the asset classes it is preliminarily evaluating, or through other means. A fund could choose to determine that certain investments identified in such asset classes that it purchases are illiquid based solely on this preliminary evaluation, and not engage in any further analysis under the rule at that time.70 This evaluation need not occur prior to the trade being placed. Alternatively, if the preliminary evaluation establishes a reasonable basis for believing that an investment is likely to be illiquid, but the fund wishes to further evaluate its status, the fund may then, as a secondary step, determine whether that investment is illiquid through the full classification process set forth in the rule (“secondary evaluation”). Investments in asset classes the fund acquires that it does not reasonably believe are likely to be illiquid would not need to be classified when performing this preliminary analysis.

    69See Rule 22e-4(b)(1)(iv) (“No fund or In-Kind ETF may acquire any illiquid investment if, immediately after the acquisition, the fund or In-Kind ETF would have invested more than 15% of its net assets in illiquid investments that are assets. . . .”).

    70 Rule 22e-4(b)(1)(ii).

    Funds could automate such a preliminary evaluation of asset classes or investments, and they could base that evaluation on the general characteristics of the investments the fund purchases. For example, in establishing the list of asset classes or investments that the fund believes have a reasonable likelihood of being illiquid, the fund could take into account the trading characteristics of the investment (for example, whether it is a restricted security or has structural liquidity limitations, the trading history of the asset class, or whether the investment typically requires significant negotiations to trade) and use such characteristics to form the reasonable belief of illiquidity. We expect that a fund making use of preliminary evaluation would conduct periodic testing of the results of the preliminary evaluations to determine whether they continue to be accurate as part of their required review of the adequacy and effectiveness of the liquidity risk management program's implementation.

    In evaluating the likelihood of an asset class or investment being illiquid, we do not believe it would be reasonable to assume that a fund is only selling a single trading lot when looking at the market depth of the asset or class. However, a fund would not need to evaluate the actual size of its holdings in the asset class or engage in the full process of evaluating its reasonably anticipated trading size for the asset class under the rule. Instead, a fund could use any reasonable method in evaluating the market depth of the asset classes or investments it identifies as likely being illiquid in the preliminary evaluation.

    Although the illiquidity status of an investment is generally evaluated upon acquisition (and then at least monthly thereafter),71 certain events may lead an In-Kind ETF or fund not yet subject to the classification requirement to re-evaluate the liquidity status of an investment more frequently. For example, a reasonable approach for a fund to re-evaluate the liquidity of an investment might be by identifying in its policies and procedures in advance certain events that it reasonably expects would materially affect the investment's classification. Reasonable policies and procedures could limit such events to those that are objectively determinable (e.g., a trading halt or delisting of a security, an issuer or counterparty default or bankruptcy, significant macro-economic developments (such as a sovereign default), or events like extraordinary natural disasters or political upheavals, for funds with concentrated geographic exposures). This intra-month review would not create a de facto ongoing review requirement for classification. However, a fund generally should regularly monitor the amount of its illiquid investments to ensure that it does not exceed the limit as a result of the purchase or redemption activity of the fund or changes in the value of the fund's holdings.

    71See rule 22e-4(a)(8) which references rule 22e-4(b)(1)(ii). An “illiquid investment” is defined as being determined, in part, through the classification process, which requires at least monthly review. Though we are revising the compliance date for the classification provisions of the rule, we are not revising the compliance date for those provisions related to the 15% illiquid investment limit, including the related monthly (or more frequent) review requirement in rule 22e-4(b)(1)(ii) referenced in 22e-4(a)(8), subject to the guidance in this release.

    We believe that the method discussed in the guidance above would be a reasonable approach for a fund to help assure itself that it has not violated the 15% illiquid investment limit during the intra-month period between scheduled classifications. However, funds may use reasonable approaches other than the one described in this guidance as well.

    D. Compliance Date Extension Chart

    The following chart identifies the provisions of the Liquidity Rule Requirements that we are delaying and those we are not. For the items subject to the six-month extension, the compliance date will be June 1, 2019 for larger entities and December 1, 2019 for smaller entities. For the provisions that we are not delaying, the original compliance dates of December 1, 2018 for larger entities and June 1, 2019 for smaller entities remain in effect.

    Requirements not subject to extension Requirements subject to extension Rule 22e-4: 72 Rule 22e-4: 73 • Liquidity Risk Management Program [paragraph (b)].
  • ○ Assessment, management, and periodic review of liquidity risk [paragraph (b)(1)(i)].
  • ○ Illiquid investments [paragraph (b)(1)(iv)].
  • ○ Redemptions in Kind [paragraph (b)(1)(v)].
  • ○ Board Designation of Program Administrator [paragraph (b)(2)(ii)].
  • • UIT Liquidity [paragraph (c)].
  • • Classification [paragraph (b)(1)(ii)].74
  • • Highly liquid investment minimum [paragraph (b)(1)(iii)].
  • • Board Oversight.
  • ○ Initial approval of the liquidity risk management program [paragraph (b)(2)(i)].
  • ○ Annual Board Reporting [paragraph (b)(2)(iii)].
  • N-LIQUID N-LIQUID • Part A. General Information.
  • • Part B. Above 15% Illiquid Investments.
  • • Part C. At or Below 15% Illiquid Investments.
  • • Part D. Assets that are Highly Liquid Investments Below the HLIM.
    N-CEN: N-PORT: • Item C.20. Lines of credit, interfund lending, and interfund borrowing.
  • • Part E.5. In-Kind ETF.
  • • Item B.7. Highly Liquid Investment Minimum.
  • • Item B.8. Liquidity aggregate classification information.
  • • Item C.7. Liquidity Classification Information.
  • II. Procedural and Other Matters

    The Administrative Procedure Act (“APA”) generally requires an agency to publish notice of a rulemaking in the Federal Register and provide an opportunity for public comment.75 This requirement does not apply, however, if the agency “for good cause finds . . . that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” 76

    72 The recordkeeping requirements of rule 22e-4(b)(3) related to these elements are similarly not subject to extension. See supra footnote 50 and accompanying text.

    73 The recordkeeping requirements of rule 22e-4(b)(3) related to these elements are similarly subject to extension. See supra footnote 49.

    74 As discussed in footnote 71, we are not delaying the aspects of classification that relate to the implementation of the illiquid investment limit, subject to the guidance in this release.

    75See 5 U.S.C. 553(b)-(c).

    76 5 U.S.C. 553(b)(3)(B).

    We have determined to adopt this interim final rule delaying certain of the Liquidity Rule Requirements. Specifically, the Commission is extending the compliance date for the classification requirement of rule 22e-4(b)(1)(ii) except to the extent referenced in rule 22e-4(a)(8).77 The Commission also is extending the compliance date for rule 22e-4(b)(1)(iii) pertaining to the HLIM. Furthermore, the Commission is extending the compliance date for rule 22e-4(b)(2)(i) and (iii) pertaining to the requirement that fund boards initially approve the fund's liquidity risk management program as well as the requirement that the fund's board review annual reports on the operation of the program and the program's adequacy and effectiveness of implementation from the fund's program administrator. Finally, the Commission is extending the compliance date for the liquidity-related reporting requirements of Form N-PORT as well as Part D of Form N-LIQUID.

    77See supra footnote 71.

    The trade associations expressed concern that, because of the significant investment funds will have to incur and the time commitment involved, funds will have to continue to build their classification technology infrastructure well before the compliance date of the Liquidity Rule Requirements, and they therefore requested that the Commission make any extension in the compliance date as quickly as possible. The SIFMA AMG Letter argued that a prompt extension of the compliance date for the classification requirement of the rule will “provide the industry with the breathing room it needs to build, implement and test the necessary systems in an orderly and prudent manner” and the ICI Letter I echoed the sentiment, asking for “[q]uick and decisive action—with respect to delaying the rule's classification requirements.”

    The Commission has determined that funds are encountering significant challenges in their efforts to achieve timely compliance with the classification and related requirements of rule 22e-4 and related forms. Most notably, as discussed in detail in section I.B above, compliance with these requirements entails service providers and funds building complex, technology-dependent liquidity classification systems. These systems are not yet complete nor are they projected to be fully developed and tested by the current compliance date. We are basing this judgment on Commission staff outreach to funds and service providers, and information they have provided us discussed above. Based on this information, we believe the projected timelines for completing the development of classification tools, along with the time necessary to effectively evaluate, implement and test new systems and infrastructure, further enhance liquidity programs, and obtain approval from fund boards justify a six-month delay limited to the classification and related requirements. The scope of the difficulties that are being experienced in developing liquidity classification systems, the extent of fund reliance on external service providers to provide liquidity classification solutions, and the substantial number of implementation questions that have been posed, are matters that were not anticipated in the Adopting Release.

    As discussed previously, providing immediate certainty regarding this compliance date extension is critical because funds currently are evaluating and making decisions on the source and structure of their classification systems in an effort to meet the original compliance date. By providing an extension, funds may take the time to evaluate the staff interpretive guidance that is being issued along with this release in connection with building their systems, thereby avoiding the costs of expediting the construction of their systems (in dollar value and/or reduced quality) after having reviewed the staff interpretive guidance or revising their systems as may be occasioned by any additional subsequently-issued staff or Commission guidance. Because funds are making decisions now as to the structure of their programs and the service providers they will use, funds need to have certainty that there will be a six-month delay of the classification and related requirements so that they can take this time to evaluate and design the necessary systems and infrastructure and evaluate the need for and choice of a service provider to assist in this process. This certainty will allow them time to adjust their implementation process accordingly and avoid costs of rushed implementation and potential revisions to their programs and use or choice of service providers after service providers complete their product offerings, which costs could be passed on to the fund's investors. Waiting until after the notice and comment period to make the necessary delay effective would undermine this effort to give certainty for these complex technology infrastructure timelines and thus we believe it would be impracticable, unnecessary, and contrary to the public interest.

    For these reasons, the Commission finds that good cause exists to dispense with advance notice and comment regarding the delay of the classification and related requirements outlined above.78 The Commission and its staff will continue to monitor implementation of the Liquidity Rule Requirements to determine if further action is necessary to address questions or issues that may arise in addition to the delay in compliance we are providing today and to address interpretive issues as they arise.

    78See section 553(b)(3)(B) of the Administrative Procedure Act (5 U.S.C. 553(b)(3)(B)) (an agency may dispense with prior notice and comment when it finds, for good cause, that notice and comment are “impracticable, unnecessary, or contrary to the public interest”). This finding also satisfies the requirements of 5 U.S.C. 808(2) (stating that if a federal agency finds that notice and public comment are impractical, unnecessary or contrary to the public interest, a rule shall take effect at such time as the federal agency promulgating the rule determines). This section would allow the rule amendment to become effective notwithstanding the requirement of 5 U.S.C. 801. The interim final rule also does not require analysis under the Regulatory Flexibility Act. See 5 U.S.C. 604(a).

    III. Economic Analysis A. Introduction

    The Commission is sensitive to the potential economic effects of extending the compliance date for certain provisions of the Liquidity Rule Requirements. These effects include the benefits and costs to funds, their investors and investment advisers, issuers of the portfolio securities in which funds invest, and other market participants potentially affected by fund and investor behavior as well as any effects on efficiency, competition, and capital formation.

    B. Economic Baseline

    The costs and benefits of the compliance date extension as well as any impact of the extension on efficiency, competition, and capital formation are considered relative to an economic baseline. For the purposes of this economic analysis, the baseline is the regulatory framework and liquidity risk management practices currently in effect, any systems and processes that funds have already implemented in order to comply with the Liquidity Rule Requirements as adopted, and the expected changes to liquidity risk management practices assuming the compliance dates established in the Adopting Release remain in effect.

    The economic baseline's regulatory framework consists of the Liquidity Rule Requirements adopted by the Commission on October 12, 2016. With respect to current liquidity risk management market practices, the baseline remains as described in the Adopting Release, with two exceptions. First, funds are already complying with Form N-1A's requirement that they make additional disclosures about redemption practices.79 Second, we expect that funds will rely more extensively on third-party service providers to comply with the classification requirement relative to the baseline in the Adopting Release.80 Under the baseline, larger entities must comply with the Liquidity Rule Requirements by December 1, 2018, while smaller entities must comply by June 1, 2019.81 The baseline also includes funds' efforts to develop the systems and processes necessary to comply with the Liquidity Rule Requirements since the rule was adopted, but we do not have data sufficient to quantify the extent to which funds have already invested in such systems and processes.82

    79See section IV.B of the Adopting Release for a detailed discussion of funds' current liquidity risk management practices. See section III.L of the Adopting Release for a discussion of the enhanced disclosure requirements regarding redemption practices on Form N-1A.

    80See supra footnote 23 and surrounding text for a discussion of how funds will rely on service providers in complying with the Liquidity Rule Requirements.

    81See supra footnote 5 for a detailed description of larger and smaller entities.

    82 We received comment letters providing certain information, including a survey of funds, regarding fund reliance on vendor solutions and vendor readiness, see supra footnote 20. While these letters indicate that the funds surveyed are still in the early stages of developing their classification systems because of vendor readiness issues, they do not provide concrete estimates of the extent to which funds have invested in implementing portfolio classification systems. In addition, while a large number of funds with significant assets under management responded to the survey, the survey was self-reported by members of the commenter's organization and may not necessarily reflect the state of the entire fund industry.

    The primary SEC-regulated entities affected by this interim final rule are mutual funds and ETFs. As of the end of 2016, there were 9,090 mutual funds managing assets of approximately $16 trillion,83 and there were 1,716 ETFs managing assets of approximately $2.5 trillion.84 Other potentially affected parties include investors, investment advisers that advise funds, issuers of the securities in which these funds invest, and other market participants that could be affected by fund and investor behavior.

    83See 2017 ICI Fact Book, available at https://www.ici.org/pdf/2017_factbook.pdf, at 22, 170, 174. The number of open-end mutual funds includes funds that primarily invest in other mutual funds but excludes 421 money-market funds.

    84See 2017 ICI Fact Book, available at https://www.ici.org/pdf/2017_factbook.pdf, at 180, 181.

    C. Economic Impacts

    We are mindful of the costs and benefits of this interim final rule. The Commission, where possible, has sought to quantify the benefits and costs, and effects on efficiency, competition and capital formation expected to result from the compliance date extension for certain provisions of the Liquidity Rule Requirements. However, as discussed below, the Commission is unable to quantify certain of the economic effects because it lacks information necessary to provide reasonable estimates.

    Impacts on Funds

    The compliance date extension provides funds with the option to delay the implementation of a full portfolio classification system. This option allows funds to forgo some or all of the additional costs that may be associated with implementing a classification system by the compliance date in the Adopting Release,85 depending on how they choose to comply with the 15% illiquid investment limit during the compliance date extension period.86 The option to delay may also be valuable to funds because it permits them to adjust the manner in which they comply with the classification related elements of the Liquidity Rule Requirements in response to new information about implementation choices, including new technologies or classification software.87 The value of the option to delay the implementation of a full portfolio classification system for a given fund will depend on the extent to which the fund has already invested in implementing a full classification system, the remaining costs the fund expects to incur by implementing such a system by the compliance date in the Adopting Release, and the manner in which the fund would comply with the 15% illiquid investment limit during the compliance period if it chooses to exercise the option to delay.

    85See supra section I.B for a discussion of the issues funds may face in complying with the rule by the compliance date in the Adopting Release.

    86 For example, as discussed above (see supra footnote 70 and surrounding text), some funds that delay the implementation of a full portfolio classification system might comply with the 15% illiquid investment limit through the preliminary evaluation process discussed in the guidance above, which allows them to forgo most of the costs associated with the implementation of a classification system. Alternatively, some funds may choose to comply with the 15% illiquid investment limit by supplementing such an evaluation with the secondary evaluation discussed in the guidance. Funds making this compliance choice will still incur the costs of implementing systems that assess whether a given holding is an illiquid investment according to the portfolio classification requirement but will not incur the costs associated with implementing systems associated with the other portfolio classification categories.

    87See supra footnote 39 and surrounding text for an example of how funds might modify their implementation of portfolio classification systems in response to new information.

    Under the interim final rule, funds will also be able to amortize the costs of establishing systems associated with the elements of the Liquidity Rule Requirements for which the compliance date is being extended over an additional six months. As above, any change in the amortization of these costs relative to the baseline will vary with the extent to which a fund has already invested in building systems and processes to comply with these elements, whether it opts to delay its implementation of a full portfolio classification system under the interim final rule, and the manner in which the fund would comply with the 15% illiquid investment limit during the compliance date extension period. We cannot quantify these because we do not have sufficient data and cannot anticipate how funds will choose to comply with the 15% illiquid investment limit during the compliance date extension period. Funds will also save six months' worth of any ongoing costs associated with the elements of the Liquidity Rule Requirements being delayed.

    In the Adopting Release, we estimated aggregate costs associated with some of these elements. First, some portion of the aggregate onetime cost of approximately $641 million associated with the establishment of liquidity classification systems that has not already been incurred by funds will be amortized over an additional six months for funds that opt to delay the implementation of their classification systems, and those funds will not incur some portion of six months' worth of the associated ongoing annual costs, which we estimated to range from $30,000 to $2.5 million per fund complex.88 Second, while we did not individually estimate the costs associated with implementing other elements of the Liquidity Rule Requirements that are being delayed such as the establishment of an HLIM, they constitute some fraction of the $214 million we estimated as being associated with implementing the liquidity risk management program. Funds have the option to amortize the portion of these costs that has not yet been incurred over an additional six months. Funds will also not incur six months' worth of the ongoing costs associated with the delayed elements of the liquidity risk management program if they opt to delay implementation of those elements, which we estimated as ranging from $10,000 to $0.8 million depending on the size of a given fund complex. Third, the portion of the aggregate onetime costs of approximately $158 million associated with the rule's disclosure and reporting requirements on Form N-PORT that has not already been incurred by funds will be amortized over an additional six months. Funds will also not incur six months' worth of the associated aggregate ongoing annual costs, which we estimated as being approximately $3.9 million.89 Finally, funds will not have to incur six months' worth of the annual aggregate costs associated with filing Part D of form N-LIQUID, which we estimated as being $52,350.90

    88See Adopting Release, supra footnote 3, at n.1101. We assumed the classification process constitutes 75% of both onetime and ongoing costs. Estimated onetime aggregate costs of $855 million consist of approximately $641 million (75%) associated with a classification system and approximately $214 million associated with the remaining elements of rule 22e-4. Similarly, the range of ongoing costs, estimated to be $40,000 to $3.3 million, imply a range of $30,000 to $2.5 million associated with the classification system and $10,000 to $0.8 million associated with the remaining elements of rule 22e-4. We do not have sufficient data to estimate the portion of these costs that has already been incurred.

    89See Adopting Release, supra footnote 3, at n.1188-1191. We estimated the total one-time costs associated with the rule's disclosure and reporting requirements on Form N-PORT as being approximately $55 million for funds that will file reports on Form N-PORT in house and approximately $103 million for funds that will use a third-party service provider. Similarly, we estimated the total ongoing annual costs as being approximately $1.6 million for funds filing reports in house and $2.3 million for funds that will use a third-party service provider.

    90See Adopting Release, supra footnote 3, at n.1287-1288. We estimated that an average of 30 reports would be filed per year in response to an event specified on Part D of Form N-LIQUID at a total cost of $1,745 per filing, resulting in an aggregate cost of 30 × $1,745 = $52,350.

    As a result of the compliance date extension, some funds that do not already have a liquidity risk management program in place and opt to delay the implementation of a full portfolio classification system may incur additional costs, relative to the baseline, associated with the development of interim systems and processes that allow for compliance with those elements of the Liquidity Risk Requirements that are not being delayed. For example, funds that intended to base their implementation of a liquidity risk management program on portfolio classification but opt to delay the implementation of a classification system will need to establish other interim systems and processes to assess, manage, and periodically review the fund's liquidity during the compliance date extension period.91 In addition, funds that opt to delay the implementation of their classification system under the interim final rule will have to develop systems and processes to comply with the 15% limit in the absence of a classification system. In deciding whether they should exercise their option to delay, funds will weigh the costs of implementing any interim systems and processes during the compliance date extension period if they opt to delay the implementation of a full portfolio classification system against the costs of implementing a full portfolio classification system by the original compliance date if they do not.

    91See supra footnote 62 and surrounding text for a discussion of liquidity risk management program implementation in the absence of a portfolio classification system.

    Impacts on Investors and Other Market Participants

    As discussed above, the compliance date extension provides funds with the option to delay the implementation of a full portfolio classification system. The compliance date extension for certain of the Liquidity Rule Requirements will delay benefits to fund investors and other market participants who otherwise would have benefited from those portions of the rule during the compliance date extension period. These delayed benefits include, for example, the increased likelihood that funds would be able to effectively meet redemption obligations by establishing an HLIM and any benefits associated with the Commission's ability to monitor and analyze trends in fund liquidity based on the portfolio holding classifications reported on Form N-PORT.92 However, because smaller entities will not begin filing Form N-PORT until April 30, 2020 and the compliance date for larger entities filing Form N-PORT has been delayed until April 30, 2019, the only delayed benefits associated with disclosures on Form N-PORT would be for larger entities during the three-month period between April 30, 2019 and the extended compliance date of July 30, 2019.93 In addition, to the extent that funds would not have been able to effectively comply with the provisions of the Liquidity Risk Requirements that are being extended as of the original compliance date, such benefits would not have existed under the baseline, and thus the diminution of the expected benefits would be not be attributable to the compliance date extension.

    92See section IV.C of the Adopting Release for a comprehensive discussion of the benefits associated with the Liquidity Rule Requirements. See Adopting Release, supra footnote 3, at n.1089 and surrounding text for a discussion of why we are unable to quantify these benefits.

    93See N-PORT Release, supra footnote 55.

    Efficiency, Competition, and Capital Formation

    In the Adopting Release, we discussed the effects of the Liquidity Rule Requirements on efficiency, competition, and capital formation. In general, the interim final rule will delay, for six months, those effects that are associated with the elements of the Liquidity Rule Requirements that we are delaying today. For example, funds may shift their portfolios away from less liquid assets and towards more liquid assets as a result of the HLIM. Some of the potential economic effects associated with such a shift, as discussed in the Adopting Release, include a potentially lower yield on the funds available to investors, a decrease in the investment options available to investors, an additional decrease in the liquidity of less liquid securities, and an additional increase in the liquidity of more liquid securities.94 With respect to capital formation, any shift by funds or investors away from less liquid assets and towards more liquid assets could discourage new issuance of illiquid securities or a shift in the capital structure of issuers away from less liquid assets such as bonds and towards more liquid asset such as equities.95

    94See section IV.C of the Adopting Release for a detailed discussion of the Liquidity Rule Requirements' effect on efficiency, competition, and capital formation.

    95See Adopting Release, supra footnote 3, at n.1128 and surrounding text for a discussion of the effects of a shift away from illiquid assets on capital formation.

    The compliance date extension may disadvantage some funds that have already invested in systems and processes to implement the Liquidity Rule Requirements and would be able to effectively comply with those requirements as of the compliance date established in the Adopting Release. To the extent that the capital invested by these funds makes them less able to invest in other aspects of their business, the rule may put them at a competitive disadvantage relative to funds that have not invested as heavily in complying with the Liquidity Rule Requirements. However, to the extent that investors have a preference for funds with complete liquidity risk management programs, some funds may prefer to comply with the Liquidity Rule Requirements by the compliance date in the Adopting Release, and may perceive having significant capital invested already as a competitive advantage. In addition, to the extent that funds have complete liquidity risk management programs, they would not have to implement systems for complying with the 15% illiquid investment limit under the guidance provided in this release, which would diminish any potential competitive differential. As is the case with the amortization of one-time costs over an additional six months discussed above, this effect will vary with the extent to which a fund has already invested in implementing systems and processes to comply with these elements, which we cannot quantify.

    As discussed above, funds that opt to delay the implementation of a full classification system may choose different ways of complying with the 15% illiquid investment limit during the compliance date extension period. The manner in which funds choose to comply with the 15% illiquid investment limit may lead otherwise similar funds to have different capacities for holding illiquid investments. For example, two otherwise identical funds could perform the same preliminary evaluation discussed in the guidance above, while only one of the funds might perform the secondary evaluation under the guidance. Any secondary evaluation in which it is determined that some investments are not illiquid results in the fund that performs the secondary evaluation holding a lower percentage of illiquid assets than the otherwise identical fund that only performs a preliminary evaluation. If having a higher capacity to invest in illiquid investments allows some funds to increase the expected return of their portfolios, these funds will consider this potential competitive advantage when determining how they will comply with the 15% illiquid investment limit. In-kind ETFs will consider this potential competitive advantage on an ongoing basis. Other types of funds will consider this potential competitive advantage in determining how they will comply with the 15% illiquid investment limit during the compliance date extension period if they opt to delay the implementation of a classification system and whether it is worth exercising their option to delay.

    D. Reasonable Alternatives

    The Commission considered several alternatives to the interim final rule's six-month compliance date extensions. First, the compliance date could have been extended for a shorter or longer period of time. A shorter extension would have reduced the extent to which investors and other market participants will forgo any benefits associated with the delayed elements of the Liquidity Rule Requirements, but may not have provided ample time to fully mitigate the concerns raised by the commenters regarding the industry's ability to effectively comply with the elements of the rule related to classification. A longer extension would provide more time to mitigate commenters' concerns but also would have further delayed any potential benefits associated with the Liquidity Rule Requirements.

    Second, the Commission could have delayed all of the Liquidity Rule Requirements. Delaying all of the Liquidity Rule Requirements would have saved funds from incurring the costs associated with any interim systems or processes required to implement a liquidity risk management program (rule 22e-4(b)(1)(i)) and to comply with the 15% illiquid investment limit during the compliance date extension period. It also would have allowed funds to amortize startup costs for the rest of the elements of the Liquidity Rule Requirements that are not being delayed over an additional six months and would have saved the ongoing costs associated with those elements for six months. However, delaying all of the Liquidity Rule Requirements would also delay any of the benefits to investors and market participants associated with the general liquidity risk management program and the 15% illiquid investment limit, such as the reduced risk that funds are unable to meet their redemption obligations.

    Third, the compliance date extension could have been applied to all elements of the Liquidity Rule Requirements that refer to the classification requirement, including the 15% illiquid investment limit, the associated board reporting requirement, and the associated reporting requirements on Form N-PORT. This alternative would have saved funds from incurring the costs associated with any interim systems required to perform a preliminary evaluation of whether an asset is likely to be illiquid and, to the extent funds opt to implement classification systems during the interim period to allow for a secondary evaluation of asset liquidity in the context of the 15% illiquid investment limit, the costs associated with building such interim systems by the compliance date in the Adopting Release. Delaying all of the classification-related elements would have also delayed any benefits associated with the 15% illiquid investment limit, such as the increased likelihood that a fund's portfolio is not overly concentrated in illiquid investments and the decreased likelihood that a fund's portfolio remains overly concentrated in illiquid investments for an extended period of time as result of the requirements that funds report violations of their 15% illiquid investment limit to their boards and the Commission on Form N-LIQUID.

    Finally, the Commission could have chosen not to delay the compliance date for the HLIM requirement, and instead provided guidance as to how funds could comply with that requirement during the period that portfolio classification requirements are extended. Maintaining the original compliance date for the HLIM requirement also would have maintained any benefits associated with the HLIM during the compliance date extension period such as the increased likelihood that funds would be able to effectively meet redemption obligations. However, as discussed previously, not delaying the HLIM requirement may have caused funds that opted to delay the implementation of a portfolio classification system to incur costs in developing any interim systems required to comply with the HLIM requirement absent a portfolio classification system, or redo certain elements of their systems when they implement full portfolio classification. Because HLIM is a new requirement for which there has been no previous Commission guidance and the establishment of an HLIM may depend more heavily on a full portfolio classification system, implementing interim systems to comply with HLIM could be more costly to funds than implementing interim systems to comply with the 15% illiquid investment limit.

    E. Request for Comment

    We are requesting comment on our analysis of the potential economic effects of the interim final rule delaying the compliance date for those elements of the Liquidity Rule Requirements associated with the classification requirement:

    • Are there any other costs or benefits we should consider in our analysis? If so please explain why those costs or benefits are relevant and provide quantitative estimates where possible.

    • Are there other reasonable alternatives to the interim final rule's delayed compliance date that we should consider?

    IV. Paperwork Reduction Act Analysis

    We do not believe that the revision of the compliance date for Part D of Form N-LIQUID, amendments to Form N-PORT, and certain provisions of rule 22e-4 make any substantive modifications to any existing collection of information requirements or impose any new substantive recordkeeping or information collection requirements within the meaning of the Paperwork Reduction Act of 1995 (“PRA”).96

    96 44 U.S.C. 3501 et seq.

    We believe that the current burden and cost estimates for the existing collection of information requirements remain appropriate.97 We are only delaying certain burdens for six months. Thus, we believe that there are no new substantive burdens imposed on the overall population of respondents and the current overall burden estimates for the relevant forms are not affected.98 Accordingly, we are not revising any burden and cost estimates in connection with the revision of the compliance date. We request comment on whether our belief is correct.

    97 The titles for the existing collections of information are: “Rule 22e-4 (17 CFR 270.22e-4) under the Investment Company Act of 1940” (OMB Control No. 3235-0737); “Rule 30b1-10 (17 CFR 270.30b1-10) under the Investment Company Act of 1940, `Current report for open-end management investment companies' and Form N-LIQUID, `Current report, open-end investment company.' ” (OMB Control No. 3235-0754); “Rule 30b1-9 and Form N-PORT” (OMB Control No. 3235-0730).

    98See section III above.

    By the Commission.

    Dated: February 22, 2018. Brent J. Fields, Secretary.
    [FR Doc. 2018-03917 Filed 2-26-18; 8:45 am] BILLING CODE 8011-01-P
    DEPARTMENT OF HOMELAND SECURITY U.S. Customs and Border Protection DEPARTMENT OF THE TREASURY 19 CFR Part 12 [CBP Dec. 18-02] RIN 1515-AE37 Extension of Import Restrictions Imposed on Certain Archaeological Material From Belize AGENCY:

    U.S. Customs and Border Protection, Department of Homeland Security; Department of the Treasury.

    ACTION:

    Final rule.

    SUMMARY:

    This final rule amends U.S. Customs and Border Protection (CBP) regulations to reflect the extension of import restrictions on certain archaeological material from Belize. These restrictions, which were imposed by CBP Dec. 13-05, are due to expire on February 27, 2018, unless extended. The Acting Assistant Secretary for Educational and Cultural Affairs, United States Department of State (Department of State), has determined that conditions continue to warrant the imposition of import restrictions. Accordingly, the restrictions will remain in effect for an additional five years, and the CBP regulations are being amended to indicate this additional extension. These restrictions are being extended pursuant to determinations of the Department of State under the terms of the Convention on Cultural Property Implementation Act, which implements the 1970 United Nations Educational, Scientific and Cultural Organization (UNESCO) Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. CBP Dec. 13-05 contains the Designated List of archaeological material that describes the articles to which the restrictions apply.

    DATES:

    Effective February 27, 2018.

    FOR FURTHER INFORMATION CONTACT:

    For legal aspects, Lisa L. Burley, Chief, Cargo Security, Carriers and Restricted Merchandise Branch, Regulations and Rulings, Office of Trade, (202) 325-0215, [email protected] For operational aspects, William R. Scopa, Branch Chief, Partner Government Agency Branch, Trade Policy and Programs, Office of Trade, (202) 863-6554, [email protected]

    SUPPLEMENTARY INFORMATION: Background

    Pursuant to the provisions of the Convention on Cultural Property Implementation Act (hereafter, the Cultural Property Implementation Act or the Act) (Pub. L. 97-446, 19 U.S.C. 2601 et seq.), which implements the 1970 United Nations Educational, Scientific and Cultural Organization (UNESCO) Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (hereinafter, the Convention), in U.S. law, the United States may enter into an international agreement with another State Party to the Convention to impose import restrictions on eligible archaeological and ethnological materials under procedures and requirements prescribed by the Act. Under the Act and applicable CBP regulations (19 CFR 12.104g), the restrictions are effective for no more than five years beginning on the date on which the agreement enters into force with respect to the United States (19 U.S.C. 2602(b)). This period may be extended for additional periods, not to exceed five years, if it is determined that the factors justifying the initial agreement still pertain and no cause for suspension of the agreement exists (19 U.S.C. 2602(e); 19 CFR 12.104g(a)).

    On February 27, 2013, the United States entered into a bilateral agreement with the Government of Belize concerning the imposition of import restrictions on certain categories of archaeological material originating in Belize, pursuant to the Act. (The agreement can be found online at https://eca.state.gov/files/bureau/bzmou2013.pdf.) On March 5, 2013, CBP published CBP Dec. 13-05 in the Federal Register (78 FR 14183), which amended 19 CFR 12.104g(a) to reflect the imposition of restrictions on this material and included a list designating the types of archaeological material covered by the restrictions. These restrictions were to be effective through February 27, 2018.

    On January 12, 2018, after reviewing the findings and recommendations of the Cultural Property Advisory Committee, the Acting Assistant Secretary for Educational and Cultural Affairs, Department of State, concluding that the cultural heritage of Belize continues to be in jeopardy from pillage of certain archaeological material, made the necessary statutory determinations, and decided to extend the agreement with Belize for an additional five-year period to February 27, 2023. Diplomatic notes have been exchanged that reflect the extension of the agreement. Accordingly, CBP is amending 19 CFR 12.104g(a) in order to reflect the extension of the import restrictions pursuant to the agreement.

    The Designated List of Archaeological Material originating in Belize covered by these import restrictions is set forth in CBP Dec. 13-05, which can be found online at: https://eca.state.gov/files/bureau/bz2013dlfrn.pdf.

    The restrictions on the importation of this archaeological material originating in Belize are to continue in effect for an additional five years. Importation of such material continues to be restricted unless the conditions set forth in 19 U.S.C. 2606 and 19 CFR 12.104c are met.

    Inapplicability of Notice and Delayed Effective Date

    This amendment involves a foreign affairs function of the United States and is, therefore, being made without notice or public procedure (5 U.S.C. 553(a)(1)). In addition, CBP has determined that such notice or public procedure would be impracticable and contrary to the public interest because the action being taken is essential to avoid interruption of the application of the existing import restrictions (5 U.S.C. 553(b)(B)). For the same reason, a delayed effective date is not required under 5 U.S.C 553(d)(3).

    Regulatory Flexibility Act

    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.

    Executive Orders 12866 and 13771

    Because this rule involves a foreign affairs function of the United States, it is not subject to either Executive Order 12866 or Executive Order 13771.

    Signing Authority

    This regulation is being issued in accordance with 19 CFR 0.1(a)(1).

    List of Subjects in 19 CFR Part 12

    Cultural property, Customs duties and inspection, Imports, Prohibited merchandise.

    Amendment to CBP Regulations

    For the reasons set forth above, part 12 of Title 19 of the Code of Federal Regulations (19 CFR part 12), is amended as set forth below.

    PART 12—SPECIAL CLASSES OF MERCHANDISE 1. The general authority citation for part 12 and the specific authority citation for § 12.104g continue to read as follows: Authority:

    5 U.S.C. 301; 19 U.S.C. 66, 1202 (General Note 3(i), Harmonized Tariff Schedule of the United States (HTSUS)), 1624;

    Sections 12.104 through 12.104i also issued under 19 U.S.C. 2612;
    § 12.104g [Amended]
    2. In § 12.104g, the table in paragraph (a) is amended in the entry for Belize by adding the words “extended by “CBP Dec. 18-02” after the words “CBP Dec. 13-05” in the column headed “Decision No.”. Kevin K. McAleenan, Acting Commissioner, U.S. Customs and Border Protection. Approved: February 21, 2018. Timothy E. Skud, Deputy Assistant Secretary of the Treasury.
    [FR Doc. 2018-03946 Filed 2-26-18; 8:45 am] BILLING CODE 9111-14-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 864 [Docket No. FDA 2018-N-0339] Medical Devices; Hematology and Pathology Devices; Classification of Lynch Syndrome Test Systems AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Final order.

    SUMMARY:

    The Food and Drug Administration (FDA or we) is classifying Lynch syndrome test systems into class II (special controls). The special controls that apply to the device type are identified in this order and will be part of the codified language for the Lynch syndrome test systems' classification. We are taking this action because we have determined that classifying the device into class II (special controls) will provide a reasonable assurance of safety and effectiveness of the device. We believe this action will also enhance patients' access to beneficial innovative devices, in part by reducing regulatory burdens.

    DATES:

    This order is effective February 27, 2018. The classification was applicable on October 27, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Scott McFarland, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 4676, Silver Spring, MD 20993-0002, 301-796-5866, [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Background

    Upon request, FDA has classified Lynch syndrome test systems as class II (special controls), which we have determined will provide a reasonable assurance of safety and effectiveness. In addition, we believe this action will enhance patients' access to beneficial innovation, in part by reducing regulatory burdens by placing the device into a lower device class than the automatic class III assignment.

    The automatic assignment of class III occurs by operation of law and without any action by FDA, regardless of the level of risk posed by the new device. Any device that was not in commercial distribution before May 28, 1976, is automatically classified as, and remains within, class III and requires premarket approval unless and until FDA takes an action to classify or reclassify the device (see 21 U.S.C. 360c(f)(1)). We refer to these devices as “postamendments devices” because they were not in commercial distribution prior to the date of enactment of the Medical Device Amendments of 1976, which amended the Federal Food, Drug, and Cosmetic Act (FD&C Act).

    FDA may take a variety of actions in appropriate circumstances to classify or reclassify a device into class I or II. We may issue an order finding a new device to be substantially equivalent under section 513(i) of the FD&C Act to a predicate device that does not require premarket approval (see 21 U.S.C. 360c(i)). We determine whether a new device is substantially equivalent to a predicate by means of the procedures for premarket notification under section 510(k) of the FD&C Act and part 807 (21 U.S.C. 360(k) and 21 CFR part 807, respectively).

    FDA may also classify a device through “De Novo” classification, a common name for the process authorized under section 513(f)(2) of the FD&C Act. Section 207 of the Food and Drug Administration Modernization Act of 1997 established the first procedure for De Novo classification (Pub. L. 105-115). Section 607 of the Food and Drug Administration Safety and Innovation Act modified the De Novo application process by adding a second procedure (Pub. L. 112-144). A device sponsor may utilize either procedure for De Novo classification.

    Under the first procedure, the person submits a 510(k) for a device that has not previously been classified. After receiving an order from FDA classifying the device into class III under section 513(f)(1) of the FD&C Act, the person then requests a classification under section 513(f)(2).

    Under the second procedure, rather than first submitting a 510(k) and then a request for classification, if the person determines that there is no legally marketed device upon which to base a determination of substantial equivalence, that person requests a classification under section 513(f)(2) of the FD&C Act.

    Under either procedure for De Novo classification, FDA is required to classify the device by written order within 120 days. The classification will be according to the criteria under section 513(a)(1) of the FD&C Act. Although the device was automatically within class III, the De Novo classification is considered to be the initial classification of the device.

    We believe this De Novo classification will enhance patients' access to beneficial innovation, in part by reducing regulatory burdens. When FDA classifies a device into class I or II via the De Novo process, the device can serve as a predicate for future devices of that type, including for 510(k)s (see 21 U.S.C. 360c(f)(2)(B)(i)). As a result, other device sponsors do not have to submit a De Novo request or premarket approval application in order to market a substantially equivalent device (see 21 U.S.C. 360c(i), defining “substantial equivalence”). Instead, sponsors can use the less-burdensome 510(k) process, when necessary, to market their device.

    II. De Novo Classification

    On May 31, 2017, Ventana Medical Systems, Inc. submitted a request for De Novo classification of the Ventana MMR IHC Panel. FDA reviewed the request in order to classify the device under the criteria for classification set forth in section 513(a)(1) of the FD&C Act.

    We classify devices into class II if general controls by themselves are insufficient to provide reasonable assurance of safety and effectiveness, but there is sufficient information to establish special controls that, in combination with the general controls, provide reasonable assurance of the safety and effectiveness of the device for its intended use (see 21 U.S.C. 360c(a)(1)(B)). After review of the information submitted in the request, we determined that the device can be classified into class II with the establishment of special controls. FDA has determined that these special controls, in addition to the general controls, will provide reasonable assurance of the safety and effectiveness of the device.

    Therefore, on October 27, 2017, FDA issued an order to the requester classifying the device into class II. FDA is codifying the classification of the device by adding 21 CFR 864.1866. We have named the generic type of device Lynch syndrome test systems, and it is identified as in vitro diagnostic tests for use with tumor tissue to identify previously diagnosed cancer patients at risk for having Lynch syndrome.

    FDA has identified the following risks to health associated specifically with this type of device and the measures required to mitigate these risks in table 1.

    Table 1—Lynch Syndrome Test Systems Risks and Mitigation Measures Identified risk Mitigation measures False positive test result General controls; Special controls (1) and (2) (21 CFR 864.1866(b)(1) and (2)). False negative test result General controls; Special control (1) and (2) (21 CFR 864.1866(b)(1) and(2)).

    FDA has determined that special controls, in combination with the general controls, address these risks to health and provide reasonable assurance of safety and effectiveness. For a device to fall within this classification, and thus avoid automatic classification in class III, it would have to comply with the special controls named in this final order. The necessary special controls appear in the regulation codified by this order. This device is subject to premarket notification requirements under section 510(k).

    III. Analysis of Environmental Impact

    The Agency has determined under 21 CFR 25.34(b) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

    IV. Paperwork Reduction Act of 1995

    This final order establishes special controls that refer to previously approved collections of information found in other FDA regulations and guidance. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information in the guidance document “De Novo Classification Process (Evaluation of Automatic Class III Designation)” have been approved under OMB control number 0910-0844; the collections of information in part 814, subparts A through E, regarding premarket approval, have been approved under OMB control number 0910-0231; the collections of information in part 807, subpart E, regarding premarket notification submissions, have been approved under OMB control number 0910-0120; and the collections of information in 21 CFR parts 801 and 809, regarding labeling, have been approved under OMB control number 0910-0485.

    List of Subjects in 21 CFR Part 864

    Blood, Medical devices, Packaging and containers.

    Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR part 864 is amended as follows:

    PART 864—HEMATOLOGY AND PATHOLOGY DEVICES 1. The authority citation for part 864 continues to read as follows: Authority:

    21 U.S.C. 351, 360, 360c, 360e, 360j, 360l, 371.

    2. Add § 864.1866 to subpart B to read as follows:
    § 864.1866 Lynch syndrome test systems.

    (a) Identification. Lynch syndrome test systems are in vitro diagnostic tests for use with tumor tissue to identify previously diagnosed cancer patients at risk for having Lynch syndrome.

    (b) Classification. Class II (special controls). The special controls for this device are:

    (1) Premarket notification submissions must include the following information, as appropriate:

    (i) A detailed description of all test components, including all provided reagents, and required but not provided, ancillary reagents.

    (ii) A detailed description of instrumentation and equipment, including illustrations or photographs of non-standard equipment or manuals.

    (iii) Detailed documentation of the device software, including, but not limited to, standalone software applications and hardware-based devices that incorporate software.

    (iv) A detailed description of quality controls including appropriate positive and negative controls that are recommended or provided.

    (v) Detailed specifications for sample collection, processing, and storage.

    (vi) A detailed description of methodology and assay procedure.

    (vii) A description of the assay cut-off (i.e., the medical decision point between positive and negative results) or other relevant criteria that distinguishes positive and negative results, or ordinal classes of marker expression, including the rationale for the chosen cut-off or other relevant criteria and results supporting validation of the cut-off.

    (viii) Detailed specification of the criteria for test result interpretation and reporting.

    (ix) Detailed information demonstrating the performance characteristics of the device, including:

    (A) Data from an appropriate study demonstrating clinical accuracy using well-characterized clinical specimens representative of the intended use population (i.e., concordance to Deoxyribonucleic Acid (DNA) sequencing results of the Lynch syndrome associated genes or method comparison to the predicate device using samples with known alterations in genes representative of Lynch syndrome). Pre-specified acceptance criteria must be provided and followed.

    (B) Appropriate device reproducibility data investigating all sources of variance (e.g., for distributed tests, data generated using a minimum of three sites, of which at least two sites must be external sites). Each site must perform testing over a minimum of 5 nonconsecutive days evaluating a sample panel that spans the claimed measuring range, and includes the clinical threshold. Pre-specified acceptance criteria must be provided and followed.

    (C) Data demonstrating reader reproducibility, both within-reader and between-reader, assessed by three readers over 3 nonconsecutive days at each site, including a 2 week washout period between reads, as appropriate.

    (D) Device precision data using clinical samples spanning the measuring range and controls to evaluate the within-lot, between-lot, within-run, between run, and total variation.

    (E) Analytical specificity studies including as appropriate, western blots, peptide inhibition, testing in normal tissues and neoplastic tissues, interference by endogenous and exogenous substances, and cross-reactivity and cross contamination testing.

    (F) Device analytical sensitivity data generated by testing an adequate number of samples from individuals with the target condition such that prevalence of the biomarker in the target population is established.

    (G) Device stability data, including real-time stability and in-use stability, and stability evaluating various storage times, temperatures, and freeze-thaw conditions, as appropriate.

    (H) The staining performance criteria assessed must include overall staining acceptability, background staining acceptability, and morphology acceptability, as appropriate.

    (I) Appropriate training requirements for users, including interpretation manual, as applicable.

    (J) Identification of risk mitigation elements used by the device, including a description of all additional procedures, methods, and practices incorporated into the instructions for use that mitigate risks associated with testing.

    (2) The device's § 809.10(b) of this chapter compliant labeling must include a detailed description of the protocol, including the information described in paragraphs (b)(1)(i) through (viii) of this section, as appropriate, and a detailed description of the performance studies performed and the summary of the results, including those that relate to paragraph (b)(1)(ix) of this section, as appropriate.

    Dated: February 21, 2018. Leslie Kux, Associate Commissioner for Policy.
    [FR Doc. 2018-03924 Filed 2-26-18; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket Number USCG-2018-0074] RIN 1625-AA00 Safety Zone; Wando Terminal Crane Movement; Charleston, SC AGENCY:

    Coast Guard, DHS.

    ACTION:

    Temporary final rule.

    SUMMARY:

    The Coast Guard is establishing a temporary moving safety zone in the Port of Charleston in Charleston, SC around the vessel, M/V Zhen Hua 16. This temporary safety zone is necessary to provide for the safety of waterway users and the M/V Zhen Hua 16 during the vessel's transit into the Port of Charleston, its stay at Columbus Street Terminal, its transit to and stay at Wando Terminal, and its outbound transit departing the Port of Charleston. Entry of vessels or persons into this zone is prohibited unless specifically authorized by the Captain of the Port Charleston.

    DATES:

    This rule is effective without actual notice from February 27, 2018 through March 31, 2018. For the purposes of enforcement, actual notice will be used from February 23, 2018 through February 27, 2018.

    ADDRESSES:

    To view documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type USCG-2018-0074 in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rule.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this rule, call or email Lieutenant Justin Heck, Sector Charleston Office of Waterways Management, Coast Guard; telephone (843) 740-3184, email [email protected]

    SUPPLEMENTARY INFORMATION: I. Table of Abbreviations CFR Code of Federal Regulations DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking § Section U.S.C. United States Code II. Background Information and Regulatory History

    The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable. We must establish this safety zone by February 23, 2018 and lack sufficient time to provide a reasonable comment period and then consider those comments before issuing the rule because the details of the event were not provided to the Coast Guard until January 24, 2018. It is also contrary to the public interest as it would delay the planning and implementation of safety measures necessary to protect the public and mariners from the hazards associated with the transit of the M/V Zhen Hua 16.

    Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register. Delaying the effective date of this rule would be contrary to public interest because immediate action is needed to respond to the potential safety hazards associated with the transit of the M/V Zhen Hua 16.

    III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The Captain of the Port (COTP) Charleston has determined that potential hazards exist and will be associated with navigation and dockside operations of the M/V Zhen Hua 16 while within the Sector Charleston Captain of the Port Zone. Due to the size of the cranes aboard the vessel and the vessel's limited ability to maneuver this temporary safety zone is necessary to ensure the safety of, and reduce the risk to, the public and mariners.

    IV. Discussion of the Rule

    This rule establishes a temporary moving safety zone from 12:00 a.m. on February 23, 2018, through 11:59 p.m. on March 31, 2018, encompassing all navigable waters from the surface to the sea floor within 100 yards of the M/V Zhen Hua 16 while the vessel is underway, moored, or anchored in the Sector Charleston Captain of the Port Zone. No vessel or person is permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. Sector Charleston may be contacted on VHF-FM Channel 16 or (843) 740-7050.

    V. Regulatory Analyses

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

    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 rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.

    This regulatory action determination is based on the size, location, and duration of the safety zone. The size of the zone is the minimum necessary to provide adequate protection for the waterway users, adjoining areas, and the public. The temporary safety zone will be in place during the vessel's time inside the Sector Charleston Captain of the Port Zone. Any hardships experienced by persons or vessels are considered minimal compared to the interest in protecting the public.

    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 zone may be small entities, for the reasons stated in section V.A. above, this rule will not have a significant economic impact on any vessel owner or operator.

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

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

    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 rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

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

    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 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 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 temporary safety zone that will prohibit entry within a 100-yard radius of the vessel, M/V Zhen Hua 16, during the vessel's transit, mooring and anchoring in the Sector Charleston Captain of the Port Zone. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES.

    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.

    List of Subjects in 33 CFR Part 165

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

    For the reasons discussed in the preamble, the Coast Guard amends 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.T07-0074 to read as follows:
    § 165.T07-0074 Safety Zone; Wando Terminal Crane Movement; Charleston, SC.

    (a) Regulated area. The following regulated area is a moving safety zone: All waters of the Charleston Harbor, Cooper River, and Wando River in Charleston, SC within a 100 yard radius around the outer most points of the M/V Zhen Hua 16 while the vessel is underway, moored or anchored.

    (b) Definition. As used in this section, “designated representative” means Coast Guard Patrol Commanders, including Coast Guard coxswains, petty officers, and other officers operating Coast Guard vessels, and Federal, state, and local officers designated by or assisting the Captain of the Port Charleston in the enforcement of the regulated areas.

    (c) Regulations. (1) All persons and vessels are prohibited from entering, transiting through, anchoring in, or remaining within the regulated area unless authorized by the Captain of the Port Charleston or a designated representative.

    (2) Persons and vessels desiring to enter, transit through, anchor in, or remain within the regulated area may contact the Captain of the Port Charleston by telephone at (843) 740-7050, or a designated representative via VHF radio on channel 16, to request authorization. If authorization to enter, transit through, anchor in, or remain within the regulated area is granted, all persons and vessels receiving such authorization must comply with the instructions of the Captain of the Port Charleston or a designated representative.

    (3) The Coast Guard will provide notice of the regulated area by Marine Safety Information Bulletins, Local Notice to Mariners, Broadcast Notice to Mariners, and on-scene designated representatives.

    (d) Enforcement period. This section will be enforced beginning at 12:00 a.m. on February 23, 2018, until 11:59 p.m. on March 31, 2018. This rule will be enforced while M/V Zhen Hua is underway, moored, or anchored in the Sector Charleston Captain of the Port Zone.

    Dated: February 21, 2018. J.W. Reed, Captain, U.S. Coast Guard, Captain of the Port Charleston.
    [FR Doc. 2018-03915 Filed 2-26-18; 8:45 am] BILLING CODE 9110-04-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R06-OAR-2017-0077; FRL-9974-51—Region 6] Approval and Promulgation of Implementation Plans; Texas; Approval of Texas Motor Vehicle Rule Revisions AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Direct final rule.

    SUMMARY:

    Pursuant to the Federal Clean Air Act (CAA or the Act), the Environmental Protection Agency (EPA) is approving revisions submitted by the State of Texas that affect the Texas State Implementation Plan (SIP) concerning Texas' motor vehicle air pollution rules and retail gasoline dispensing labeling requirements for El Paso. The revisions are non-substantive in nature and do not affect implementation of federal requirements.

    DATES:

    This rule is effective on May 29, 2018 without further notice, unless the EPA receives relevant adverse comment by March 29, 2018. If the EPA receives such comment, the EPA will publish a timely withdrawal in the Federal Register informing the public that this rule will not take effect.

    ADDRESSES:

    Submit your comments, identified by Docket No. EPA-R06-OAR-2017-0077, at http://www.regulations.gov or via email to [email protected] 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, please contact Mr. John Walser, 214-665-7128, [email protected] For 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.

    Docket: The index to the docket for this action is available electronically at www.regulations.gov and in hard copy at EPA Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas. While all documents in the docket are listed in the index, some information may be publicly available only at the hard copy location (e.g., copyrighted material), and some may not be publicly available at either location (e.g., CBI).

    FOR FURTHER INFORMATION CONTACT:

    Mr. John Walser, 214-665-7128, [email protected] To inspect the hard copy materials, please schedule an appointment with Mr. Bill Deese at 214-665-7253.

    SUPPLEMENTARY INFORMATION:

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

    I. Background

    Section 110 of the CAA requires states to develop and submit to the EPA a SIP to ensure that state air quality meets National Ambient Air Quality Standards. These ambient standards currently address six criteria pollutants: Carbon monoxide, nitrogen dioxide, ozone, lead, particulate matter, and sulfur dioxide. Each federally-approved SIP protects air quality primarily by addressing air pollution at its point of origin through air pollution regulations and control strategies. The EPA approved SIP regulations and control strategies are federally enforceable.

    II. The SIP Submittals and EPA's Evaluation

    On July 12, 1995, the Texas Commission on Environmental Quality (TCEQ) submitted SIP revisions to EPA that amend 30 Texas Administrative Code (TAC) Chapter 114.13 (renumbered to 114.100) 1 which include minor rephrasing regarding gasoline pump dispensing labeling dates. Specifically, the revisions modify § 114.100(f)(1) and (2) to indicate when the legible labels shall be displayed. See Docket EPA-R06-OAR-2017-0077 online at www.regulations.gov for the submittal and adopted rules published in the Texas Register (20 TexReg 3097, April 25, 1995). EPA is approving these minor changes submitted to EPA on July 12, 1995. Note, it was discovered in the processing of the 2017 SIP revision discussed below that EPA had inadvertently never processed the 1995 revision.

    1See, 63 FR 35839 (July 1, 1998).

    On January 20, 2017, TCEQ submitted SIP revisions to EPA that amend 30 TAC Chapter Section 114.100 and 114.305 that make non-substantive, minor modifications to the following Sections: § 114.100 (b), (c), (d), (e)(1), (e)(2), (f) and 114.305(a) and (c). For example, § 114.100(c) changes the date “September 1” to “September 1st.” The revision to § 114.100(d) includes replacing the phrase “commission, EPA” with “executive director, United States Environmental Protection Agency (EPA).” The revision to § 114.100(e)(2) adds the words “the active version” to the beginning of the phrase “American Society for Testing and Materials (ASTM)” to ensure that the most active ASTM version is used for determining the oxygen content of fuel.2 Revisions to § 114.305(a) ensure that the most active current version of the ASTM Test Method for determining compliance with the Reid Vapor Pressure (RVP) limits is required consistent with industry's current testing practices and state and federal law.3 We have prepared a TSD for this action which details our evaluation. The TSD may be accessed on-line at www.regulations.gov, Docket No. EPA-R06-OAR-2017-0077.

    2 The most active current ASTM Test Method is ASTM D4815.

    3 Volatility is the property of a liquid fuel that defines its evaporation characteristics. RVP is an abbreviation for “Reid Vapor Pressure”, a common measure of and the generic term for gasoline volatility. The most active current version of the test for gasoline volatility is the ASTM Test Method D5191.

    Section 211(m) of the Act requires that various States submit revisions to their SIPs, and implement oxygenated gasoline programs by no later than November 1, 1992. EPA previously approved the State's adopted labeling regulations, enforcement procedures, and oxygenate test methods in conformity with Federal regulations (See, 59 FR 15683 (April 4, 1994)). The labeling regulations of retail gasoline pumps also may be found at 40 CFR 80.35.4 Texas has complied with federal requirements and the above revisions function to add further clarity to the existing rule language and are approvable.

    4 See “Notice of Final Oxygenated Fuels Labeling Regulations under Section 211(m) of the CAA as Amended—Notice of Final Rulemaking.” (See, 57 FR 47769 (October 20, 1992)).

    III. Final Action

    Pursuant to Sections 110 and 182 of the Act, EPA is approving, through a direct final action, revisions to the Texas SIP that were submitted on July 12, 1995 and January 20, 2017. We are approving revisions to the following sections within Chapter 114 of 30 TAC: 114.100 and 114.305. We evaluated the state's submittals and determined that they meet the applicable requirements of the CAA. Also, in accordance with CAA section 110(l), the revisions will not interfere with attainment of the NAAQS, reasonable further progress, or any other applicable requirement of the CAA.

    The EPA is publishing this rule without prior proposal because we view this as a non-controversial amendment and anticipate no adverse comments. However, in the proposed rules section of this Federal Register publication, we are publishing a separate document that will serve as the proposal to approve the SIP revision if relevant adverse comments are received. This rule will be effective on May 29, 2018 without further notice unless we receive relevant adverse comment by March 29, 2018. If we receive relevant adverse comments, we will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. We will address all public comments in a subsequent final rule based on the proposed rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so now. Please note that if we receive relevant adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, we may adopt as final those provisions of the rule that are not the subject of an adverse comment.

    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 revisions to the Texas regulations as described in the Final Action section above. The EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 6 Office (please contact Mr. John Walser for more information). Therefore, 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 (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 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).

    In addition, the SIP is not approved to apply on any Indian reservation land 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).

    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 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. 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 30, 2018. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule 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, Carbon monoxide, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Volatile organic compounds.

    Dated: February 22, 2018. Anne Idsal, Regional Administrator, Region 6.

    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 SS—Texas 2. In § 52.2270(c), the table entitled “EPA Approved Regulations in the Texas SIP” is amended by adding a centered heading for “Subchapter D—Oxygen Requirements for Gasoline” under Chapter 114, followed by a new entry for Section 114.100; and revising the entry for Section 114.305.

    The additions and revisions read as follows:

    § 52.2270 Identification of plan.

    (c) * * *

    EPA-Approved Regulations in the Texas SIP State citation Title/subject State
  • approval/
  • submittal
  • date
  • EPA approval date Explanation
    *         *         *         *         *         *         * Chapter 114 (Reg 4)—Control of Air Pollution from Motor Vehicles *         *         *         *         *         *         * Subchapter D—Oxygen Requirements for Gasoline Section 114.100 Oxygenated Fuels 1/20/2017 2/27/2018, [Insert Federal Register citation] *         *         *         *         *         *         * Subchapter H—Low Emission Fuels Division 1: Gasoline Volatility *         *         *         *         *         *         * Section 114.305 Approved Test Methods 1/20/2017 2/27/2018, [Insert Federal Register citation] *         *         *         *         *         *         *
    [FR Doc. 2018-03974 Filed 2-26-18; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 648 [Docket No. 170808738-7777-01] RIN 0648-BH11 Magnuson-Stevens Fishery Conservation and Management Act Provisions; Fisheries of the Northeastern United States; Northeast Groundfish Fishery; Fishing Year 2017; Extension of Emergency Removal of Southern Windowpane Accountability Measures AGENCY:

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

    ACTION:

    Temporary rule; emergency action extended.

    SUMMARY:

    This rule extends the emergency action to remove the 2017 southern windowpane flounder accountability measures (AM) for non-groundfish trawl vessels. The rule is necessary because the emergency measures would otherwise expire before the end of the 2017 fishing year. This rule is intended to mitigate negative economic impacts to non-groundfish vessels, while maintaining conservation benefits for the southern windowpane flounder stock.

    DATES:

    Effective March 1, 2018, through April 30, 2018.

    ADDRESSES:

    Copies of recent related actions, including Framework 52, 55, and Framework 56, the Environmental Assessments (EA), and their Regulatory Impact Review, and the Final Regulatory Flexibility Act analysis prepared by the New England Fishery Management Council and NMFS are available from Michael Pentony, Regional Administrator, NMFS Greater Atlantic Regional Office, 55 Great Republic Drive, Gloucester, MA 01930. The documents are also accessible via the internet at: https://www.nefmc.org/management-plans/northeast-multispecies.

    FOR FURTHER INFORMATION CONTACT:

    Sarah Heil, Senior Fishery Policy Analyst, phone: 978-281-9257.

    SUPPLEMENTARY INFORMATION:

    On September 1, 2017, we implemented emergency measures to remove the southern windowpane flounder AMs for non-groundfish trawl vessels (82 FR 41564). These emergency measures expire on February 28, 2018. The emergency rule published on September 1, 2017, included detailed information on the background, reasons, and justification for the emergency measures, and this information is not repeated here.

    The Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) limits NMFS' emergency action authority to an initial period of 180 days, with a potential extension up to an additional 186 days, if certain criteria are met. An extension is allowed if the public has had an opportunity to comment on the emergency regulation, and in the case of a Council recommendation for an emergency action, the Council is actively developing a change to the Fishery Management Plan (FMP) or regulations to address the emergency on a permanent basis. We accepted public comment on the emergency measures, and received one comment in support of the action. Additionally, the New England Fishery Management Council developed changes in Framework Adjustment 57 to the Northeast Multispecies (Groundfish) FMP to permanently address the emergency. Framework 57 is intended to be implemented for the 2018 fishing year beginning on May 1, 2018. As discussed in more detail below, we determined the necessary criteria to extend the emergency measures have been met. Therefore, this temporary rule removes the southern windowpane flounder AMs for non-groundfish trawl vessels for the remainder of the 2017 fishing year through April 30, 2018.

    Background

    On August 1, 2017, we implemented AMs because the 2015 total annual catch limit (ACL) for southern windowpane flounder was exceeded (82 FR 35660). Due to data availability, we typically implement AMs for windowpane flounder at the start of the second fishing year after an overage. These AMs require trawl vessels fishing in certain Southern New England areas to use selective gear that limit flatfish catch. The southern windowpane AM areas apply to all groundfish trawl vessels. The AM areas also apply to non-groundfish trawl vessels fishing with a 5 inch (12.7 centimeter) or greater codend mesh size, which includes vessels that target summer flounder, scup, black sea bass, and skates. The AMs impose a substantial financial hardship on both groundfish and non-groundfish vessels, particularly because the AM areas eliminate access to target species that vessels are unlikely to recoup even if they move to fish in other areas. These AMs are estimated to result in $2 million in lost revenue in catch of yellowtail flounder, winter flounder, summer flounder, and scup.

    In 2015, we implemented Framework Adjustment 52 to the Northeast Multispecies FMP to reduce the economic impacts of the windowpane flounder AMs for the groundfish fishery (80 FR 2021; January 15, 2015). At the time, the AMs had only been triggered for the groundfish fishery. The Council intentionally limited the scope of Framework 52 to the groundfish fishery to ensure the action could be completed and implemented during the 2015 fishing year. Framework 52 gave the Regional Administrator authority to remove the windowpane flounder AM in-season if catch is below the ACL in the year immediately following the overage. For example, if we implement an AM in year 3 (2017) due to an overage in year 1 (2015), we can remove the AM in September if catch did not exceed the ACL in year 2 (2016).

    Total 2016 catch of southern windowpane flounder was 82 percent of the total ACL. As a result, under the Regional Administrator authority that Framework 52 established, we removed the AMs for the groundfish fishery on September 1, 2017 (82 FR 35676; August 1, 2017). However, because this authority is limited to the groundfish fishery only, the AMs for non-groundfish trawl vessels would have remained in place for the entire 2017 fishing year without additional action.

    As a result of the 2015 ACL overage, we implemented the AMs for non-groundfish trawl vessels for the first time in 2017. Neither we, nor the New England Council, considered or foresaw the possibility of removing the AMs inseason for groundfish vessels, but maintaining them for non-groundfish trawl vessels despite catch being below the ACL. This situation presented an issue of fairness and equity, particularly because catch by non-groundfish vessels was well below the sub-ACL for this fishery component. Maintaining the AMs for non-groundfish trawl vessels for the full fishing year would have substantial economic impacts without further contributing to the conservation goals of the AMs. For these reasons, and at the request of the New England and Mid-Atlantic Councils, on September 1, 2017, we implemented an emergency rule to remove the 2017 southern windowpane flounder AMs for non-groundfish trawl vessels (82 FR 41564). These emergency measures expire on February 28, 2018.

    Extension of Emergency Measures

    If the emergency measures expire, the southern windowpane flounder AMs would be re-implemented for non-groundfish trawl vessels for the remainder of the 2017 fishing year. This would undermine the conservation and management goals of the September 1, 2017, emergency action. AMs are intended to correct operational issues that cause overages and mitigate biological consequences of overages. The fishery's 2016 catch was below the overall ACL, which is consistent with the fishery having corrected the operational issues that caused the 2015 overage. We expect 2017 catch to be similar to 2016 because of recent quota reductions for key flounder species that limit overall fishing effort on all flatfish stocks, including southern windowpane flounder. Additionally, the 2017 assessment update shows a stable and slightly increasing southern windowpane stock. This assessment information, along with 2016 catch, is consistent with the AM's goal of mitigating or addressing the effects of the overage. As a result, we determined that removing the AMs in September would not result in negative impacts for the stock. Thus, allowing the emergency measures to expire would result in unnecessary economic loss to non-groundfish trawl vessels.

    Additionally, as noted earlier in this preamble, emergency action was justified because new information presented an issue of fairness and equity that we, nor the Council, previously contemplated. At the time of the emergency action, the New England Council was developing Framework Adjustment 57 to the Northeast Multispecies FMP, in part to address the issue of southern windowpane flounder AM impacts on non-groundfish trawls that arose during 2017. In this action, the New England Council recommended giving the Regional Administrator authority to remove the AMs inseason for non-groundfish vessels. The New England Council also recommended revising the southern windowpane flounder AM areas. These measures are intended to provide non-groundfish trawl vessels additional flexibility while continuing to reduce impacts on southern windowpane flounder. Framework 57 is intended to be implemented for the 2018 fishing year. The New England Council took final action on Framework 57 in December 2017, and has submitted the action to us for review. Framework 57 could not be developed and implemented in time to address this issue for the 2017 fishing year. Extending the emergency measures for the remainder of this fishing year will prevent disruption to non-groundfish trawl vessels while we consider the New England Council's recommended permanent changes.

    Emergency Measures

    This emergency action extends the Regional Administrator authority to remove the southern windowpane flounder AM inseason for non-groundfish trawl vessels if we determine that catch is below the ACL in the year immediately following an overage. Effective March 1, 2018, this action removes the southern windowpane flounder AMs for non-groundfish trawl vessels fishing with 5 inches (12.7 centimeter) or greater codend mesh size. These emergency measures are effective through April 30, 2018. There will be no southern windowpane flounder AM in effect beginning on May 1, 2018, because the 2016 ACL was not exceeded and current 2017 catch information does not suggest an ACL overage will occur. Non-groundfish trawl vessels may fish inside the southern windowpane flounder AM areas (Figure 1) without selective gear, which increases fishing opportunities to target other flatfish species for which they hold a permit and for which quota is available.

    ER27FE18.001 Comments and Responses

    We received one comment during the comment period on the emergency rule.

    Comment 1: Lund's Fisheries, Inc. commented in support of the emergency measures, and agreed that maintaining the AMs for non-groundfish trawl vessels would have presented fairness and equity issues, as well as serious economic impacts, without contributing to conservation goals of the AMs.

    Response: We agree. For all of the reasons described in detail in the initial emergency rule, as well as those reasons in the preamble above, allowing the emergency measures to expire before the end of the fishing year would undermine the goals of the emergency action. As a result, this rule extends the emergency measures for the remainder of the 2017 fishing year to prevent disruption to Mid-Atlantic trawl vessels in the middle of the fishing year, maintain fairness and equity, and continue to mitigate the negative economic impacts on these vessels that the AMs would otherwise impose.

    Classification

    The NMFS Assistant Administrator has determined that this extension to the emergency rule is consistent with the criteria and justifications for use of emergency measures in section 305(c) of the Magnuson-Stevens Act, and is consistent with the Northeast Multispecies FMP, other provisions of the Magnuson-Stevens Act, the Administrative Procedure Act (APA), and other applicable law.

    Section 553 of the APA establishes procedural requirements applicable to rulemaking by Federal agencies. The purpose of these requirements is to ensure public access to the Federal rulemaking process and to give the public adequate notice and opportunity for comment. Pursuant to 5 U.S.C. 553(b)(B), the Assistant Administrator for Fisheries finds good cause to waive prior notice and the opportunity for public comment because it would be impracticable and contrary to the public interest and would prevent the positive benefits this rule is intended to provide. Additionally, because this rule relieves a restriction and removes the southern windowpane flounder AM areas for non-groundfish trawl vessels, it is not subject to the 30-day delayed effectiveness provision of the APA under 5 U.S.C. 553(d)(1).

    Without additional action, the emergency measures implemented on September 1, 2017, to remove the AMs for non-groundfish vessels would expire before the end of the 2017 fishing year. Implementing the AMs only for non-groundfish trawl vessels would present fairness and equity issues. The AMs would also have substantial economic impacts without contributing further to the conservation goals of the AMs. The AM areas eliminate access to target species that vessels are unlikely to recoup even if they move to fish in other areas. Thus, extending the emergency measures to remove the AMs for the remainder of the 2017 fishing year continues to mitigate serious economic harm to affected vessels until permanent measures can be implemented. There are less than 3 months remaining in the 2017 fishing year. The time necessary to provide prior notice and an opportunity for public comment would allow the emergency measures to expire, and prevent this action from being implemented before the end of the fishing year.

    Additionally, the original emergency rule provided for public comment on the emergency measures. The Council also addressed this issue in Framework 57 to the Northeast Multispecies FMP, which is scheduled for implementation for the 2018 fishing year beginning on May 1, 2018. During the development of Framework 57, there was extensive public comment on potential changes to the windowpane flounder AMs. Thus, prior notice and opportunity for public comment for this rule would not provide added benefit that would outweigh the need to avoid unnecessary economic harm on non-groundfish trawl vessels fishing in Southern New England.

    This action is being taken pursuant to the emergency provision of the Magnuson-Stevens Act and is exempt from Office of Management and Budget review.

    This emergency rule is exempt from the procedures of the Regulatory Flexibility Act because the rule is issued without opportunity for prior notice and opportunity for public comment.

    List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Recordkeeping and reporting requirements.

    Dated: February 21, 2018. Samuel D. Rauch, III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 648 is amended as follows:

    PART 648—FISHERIES OF THE NORTHEASTERN UNITED STATES 1. The authority citation for part 648 continues to read as follows: Authority:

    16 U.S.C. 1801 et seq.

    2. In § 648.90, add paragraph (a)(5)(i)(D)(1)(iii) effective March 1, 2018, through April 30, 2018.

    The addition reads as follows:

    § 648.90 NE multispecies assessment, framework procedures and specifications, and flexible area action system.

    (a) * * *

    (5) * * *

    (i) * * *

    (D) * * *

    (1) * * *

    (iii) Emergency rule reducing the duration of southern windowpane flounder AM for non-groundfish vessels. Effective March 1, 2018, through April 30, 2018, the southern windowpane flounder AM is removed for all vessels fishing with trawl gear with a codend mesh size equal to or greater than 5 inches (12.7 cm) in other, non-specified sub-components of the fishery, including, but not limited to, exempted fisheries that occur in Federal waters and fisheries harvesting exempted species specified in § 648.80(b)(3).

    [FR Doc. 2018-03899 Filed 2-26-18; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 [Docket No. 170817779-8161-02] RIN 0648-XF636 Fisheries of the Exclusive Economic Zone Off Alaska; Bering Sea and Aleutian Islands; 2018 and 2019 Harvest Specifications for Groundfish AGENCY:

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

    ACTION:

    Final rule; closures.

    SUMMARY:

    NMFS announces final 2018 and 2019 harvest specifications, apportionments, and prohibited species catch allowances for the groundfish fishery of the Bering Sea and Aleutian Islands management area (BSAI). This action is necessary to establish harvest limits for groundfish during the 2018 and 2019 fishing years, and to accomplish the goals and objectives of the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP). The intended effect of this action is to conserve and manage the groundfish resources in the BSAI in accordance with the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).

    DATES:

    Effective from 1200 hrs, Alaska local time (A.l.t.), February 27, 2018, through 2400 hrs, A.l.t., December 31, 2019.

    ADDRESSES:

    Electronic copies of the Alaska Groundfish Harvest Specifications Final Environmental Impact Statement (EIS), Record of Decision (ROD), Supplementary Information Report (SIR) to the EIS, and the Initial Regulatory Flexibility Analysis (IRFA) prepared for this action are available from http://alaskafisheries.noaa.gov. The final 2017 Stock Assessment and Fishery Evaluation (SAFE) report for the groundfish resources of the BSAI, dated November 2017, as well as the SAFE reports for previous years, are available from the North Pacific Fishery Management Council (Council) at 605 West 4th Avenue, Suite 306, Anchorage, AK, 99510-2252, phone 907-271-2809, or from the Council's website at http://www.npfmc.org/.

    FOR FURTHER INFORMATION CONTACT:

    Steve Whitney, 907-586-7228.

    SUPPLEMENTARY INFORMATION:

    Federal regulations at 50 CFR part 679 implement the FMP and govern the groundfish fisheries in the BSAI. The Council prepared the FMP, and NMFS approved it, under the Magnuson-Stevens Act. General regulations governing U.S. fisheries also appear at 50 CFR part 600.

    The FMP and its implementing regulations require NMFS, after consultation with the Council, to specify annually the total allowable catch (TAC) for each target species category. The sum of all TAC for all groundfish species in the BSAI must be within the optimum yield (OY) range of 1.4 million to 2.0 million metric tons (mt) (see § 679.20(a)(1)(i)(A)). This final rule specifies the TAC at 2.0 million mt for both 2018 and 2019. NMFS also must specify apportionments of TAC, prohibited species catch (PSC) allowances, and prohibited species quota (PSQ) reserves established by § 679.21; seasonal allowances of pollock, Pacific cod, and Atka mackerel TAC; American Fisheries Act allocations; Amendment 80 allocations; Community Development Quota (CDQ) reserve amounts established by § 679.20(b)(1)(ii); and acceptable biological catch (ABC) surpluses and reserves for CDQ groups and the Amendment 80 cooperative for flathead sole, rock sole, and yellowfin sole. The final harvest specifications set forth in Tables 1 through 25 of this action satisfy these requirements.

    Section 679.20(c)(3)(i) further requires NMFS to consider public comment on the proposed harvest specifications and to publish final harvest specifications in the Federal Register. The proposed 2018 and 2019 harvest specifications for the groundfish fishery of the BSAI were published in the Federal Register on December 8, 2017 (82 FR 57906). Comments were invited and accepted through January 8, 2018. NMFS received no substantive comments on the proposed harvest specifications. NMFS consulted with the Council on the final 2018 and 2019 harvest specifications during the December 2017 Council meeting in Anchorage, AK. After considering public comments, as well as biological and economic data that were available at the Council's December meeting, in this final rule NMFS implements the final 2018 and 2019 harvest specifications as recommended by the Council.

    ABC and TAC Harvest Specifications

    The final ABC levels for Alaska groundfish are based on the best available biological and socioeconomic information, including projected biomass trends, information on assumed distribution of stock biomass, and revised technical methods used to calculate stock biomass. In general, the development of ABCs and overfishing levels (OFLs) involves sophisticated statistical analyses of fish populations. The FMP specifies a series of six tiers to define OFL and ABC amounts based on the level of reliable information available to fishery scientists. Tier 1 represents the highest level of information quality available, while Tier 6 represents the lowest.

    In December 2017, the Council, its Scientific and Statistical Committee (SSC), and its Advisory Panel (AP) reviewed current biological and harvest information about the condition of the BSAI groundfish stocks. The Council's BSAI Groundfish Plan Team (Plan Team) compiled and presented this information in the final 2017 SAFE report for the BSAI groundfish fisheries, dated November 2017 (see ADDRESSES). The SAFE report contains a review of the latest scientific analyses and estimates of each species' biomass and other biological parameters, as well as summaries of the available information on the BSAI ecosystem and the economic condition of groundfish fisheries off Alaska. NMFS notified the public of the comment period for these harvest specifications—and of the publication of the 2017 SAFE report—in the notice of proposed harvest specifications. From the data and analyses in the SAFE report, the Plan Team recommended an OFL and ABC for each species or species group at the November 2017 Plan Team meeting.

    In December 2017, the SSC, AP, and Council reviewed the Plan Team's recommendations. The final TAC recommendations were based on the ABCs as adjusted for other biological and socioeconomic considerations, including maintaining the sum of all the TACs within the required OY range of 1.4 million to 2.0 million mt. As required by annual catch limit rules for all fisheries (74 FR 3178, January 16, 2009), none of the Council's recommended TACs for 2018 or 2019 exceed the final 2018 or 2019 ABCs for any species or species group. NMFS finds that the Council's recommended OFLs, ABCs, and TACs are consistent with the preferred harvest strategy and the biological condition of groundfish stocks as described in the 2017 SAFE report that was approved by the Council. Therefore, this final rule provides notice that the Secretary of Commerce (Secretary) approves the final 2018 and 2019 harvest specifications as recommended by the Council.

    The 2018 harvest specifications set in this final action will supersede the 2018 harvest specifications previously set in the final 2017 and 2018 harvest specifications (82 FR 11826, February 27, 2017). The 2019 harvest specifications herein will be superseded in early 2019 when the final 2019 and 2020 harvest specifications are published. Pursuant to this final action, the 2018 harvest specifications therefore will apply for the remainder of the current year (2018), while the 2019 harvest specifications are projected only for the following year (2019) and will be superseded in early 2019 by the final 2019 and 2020 harvest specifications. Because this final action (published in early 2018) will be superseded in early 2019 by the publication of the final 2019 and 2020 harvest specifications, it is projected that this final action will implement the harvest specifications for the BSAI for approximately one year.

    Other Actions Affecting the 2018 and 2019 Harvest Specifications Amendment 117: Reclassify Squid as an Ecosystem Species

    In June 2017, the Council recommended for Secretarial review Amendment 117 to the FMP. Amendment 117 would reclassify squid in the FMP as an “Ecosystem Component Species,” which is a category of non-target species that are not in need of conservation and management. Currently, NMFS annually sets an OFL, ABC, and TAC for squid in the BSAI groundfish harvest specifications. Under Amendment 117, OFL, ABC, and TAC specifications would no longer be required. Proposed regulations to implement Amendment 117 would prohibit directed fishing for squid, require recordkeeping and reporting to monitor and report catch of squid species annually, and establish a squid maximum retainable amount when directed fishing for groundfish species at 20 percent to discourage retention, while allowing flexibility to prosecute groundfish fisheries. Further details will be available on publication of the proposed rule for Amendment 117. If Amendment 117 and its implementing regulations are approved by the Secretary, Amendment 117 and its implementing regulations are anticipated to be effective by 2019. Until Amendment 117 is effective, NMFS will continue to publish OFLs, ABCs, and TACs for squid in the BSAI groundfish harvest specifications.

    State of Alaska Guideline Harvest Levels

    The Alaska Board of Fisheries (BOF), a regulatory body for the Alaska Department of Fish and Game, established a guideline harvest level (GHL) in State of Alaska (State) waters between 164 and 167 degrees west longitude in the Bering Sea subarea (BS) equal to 6.4 percent of the Pacific cod ABC for the BS. The Council recommended that the final 2018 and 2019 Pacific cod TACs accommodate the State's GHLs for Pacific cod in State waters in the BS. The Council and its Plan Team, SSC, and AP recommended that the sum of all State and Federal water Pacific cod removals from the BS not exceed the final ABC recommendations of 201,000 mt for 2018 and 170,000 mt for 2019. Accordingly, the Council recommended that the final 2018 and 2019 Pacific cod TACs in the BS account for State GHLs, and NMFS sets the final BS TAC at 6.4 percent less than the Pacific cod BS ABC.

    For 2018 and 2019, the BOF established a GHL in State waters in the Aleutian Islands subarea (AI) equal to 27 percent of the Pacific cod ABC for the AI. The Council recommended that the final 2018 and 2019 Pacific cod TACs accommodate the State's GHLs for Pacific cod in State waters in the AI. The Council and its Plan Team, SSC, and AP recommended that the sum of all State and Federal water Pacific cod removals from the AI not exceed the final ABC recommendations of 21,500 mt. Accordingly, the Council recommended that the final 2018 and 2019 Pacific cod TACs in the AI account for State GHLs, and in this final rule NMFS sets the final AI TAC at 27 percent less than the final AI ABC.

    Changes From the Proposed 2018 and 2019 Harvest Specifications for the BSAI

    The Council's recommendations for the proposed 2018 and 2019 harvest specifications (82 FR 57906, December 8, 2017) were based largely on information contained in the 2016 SAFE report for the BSAI groundfish fisheries. Through the proposed harvest specifications, NMFS notified the public that these harvest specifications could change, as the Council would consider information contained in the final 2017 SAFE report; recommendations from the Plan Team, SSC, and AP committees; and public testimony when making its recommendations for final harvest specifications at the December 2017 Council meeting. NMFS further notified the public that, as required by the FMP and its implementing regulations, the sum of the TACs must be within the OY range of 1.4 million and 2.0 million mt.

    Information contained in the 2017 SAFE report indicates biomass changes from the 2016 SAFE report for several groundfish species. The 2017 report was made available for public review during the public comment period for the proposed harvest specifications. At the December 2017 Council meeting, the SSC recommended the 2018 and 2019 ABCs for many species based on the best and most recent information contained in the 2017 SAFE reports. This recommendation resulted in an ABC sum total for all BSAI groundfish species in excess of 2 million mt for both 2018 and 2019.

    Based on increased fishing effort in 2017, the Council recommends final BS pollock TACs increase by 4,483 mt in 2018 and increase by 23,142 mt in 2019 compared to the proposed 2018 and 2019 BS pollock TACs. In terms of percentage, the largest increases in final 2018 TACs relative to the proposed 2018 TACs were for BSAI “other flatfish” and BSAI sharks, while the largest increases for 2019 also included sablefish. The 2018 increases were to account for higher incidental catches of these species in 2017. Other increases in the final 2018 TACs relative to the proposed 2018 TACs included sablefish, Greenland turbot, Alaska plaice, BS Pacific ocean perch, northern rockfish, Central Aleutian and Western Aleutian (CAI/WAI) blackspotted and rougheye rockfish, shortraker rockfish, AI “other rockfish,” Eastern Aleutian Islands and Bering Sea (EAI/BS) Atka mackerel, skates, and sculpins. The 2018 increases were to account for higher interest in directed fishing or higher anticipated incidental catch needs.

    Decreases in final 2018 TACs compared to the proposed 2018 TACs were for Bogoslof pollock, BS Pacific cod, arrowtooth flounder, rock sole, flathead sole, EAI Pacific ocean perch, WAI Pacific ocean perch, BS/EAI blackspotted and rougheye rockfish, BS “other rockfish,” CAI Atka mackerel, WAI Atka mackerel, squids, and octopuses. As noted in the proposed 2018 and 2019 harvest specifications, the BS Pacific cod ABC and TAC proposed for 2018 and 2019 decreased based on the final 2017 stock assessment. The remaining 2018 decreases were to account for the increases to the TACs for the species listed above and for the requirement not to exceed the 2.0 million mt OY limit on overall TAC in the BSAI.

    The changes to TACs between the proposed and final harvest specifications are based on the most recent scientific and economic information and are consistent with the FMP, regulatory obligations, and harvest strategy as described in the proposed harvest specifications, including the upper limit for OY of 2.0 million mt. These changes are compared in Table 1A.

    Table 1 lists the Council's recommended final 2018 OFL, ABC, TAC, initial TAC (ITAC), and CDQ reserve allocations of the BSAI groundfish species or species groups; and Table 2 lists the Council's recommended final 2019 OFL, ABC, TAC, ITAC, and CDQ reserve allocations of the BSAI groundfish species or species groups. NMFS concurs in these recommendations. These final 2018 and 2019 TAC recommendations for the BSAI are within the OY range established for the BSAI and do not exceed the ABC for any species or species group. The apportionment of TAC amounts among fisheries and seasons is discussed below.

    Table 1—Final 2018 Overfishing Level (OFL), Acceptable Biological Catch (ABC), Total Allowable Catch (TAC), Initial TAC (ITAC), and CDQ Reserve Allocation of Groundfish in the BSAI 1 [Amounts are in metric tons] Species Area 2018 OFL ABC TAC ITAC 2 CDQ 3 Pollock 4 BS 4,797,000 2,592,000 1,364,341 1,227,907 136,434 AI 49,289 40,788 19,000 17,100 1,900 Bogoslof 130,428 60,800 450 450 0 Pacific cod 5 BS 238,000 201,000 188,136 168,005 20,131 AI 28,700 21,500 15,695 14,016 1,679 Sablefish BS 2,887 1,464 1,464 1,208 201 AI 3,917 1,988 1,988 1,615 335 Yellowfin sole BSAI 306,700 277,500 154,000 137,522 16,478 Greenland turbot BSAI 13,148 11,132 5,294 4,500 n/a BS n/a 9,718 5,125 4,356 548 AI n/a 1,414 169 144 0 Arrowtooth flounder BSAI 76,757 65,932 13,621 11,578 1,457 Kamchatka flounder BSAI 11,347 9,737 5,000 4,250 0 Rock sole BSAI 147,300 143,100 47,100 42,060 5,040 Flathead sole 6 BSAI 79,862 66,773 14,500 12,949 1,552 Alaska plaice BSAI 41,170 34,590 16,100 13,685 0 Other flatfish 7 BSAI 17,591 13,193 4,000 3,400 0 Pacific ocean perch BSAI 51,675 42,509 37,361 32,853 n/a BS n/a 11,861 11,861 10,082 0 EAI n/a 10,021 9,000 8,037 963 CAI n/a 7,787 7,500 6,698 803 WAI n/a 12,840 9,000 8,037 963 Northern rockfish BSAI 15,888 12,975 6,100 5,185 0 Blackspotted and Rougheye rockfish 8 BSAI 749 613 225 191 0 BS/EAI n/a 374 75 64 0 CAI/WAI n/a 239 150 128 0 Shortraker rockfish BSAI 666 499 150 128 0 Other rockfish 9 BSAI 1,816 1,362 845 718 0 BS n/a 791 275 234 0 AI n/a 571 570 485 0 Atka mackerel BSAI 108,600 92,000 71,000 63,403 7,597 BS/EAI n/a 36,820 36,500 32,595 3,906 CAI n/a 32,000 21,000 18,753 2,247 WAI n/a 23,180 13,500 12,056 1,445 Skates BSAI 46,668 39,082 27,000 22,950 0 Sculpins BSAI 53,201 39,995 5,000 4,250 0 Sharks BSAI 689 517 180 153 0 Squids BSAI 6,912 5,184 1,200 1,020 0 Octopuses BSAI 4,769 3,576 250 213 0 Total 6,235,729 3,779,809 2,000,000 1,791,308 196,081 1 These amounts apply to the entire BSAI management area unless otherwise specified. With the exception of pollock, and for the purpose of these harvest specifications, the Bering Sea subarea (BS) includes the Bogoslof District. 2 Except for pollock, the portion of the sablefish TAC allocated to hook-and-line and pot gear, and Amendment 80 species, 15 percent of each TAC is put into a non-specified reserve. The ITAC for these species is the remainder of the TAC after the subtraction of these reserves. For pollock and Amendment 80 species, ITAC is the non-CDQ allocation of TAC (see footnotes 3 and 5). 3 For the Amendment 80 species (Atka mackerel, flathead sole, rock sole, yellowfin sole, Pacific cod, and Aleutian Islands Pacific ocean perch), 10.7 percent of the TAC is reserved for use by CDQ participants (see §§ 679.20(b)(1)(ii)(C) and 679.31). Twenty percent of the sablefish TAC allocated to hook-and-line gear or pot gear, 7.5 percent of the sablefish TAC allocated to trawl gear, and 10.7 percent of the TACs for Bering Sea Greenland turbot and arrowtooth flounder are reserved for use by CDQ participants (see § 679.20(b)(1)(ii)(B) and (D)). Aleutian Islands Greenland turbot, “other flatfish,” Alaska plaice, Bering Sea Pacific ocean perch, northern rockfish, shortraker rockfish, blackspotted and rougheye rockfish, “other rockfish,” skates, sculpins, sharks, squids, and octopuses are not allocated to the CDQ program. 4 Under § 679.20(a)(5)(i)(A), the annual BS pollock TAC, after subtracting first for the CDQ directed fishing allowance (10 percent) and second for the incidental catch allowance (3.9 percent), is further allocated by sector for a pollock directed fishery as follows: inshore—50 percent; catcher/processor—40 percent; and motherships—10 percent. Under § 679.20(a)(5)(iii)(B)(2), the annual AI pollock TAC, after subtracting first for the CDQ directed fishing allowance (10 percent) and second for the incidental catch allowance (2,400 mt), is allocated to the Aleut Corporation for a pollock directed fishery. 5 The BS Pacific cod TAC is set to account for the 6.4 percent of the BS ABC for the State of Alaska's (State) guideline harvest level in State waters of the BS. The AI Pacific cod TAC is set to account for the 27 percent of the AI ABC for the State guideline harvest level in State waters of the AI. 6 “Flathead sole” includes Hippoglossoides elassodon (flathead sole) and Hippoglossoides robustus (Bering flounder). 7 “Other flatfish” includes all flatfish species, except for halibut (a prohibited species), flathead sole, Greenland turbot, rock sole, yellowfin sole, arrowtooth flounder, Kamchatka flounder, and Alaska plaice. 8 “Rougheye rockfish” includes Sebastes aleutianus (rougheye) and Sebastes melanostictus (blackspotted). 9 “Other rockfish” includes all Sebastes and Sebastolobus species except for Pacific ocean perch, northern rockfish, shortraker rockfish, and blackspotted and rougheye rockfish. Note: Regulatory areas and districts are defined at § 679.2 (BSAI = Bering Sea and Aleutian Islands Management Area, BS = Bering Sea subarea, AI = Aleutian Islands subarea, EAI = Eastern Aleutian district, CAI = Central Aleutian district, WAI = Western Aleutian district.) Table 1A—Comparison of Final 2018 and 2019 With Proposed 2018 and 2019 Total Allowable Catch in the BSAI [Amounts are in metric tons] Species Area 1 2018 final
  • TAC
  • 2018
  • proposed
  • TAC
  • 2018
  • difference
  • from
  • proposed
  • 2018
  • percentage
  • difference
  • from
  • proposed
  • 2019 final
  • TAC
  • 2019
  • proposed
  • TAC
  • 2019
  • difference
  • from
  • proposed
  • 2019
  • percentage
  • difference
  • from
  • proposed
  • Pollock BS 1,364,341 1,359,858 4,483 0.3 1,383,000 1,359,858 23,142 1.7 AI 19,000 19,000 0 0.0 19,000 19,000 0 0.0 Bogoslof 450 500 −50 −10.0 500 500 0 0.0 Pacific cod BS 188,136 194,936 −6,800 −3.5 159,120 194,936 −35,816 −18.4 AI 15,695 15,695 0 0.0 15,695 15,695 0 0.0 Sablefish BS 1,464 1,274 190 14.9 2,061 1,274 787 61.8 AI 1,988 1,735 253 14.6 2,798 1,735 1,063 61.3 Yellowfin sole BSAI 154,000 154,000 0 0.0 156,000 154,000 2,000 1.3 Greenland turbot BS 5,125 4,375 750 17.1 5,125 4,375 750 17.1 AI 169 125 44 35.2 169 125 44 35.2 Arrowtooth flounder BSAI 13,621 14,000 −379 −2.7 14,000 14,000 0 0.0 Kamchatka flounder BSAI 5,000 5,000 0 0.0 5,000 5,000 0 0.0 Rock sole BSAI 47,100 50,100 −3,000 −6.0 49,100 50,100 −1,000 −2.0 Flathead sole BSAI 14,500 15,500 −1,000 −6.5 16,500 15,500 1,000 6.5 Alaska plaice BSAI 16,100 13,000 3,100 23.8 16,252 13,000 3,252 25.0 Other flatfish BSAI 4,000 2,500 1,500 60.0 4,000 2,500 1,500 60.0 Pacific ocean perch BS 11,861 11,000 861 7.8 11,499 11,000 499 4.5 EAI 9,000 9,900 −900 −9.1 9,715 9,900 −185 −1.9 CAI 7,500 7,500 0 0.0 7,549 7,500 49 0.7 WAI 9,000 12,000 −3,000 −25.0 9,117 12,000 −2,883 −24.0 Northern rockfish BSAI 6,100 5,000 1,100 22.0 6,500 5,000 1,500 30.0 Blackspotted/Rougheye rockfish BS/EAI 75 100 −25 −25.0 75 100 −25 −25.0 CAI/WAI 150 125 25 20.0 150 125 25 20.0 Shortraker rockfish BSAI 150 125 25 20.0 150 125 25 20.0 Other rockfish BS 275 325 −50 −15.4 275 325 −50 −15.4 AI 570 550 20 3.6 570 550 20 3.6 Atka mackerel EAI/BS 36,500 34,000 2,500 7.4 33,780 34,000 −220 −0.6 CAI 21,000 21,500 −500 −2.3 24,895 21,500 3,395 15.8 WAI 13,500 13,910 −410 −2.9 13,825 13,910 −85 −0.6 Skates BSAI 27,000 26,000 1,000 3.8 27,000 26,000 1,000 3.8 Sculpins BSAI 5,000 4,500 500 11.1 5,000 4,500 500 11.1 Sharks BSAI 180 125 55 44.0 180 125 55 44.0 Squids BSAI 1,200 1,342 −142 −10.6 1,200 1,342 −142 −10.6 Octopuses BSAI 250 400 −150 −37.5 200 400 −200 −50.0 Total BSAI 2,000,000 2,000,000 0 0.0 2,000,000 2,000,000 0 0.0 1 Bering Sea subarea (BS), Aleutian Islands subarea (AI), Bering Sea and Aleutian Islands management area (BSAI), Eastern Aleutian District (EAI), Central Aleutian District (CAI), and Western Aleutian District (WAI).
    Table 2—Final 2019 Overfishing Level (OFL), Acceptable Biological Catch (ABC), Total Allowable Catch (TAC), Initial TAC (ITAC), and CDQ Reserve Allocation of Groundfish in the BSAI1 [Amounts are in metric tons] Species Area 2019 OFL ABC TAC ITAC 2 CDQ 3 Pollock 4 BS 4,592,000 2,467,000 1,383,000 1,244,700 138,300 AI 37,431 30,803 19,000 17,100 1,900 Bogoslof 130,428 60,800 500 500 0 Pacific cod 5 BS 201,000 170,000 159,120 142,094 17,026 AI 28,700 21,500 15,695 14,016 1,679 Sablefish BS 4,576 2,061 2,061 876 77 AI 6,209 2,798 2,798 595 52 Yellowfin sole BSAI 295,600 267,500 156,000 139,308 16,692 Greenland turbot BSAI 13,540 11,473 5,294 4,500 n/a BS n/a 10,016 5,125 4,356 548 AI n/a 1,457 169 144 0 Arrowtooth flounder BSAI 75,084 64,494 14,000 11,900 1,498 Kamchatka flounder BSAI 12,022 10,317 5,000 4,250 0 Rock sole BSAI 136,000 132,000 49,100 43,846 5,254 Flathead sole 6 BSAI 78,036 65,227 16,500 14,735 1,766 Alaska plaice BSAI 38,800 32,700 16,252 13,814 0 Other flatfish 7 BSAI 17,591 13,193 4,000 3,400 0 Pacific ocean perch BSAI 50,098 41,212 37,880 33,332 n/a BS n/a 11,499 11,499 9,774 0 EAI n/a 9,715 9,715 8,675 1,040 CAI n/a 7,549 7,549 6,741 808 WAI n/a 12,449 9,117 8,141 976 Northern rockfish BSAI 15,563 12,710 6,500 5,525 0 Blackspotted and Rougheye rockfish 8 BSAI 829 678 225 191 0 BS/EAI n/a 414 75 64 0 CAI/WAI n/a 264 150 128 0 Shortraker rockfish BSAI 666 499 150 128 0 Other rockfish 9 BSAI 1,816 1,362 845 718 0 BS n/a 791 275 234 0 AI n/a 571 570 485 0 Atka mackerel BSAI 97,200 84,400 72,500 64,743 7,758 EAI/BS n/a 33,780 33,780 30,166 3,614 CAI n/a 29,350 24,895 22,231 2,664 WAI n/a 21,270 13,825 12,346 1,479 Skates BSAI 44,202 36,957 27,000 22,950 0 Sculpins BSAI 53,201 39,995 5,000 4,250 0 Sharks BSAI 689 517 180 153 0 Squids BSAI 6,912 5,184 1,200 1,020 0 Octopuses BSAI 4,769 3,576 200 170 0 Total 5,942,962 3,578,956 2,000,000 1,788,813 195,373 1 These amounts apply to the entire BSAI management area unless otherwise specified. With the exception of pollock, and for the purpose of these harvest specifications, the Bering Sea subarea (BS) includes the Bogoslof District. 2 Except for pollock, the portion of the sablefish TAC allocated to hook-and-line and pot gear, and Amendment 80 species, 15 percent of each TAC is put into a non-specified reserve. The ITAC for these species is the remainder of the TAC after the subtraction of these reserves. For pollock and Amendment 80 species, ITAC is the non-CDQ allocation of TAC (see footnotes 3 and 5). 3 For the Amendment 80 species (Atka mackerel, flathead sole, rock sole, yellowfin sole, Pacific cod, and Aleutian Islands Pacific ocean perch), 10.7 percent of the TAC is reserved for use by CDQ participants (see §§ 679.20(b)(1)(ii)(C) and 679.31). Twenty percent of the sablefish TAC allocated to hook-and-line gear or pot gear, 7.5 percent of the sablefish TAC allocated to trawl gear, and 10.7 percent of the TACs for Bering Sea Greenland turbot and arrowtooth flounder are reserved for use by CDQ participants (see § 679.20(b)(1)(ii)(B) and (D)). Aleutian Islands Greenland turbot, “other flatfish,” Alaska plaice, Bering Sea Pacific ocean perch, northern rockfish, shortraker rockfish, blackspotted and rougheye rockfish, “other rockfish,” skates, sculpins, sharks, squids, and octopuses are not allocated to the CDQ program. 4 Under § 679.20(a)(5)(i)(A), the annual BS pollock TAC, after subtracting first for the CDQ directed fishing allowance (10 percent) and second for the incidental catch allowance (3.9 percent), is further allocated by sector for a pollock directed fishery as follows: inshore—50 percent; catcher/processor—40 percent; and motherships—10 percent. Under § 679.20(a)(5)(iii)(B)(2), the annual AI pollock TAC, after subtracting first for the CDQ directed fishing allowance (10 percent) and second for the incidental catch allowance (2,400 mt), is allocated to the Aleut Corporation for a pollock directed fishery. 5 The BS Pacific cod TAC is set to account for the 6.4 percent of the BS ABC for the State of Alaska's (State) guideline harvest level in State waters of the BS. The AI Pacific cod TAC is set to account for the 27 percent of the AI ABC for the State guideline harvest level in State waters of the AI. 6 “Flathead sole” includes Hippoglossoides elassodon (flathead sole) and Hippoglossoides robustus (Bering flounder). 7 “Other flatfish” includes all flatfish species, except for halibut (a prohibited species), flathead sole, Greenland turbot, rock sole, yellowfin sole, arrowtooth flounder, Kamchatka flounder, and Alaska plaice. 8 “Rougheye rockfish” includes Sebastes aleutianus (rougheye) and Sebastes melanostictus (blackspotted). 9 “Other rockfish” includes all Sebastes and Sebastolobus species except for Pacific ocean perch, northern rockfish, shortraker rockfish, and blackspotted and rougheye rockfish. Note: Regulatory areas and districts are defined at § 679.2 (BSAI = Bering Sea and Aleutian Islands management area, BS = Bering Sea subarea, AI = Aleutian Islands subarea, EAI = Eastern Aleutian district, CAI = Central Aleutian district, WAI = Western Aleutian district.) Groundfish Reserves and the Incidental Catch Allowance (ICA) for Pollock, Atka Mackerel, Flathead Sole, Rock Sole, Yellowfin Sole, and Aleutian Islands Pacific Ocean Perch

    Section 679.20(b)(1)(i) requires NMFS to reserve 15 percent of the TAC for each target species, except for pollock, hook-and-line and pot gear allocation of sablefish, and Amendment 80 species, in a non-specified reserve. Section 679.20(b)(1)(ii)(B) requires that NMFS allocate 20 percent of the hook-and-line or pot gear allocation of sablefish for the fixed-gear sablefish CDQ reserve for each subarea. Section 679.20(b)(1)(ii)(D) requires that NMFS allocate 7.5 percent of the trawl gear allocations of sablefish in the BS and AI and 10.7 percent of the Bering Sea Greenland turbot and arrowtooth flounder TACs to the respective CDQ reserves. Section 679.20(b)(1)(ii)(C) requires that NMFS allocate 10.7 percent of the TAC for Atka mackerel, Aleutian Islands Pacific ocean perch, yellowfin sole, rock sole, flathead sole, and Pacific cod to the CDQ reserves. Sections 679.20(a)(5)(i)(A) and 679.31(a) also require that 10 percent of the Bering Sea pollock TAC be allocated to the pollock CDQ directed fishing allowance (DFA). Similarly, §§ 679.20(a)(5)(iii)(B)(2)(i) and 679.31(a) require that 10 percent of the Aleutian Islands TAC be allocated to the pollock CDQ reserve. The entire Bogoslof District pollock TAC is allocated as an ICA pursuant to § 679.20(a)(5)(ii) because the Bogoslof District is closed to directed fishing for pollock by regulation (§ 679.22(a)(7)(i)(B)). With the exception of the hook-and-line or pot gear sablefish CDQ reserve, the regulations do not further apportion the CDQ allocations by gear.

    Pursuant to § 679.20(a)(5)(i)(A)(1), NMFS allocates a pollock ICA of 3.9 percent of the BS pollock TAC after subtracting the 10 percent CDQ reserve. This allowance is based on NMFS' examination of the pollock incidental catch, including the incidental catch by CDQ vessels, in target fisheries other than pollock from 2000 through 2017. During this 18-year period, the pollock incidental catch ranged from a low of 2.4 percent in 2006 to a high of 4.8 percent in 2014, with an 18-year average of 3.3 percent. Pursuant to § 679.20(a)(5)(iii)(B)(2)(ii), NMFS establishes a pollock ICA of 2,400 mt of the AI TAC after subtracting the 10-percent CDQ DFA. This allowance is based on NMFS' examination of the pollock incidental catch, including the incidental catch by CDQ vessels, in target fisheries other than pollock from 2003 through 2017. During this 15-year period, the incidental catch of pollock ranged from a low of 5 percent in 2006 to a high of 17 percent in 2014, with a 15-year average of 8 percent.

    Pursuant to § 679.20(a)(8) and (10), NMFS allocates ICAs of 4,000 mt of flathead sole, 6,000 mt of rock sole, 4,000 mt of yellowfin sole, 10 mt of WAI Pacific ocean perch, 120 mt of CAI Pacific ocean perch, 100 mt of EAI Pacific ocean perch, 20 mt of WAI Atka mackerel, 75 mt of CAI Atka mackerel, and 800 mt of EAI and BS Atka mackerel TAC after subtracting the 10.7 percent CDQ reserve. These ICA allowances are based on NMFS' examination of the incidental catch in other target fisheries from 2003 through 2016.

    The regulations do not designate the remainder of the non-specified reserve by species or species group. Any amount of the reserve may be apportioned to a target species that contributed to the non-specified reserves during the year, provided that such apportionments are consistent with § 679.20(a)(3) and do not result in overfishing (see § 679.20(b)(1)(i)). The Regional Administrator has determined that the ITACs specified for the species listed in Table 1 need to be supplemented from the non-specified reserve because U.S. fishing vessels have demonstrated the capacity to catch the full TAC allocations. Therefore, in accordance with § 679.20(b)(3), NMFS is apportioning the amounts shown in Table 3 from the non-specified reserve to increase the ITAC for shortraker rockfish, blackspotted and rougheye rockfish, “other rockfish,” sharks, and octopuses by 15 percent of the TAC in 2018 and 2019.

    Table 3—Final 2018 and 2019 Apportionment of Non-Specified Reserves to ITAC Categories [Amounts are in metric tons] Species-area or subarea 2018 ITAC 2018 reserve amount 2018 final ITAC 2019 ITAC 2019 reserve amount 2019 final ITAC Shortraker rockfish-BSAI 128 22 150 128 22 150 Rougheye rockfish-BS/EAI 64 11 75 64 11 75 Rougheye rockfish-CAI/WAI 128 22 150 128 22 150 Other rockfish-Bering Sea subarea 234 41 275 234 41 275 Other rockfish-Aleutian Islands subarea 485 85 570 485 85 570 Sharks 153 27 180 153 27 180 Octopuses 213 37 250 340 60 400 Total 1,405 245 1,650 1,532 268 1,800 Allocation of Pollock TAC Under the American Fisheries Act (AFA)

    Section 679.20(a)(5)(i)(A) requires that the BS pollock TAC be apportioned as a DFA, after subtracting 10 percent for the CDQ program and 3.9 percent for the ICA, as follows: 50 percent to the inshore sector, 40 percent to the catcher/processor (C/P) sector, and 10 percent to the mothership sector. In the BS, 45 percent of the DFA is allocated to the A season (January 20-June 10), and 55 percent of the DFA is allocated to the B season (June 10-November 1) (§§ 679.20(a)(5)(i)(B)(1) and 679.23(e)(2)). The Aleutian Islands directed pollock fishery allocation to the Aleut Corporation is the amount of pollock TAC remaining in the AI after subtracting 1,900 mt for the CDQ DFA (10 percent) and 2,400 mt for the ICA (§ 679.20(a)(5)(iii)(B)(2)). In the AI, the total A season apportionment of the TAC (including the AI directed fishery allocation, the CDQ allowance, and the ICA) may equal up to 40 percent of the ABC for AI pollock, and the remainder of the TAC is allocated to the B season (§ 679.20(a)(5)(iii)(B)(3)). Tables 4 and 5 list these 2018 and 2019 amounts.

    Section 679.20(a)(5)(iii)(B)(6) sets harvest limits for pollock in the A season (January 20 to June 10) in Areas 543, 542, and 541 (see § 679.20(a)(5)(iii)(B)(6)). In Area 543, the A season pollock harvest limit is no more than 5 percent of the Aleutian Islands pollock ABC. In Area 542, the A season pollock harvest limit is no more than 15 percent of the Aleutian Islands pollock ABC. In Area 541, the A season pollock harvest limit is no more than 30 percent of the Aleutian Islands pollock ABC.

    Section 679.20(a)(5)(i)(A)(4) also includes several specific requirements regarding BS pollock allocations. First, it requires that 8.5 percent of the pollock allocated to the C/P sector be available for harvest by AFA catcher vessels (CVs) with C/P sector endorsements, unless the Regional Administrator receives a cooperative contract that allows the distribution of harvest among AFA C/Ps and AFA CVs in a manner agreed to by all members. Second, AFA C/Ps not listed in the AFA are limited to harvesting not more than 0.5 percent of the pollock allocated to the C/P sector. Tables 4 and 5 list the 2018 and 2019 allocations of pollock TAC. Tables 20 through 25 list the AFA C/P and CV harvesting sideboard limits. The tables for the pollock allocations to the BS inshore pollock cooperatives and open access sector will be posted on the Alaska Region website at http://alaskafisheries.noaa.gov.

    Tables 4 and 5 also list seasonal apportionments of pollock and harvest limits within the Steller Sea Lion Conservation Area (SCA). The harvest within the SCA, as defined at § 679.22(a)(7)(vii), is limited to no more than 28 percent of the annual pollock DFA before 12:00 noon, April 1, as provided in § 679.20(a)(5)(i)(C). The A season pollock SCA harvest limit will be apportioned to each sector in proportion to each sector's allocated percentage of the DFA. Tables 4 and 5 list these 2018 and 2019 amounts by sector.

    Table 4—Final 2018 Allocations of Pollock TACS to the Directed Pollock Fisheries and to the CDQ Directed Fishing Allowances (DFA) 1 [Amounts are in metric tons] Area and sector 2018
  • allocations
  • 2018
  • A season 1
  • A season DFA SCA harvest limit 2 2018
  • B season 1
  • B season DFA
    Bering Sea subarea TAC 1 1,364,341 n/a n/a n/a CDQ DFA 136,434 61,395 38,202 75,039 ICA1 47,888 n/a n/a n/a Total Bering Sea non-CDQ DFA 1,180,019 531,008 330,405 649,010 AFA Inshore 590,009 265,504 165,203 324,505 AFA Catcher/Processors 3 472,007 212,403 132,162 259,604 Catch by C/Ps 431,887 194,349 n/a 237,538 Catch by CVs 3 40,121 18,054 n/a 22,066 Unlisted C/P Limit 4 2,360 1,062 n/a 1,298 AFA Motherships 118,002 53,101 33,041 64,901 Excessive Harvesting Limit 5 206,503 n/a n/a n/a Excessive Processing Limit 6 354,006 n/a n/a n/a Aleutian Islands subarea ABC 40,788 n/a n/a n/a Aleutian Islands subarea TAC 1 19,000 n/a n/a n/a CDQ DFA 1,900 760 n/a 1,140 ICA 2,400 1,200 n/a 1,200 Aleut Corporation 14,700 14,355 n/a 345 Area harvest limit 7 n/a n/a n/a n/a 541 12,236 n/a n/a n/a 542 6,118 n/a n/a n/a 543 2,039 n/a n/a n/a Bogoslof District ICA 8 450 n/a n/a n/a 1 Pursuant to § 679.20(a)(5)(i)(A), the Bering Sea subarea pollock, after subtracting the CDQ DFA (10 percent) and the ICA (3.9 percent), is allocated as a DFA as follows: Inshore sector—50 percent, catcher/processor sector (C/P)—40 percent, and mothership sector—10 percent. In the Bering Sea subarea, 45 percent of the DFA is allocated to the A season (January 20-June 10) and 55 percent of the DFA is allocated to the B season (June 10-November 1). Pursuant to § 679.20(a)(5)(iii)(B)(2)(i) through (iii), the annual Aleutian Islands pollock TAC, after subtracting first for the CDQ DFA (10 percent) and second for the ICA (2,400 mt), is allocated to the Aleut Corporation for a pollock directed fishery. In the Aleutian Islands subarea, the A season is allocated up to 40 percent of the ABC, and the B season is allocated the remainder of the pollock directed fishery. 2 In the Bering Sea subarea, pursuant to § 679.20(a)(5)(i)(C), no more than 28 percent of each sector's annual DFA may be taken from the SCA before noon, April 1. 3 Pursuant to § 679.20(a)(5)(i)(A)(4), 8.5 percent of the DFA allocated to listed catcher/processors shall be available for harvest only by AFA catcher vessels with catcher/processor sector endorsements delivering to listed catcher/processors, unless there is a C/P sector cooperative contract for the year. 4 Pursuant to § 679.20(a)(5)(i)(A)(4)(iii), the AFA unlisted catcher/processors are limited to harvesting not more than 0.5 percent of the catcher/processors sector's allocation of pollock. 5 Pursuant to § 679.20(a)(5)(i)(A)(6), NMFS establishes an excessive harvesting share limit equal to 17.5 percent of the sum of the non-CDQ pollock DFAs. 6 Pursuant to § 679.20(a)(5)(i)(A)(7), NMFS establishes an excessive processing share limit equal to 30.0 percent of the sum of the non-CDQ pollock DFAs. 7 Pursuant to § 679.20(a)(5)(iii)(B)(6), NMFS establishes harvest limits for pollock in the A season in Area 541 of no more than 30 percent, in Area 542 of no more than 15 percent, and in Area 543 of no more than 5 percent of the Aleutian Islands pollock ABC. 8 Pursuant to § 679.22(a)(7)(i)(B), the Bogoslof District is closed to directed fishing for pollock. The amounts specified are for ICA only and are not apportioned by season or sector. Note: Seasonal or sector apportionments may not total precisely due to rounding.
    Table 5—Final 2019 Allocations of Pollock TACS to the Directed Pollock Fisheries and to the CDQ Directed Fishing Allowances (DFA) 1 [Amounts are in metric tons] Area and sector 2019
  • allocations
  • 2019 A season 1 A season DFA SCA harvest limit 2 2019
  • B season 1
  • B season DFA
    Bering Sea subarea TAC 1 1,383,000 n/a n/a n/a CDQ DFA 138,300 62,235 38,724 76,065 ICA 1 48,543 n/a n/a n/a Total Bering Sea non-CDQ DFA 1,196,157 538,271 334,924 657,886 AFA Inshore 598,078 269,135 167,462 328,943 AFA Catcher/Processors 3 478,463 215,308 133,970 263,154 Catch by C/Ps 437,793 197,007 n/a 240,786 Catch by CVs 3 40,669 18,301 n/a 22,368 Unlisted C/P Limit 4 2,392 1,077 n/a 1,316 AFA Motherships 119,616 53,827 33,492 65,789 Excessive Harvesting Limit 5 209,327 n/a n/a n/a Excessive Processing Limit 6 358,847 n/a n/a n/a Aleutian Islands subarea ABC 30,803 n/a n/a n/a Aleutian Islands subarea TAC 1 19,000 n/a n/a n/a CDQ DFA 1,900 760 n/a 1,140 ICA 2,400 1,200 n/a 1,200 Aleut Corporation 14,700 10,361 n/a 4,339 Area harvest limit 7 n/a n/a n/a n/a 541 9,241 n/a n/a n/a 542 4,620 n/a n/a n/a 543 1,540 n/a n/a n/a Bogoslof District ICA 8 500 n/a n/a n/a 1 Pursuant to § 679.20(a)(5)(i)(A), the Bering Sea subarea pollock, after subtracting the CDQ DFA (10 percent) and the ICA (3.9 percent), is allocated as a DFA as follows: inshore sector—50 percent, catcher/processor sector (C/P)—40 percent, and mothership sector—10 percent. In the Bering Sea subarea, 45 percent of the DFA is allocated to the A season (January 20-June 10) and 55 percent of the DFA is allocated to the B season (June 10-November 1). Pursuant to § 679.20(a)(5)(iii)(B)(2)(i) through (iii), the annual Aleutian Islands pollock TAC, after subtracting first for the CDQ DFA (10 percent) and second the ICA (2,400 mt), is allocated to the Aleut Corporation for a pollock directed fishery. In the Aleutian Islands subarea, the A season is allocated up to 40 percent of the ABC, and the B season is allocated the remainder of the pollock directed fishery. 2 In the Bering Sea subarea, pursuant to § 679.20(a)(5)(i)(C), no more than 28 percent of each sector's annual DFA may be taken from the SCA before noon, April 1. 3 Pursuant to § 679.20(a)(5)(i)(A)(4), 8.5 percent of the DFA allocated to listed catcher/processors shall be available for harvest only by AFA catcher vessels with catcher/processor sector endorsements delivering to listed catcher/processors, unless there is a C/P sector cooperative contract for the year. 4 Pursuant to § 679.20(a)(5)(i)(A)(4)(iii), the AFA unlisted catcher/processors are limited to harvesting not more than 0.5 percent of the catcher/processors sector's allocation of pollock. 5 Pursuant to § 679.20(a)(5)(i)(A)(6), NMFS establishes an excessive harvesting share limit equal to 17.5 percent of the sum of the non-CDQ pollock DFAs. 6 Pursuant to § 679.20(a)(5)(i)(A)(7), NMFS establishes an excessive processing share limit equal to 30.0 percent of the sum of the non-CDQ pollock DFAs. 7 Pursuant to § 679.20(a)(5)(iii)(B)(6), NMFS establishes harvest limits for pollock in the A season in Area 541 of no more than 30 percent, in Area 542 of no more than 15 percent, and in Area 543 of no more than 5 percent of the Aleutian Islands pollock ABC. 8 Pursuant to § 679.22(a)(7)(i)(B), the Bogoslof District is closed to directed fishing for pollock. The amounts specified are for ICA only and are not apportioned by season or sector. Note: Seasonal or sector apportionments may not total precisely due to rounding.
    Allocation of the Atka Mackerel TACs

    Section 679.20(a)(8) allocates the Atka mackerel TACs to the Amendment 80 and BSAI trawl limited access sectors, after subtracting the CDQ reserves, ICAs for the BSAI trawl limited access sector and non-trawl gear sector, and the jig gear allocation (Tables 6 and 7). The percentage of the ITAC for Atka mackerel allocated to the Amendment 80 and BSAI trawl limited access sectors is listed in Table 33 to 50 CFR part 679 and in § 679.91. Pursuant to § 679.20(a)(8)(i), up to 2 percent of the EAI and the BS Atka mackerel ITAC may be allocated to vessels using jig gear. The percent of this allocation is recommended annually by the Council based on several criteria, including, among other criteria, the anticipated harvest capacity of the jig gear fleet. The Council recommended, and NMFS approves, a 0.5 percent allocation of the Atka mackerel ITAC in the EAI and BS to the jig gear sector in 2018 and 2019.

    Section 679.20(a)(8)(ii)(A) apportions the Atka mackerel TAC into two equal seasonal allowances. Section 679.23(e)(3) sets the first seasonal allowance for directed fishing with trawl gear from January 20 through June 10 (A season), and the second seasonal allowance from June 10 through December 31 (B season). Section 679.23(e)(4)(iii) applies Atka mackerel seasons to CDQ Atka mackerel trawl fishing. The ICA and jig gear allocations are not apportioned by season.

    Section 679.20(a)(8)(ii)(C)(1)(i) and (ii) limits Atka mackerel catch within waters 0 nm to 20 nm of Steller sea lion sites listed in Table 6 to 50 CFR part 679 and located west of 178° W longitude to no more than 60 percent of the annual TACs in Areas 542 and 543, and equally divides the annual TAC between the A and B seasons as defined at § 679.23(e)(3). Section 679.20(a)(8)(ii)(C)(2) requires that the annual TAC in Area 543 will be no more than 65 percent of the ABC in Area 543. Section 679.20(a)(8)(ii)(D) requires that any unharvested Atka mackerel A season allowance that is added to the B season be prohibited from being harvested within waters 0 nm to 20 nm of Steller sea lion sites listed in Table 6 to 50 CFR part 679 and located in Areas 541, 542, and 543.

    Tables 6 and 7 list these 2018 and 2019 Atka mackerel seasonal and area allowances, and the sector allocations. One Amendment 80 cooperative has formed for the 2018 fishing year. The 2019 allocations for Atka mackerel between Amendment 80 cooperatives and the Amendment 80 limited access sector will not be known until eligible participants apply for participation in the program by November 1, 2018.

    Table 6—Final 2018 Seasonal and Spatial Allowances, Gear Shares, CDQ Reserve, Incidental Catch Allowance, and Amendment 80 Allocations of the BSAI ATKA Mackerel TAC [Amounts are in metric tons] Sector 1 Season 234 2018 allocation by area Eastern Aleutian District/Bering Sea Central Aleutian District 5 Western Aleutian District TAC n/a 36,500 21,000 13,500 CDQ reserve Total 3,906 2,247 1,445 A 1,953 1,124 722 Critical Habitat n/a 674 433 B 1,953 1,124 722 Critical Habitat n/a 674 433 Non-CDQ TAC n/a 32,595 18,753 12,056 ICA Total 800 75 20 Jig 6 Total 159 0 0 BSAI trawl limited access Total 3,164 1,868 0 A 1,582 934 0 Critical Habitat n/a 560 0 B 1,582 934 0 Critical Habitat n/a 560 0 Amendment 80 sector Total 28,472 16,885 12,056 A 14,236 8,443 6,028 Critical Habitat n/a 5,066 3,617 B 14,236 8,443 6,028 Critical Habitat n/a 5,066 3,617 1 Section 679.20(a)(8)(ii) allocates the Atka mackerel TACs, after subtracting the CDQ reserves, jig gear allocation, and ICAs, to the Amendment 80 and BSAI trawl limited access sectors. The allocation of the ITAC for Atka mackerel to the Amendment 80 and BSAI trawl limited access sectors is established in Table 33 to 50 CFR part 679 and § 679.91. The CDQ reserve is 10.7 percent of the TAC for use by CDQ participants (see §§ 679.20(b)(1)(ii)(C) and 679.31). 2 Sections 679.20(a)(8)(ii)(A) and 679.22(a) establish temporal and spatial limitations for the Atka mackerel fishery. 3 The seasonal allowances of Atka mackerel are 50 percent in the A season and 50 percent in the B season. 4 Section 679.23(e)(3) authorizes directed fishing for Atka mackerel with trawl gear during the A season from January 20 to June 10 and the B season from June 10 to December 31. 5 Section 679.20(a)(8)(ii)(C)(1)(i) limits no more than 60 percent of the annual TACs in Areas 542 and 543 to be caught inside of Steller sea lion critical habitat; section 679.20(a)(8)(ii)(C)(1)(ii) equally divides the annual TACs between the A and B seasons as defined at § 679.23(e)(3); and section 679.20(a)(8)(ii)(C)(2) requires the TAC in Area 543 shall be no more than 65 percent of ABC in Area 543. 6 Section 679.20(a)(8)(i) requires that up to 2 percent of the Eastern Aleutian District and the Bering Sea subarea TAC be allocated to jig gear after subtracting the CDQ reserve and the ICA. NMFS set the amount of this allocation for 2018 at 0.5 percent. The jig gear allocation is not apportioned by season. Note: Seasonal or sector apportionments may not total precisely due to rounding. Table 7—Final 2019 Seasonal and Spatial Allowances, Gear Shares, CDQ Reserve, Incidental Catch Allowance, and Amendment 80 Allocation of the BSAI ATKA Mackerel TAC [Amounts are in metric tons] Sector 1 Season 234 2019 allocation by area Eastern Aleutian District/Bering Sea 5 Central Aleutian District 5 Western Aleutian District 5 TAC n/a 33,780 24,895 13,825 CDQ reserve Total 3,614 2,664 1,479 A 1,807 1,332 740 Critical Habitat n/a 799 444 B 1,807 1,332 740 Critical Habitat n/a 799 444 non-CDQ TAC n/a 30,166 22,231 12,346 ICA Total 800 75 20 Jig 6 Total 147 0 0 BSAI trawl limited access Total 2,922 2,216 0 A 1,461 1,108 0 Critical Habitat n/a 665 0 B 1,461 1,108 0 Critical Habitat n/a 665 0 Amendment 80 sectors 7 Total 26,297 20,016 12,346 A 13,148 10,008 6,173 Critical Habitat n/a 6,005 3,704 B 13,148 10,008 6,173 Critical Habitat n/a 6,005 3,704 1 Section 679.20(a)(8)(ii) allocates the Atka mackerel TACs, after subtracting the CDQ reserves, jig gear allocation, and ICAs, to the Amendment 80 and BSAI trawl limited access sectors. The allocation of the ITAC for Atka mackerel to the Amendment 80 and BSAI trawl limited access sectors is established in Table 33 to 50 CFR part 679 and § 679.91. The CDQ reserve is 10.7 percent of the TAC for use by CDQ participants (see §§ 679.20(b)(1)(ii)(C) and 679.31). 2 Sections 679.20(a)(8)(ii)(A) and 679.22(a) establish temporal and spatial limitations for the Atka mackerel fishery. 3 The seasonal allowances of Atka mackerel are 50 percent in the A season and 50 percent in the B season. 4 Section 679.23(e)(3) authorizes directed fishing for Atka mackerel with trawl gear during the A season from January 20 to June 10 and the B season from June 10 to December 31. 5 Section 679.20(a)(8)(ii)(C)(1)(i) limits no more than 60 percent of the annual TACs in Areas 542 and 543 to be caught inside of Steller sea lion critical habitat; section 679.20(a)(8)(ii)(C)(1)(ii) equally divides the annual TACs between the A and B seasons as defined at § 679.23(e)(3); and section 679.20 (a)(8)(ii)(C)(2) requires the TAC in Area 543 shall be no more than 65 percent of ABC in Area 543. 6 Section 679.20(a)(8)(i) requires that up to 2 percent of the Eastern Aleutian District and the Bering Sea subarea TAC be allocated to jig gear after subtracting the CDQ reserve and the ICA. NMFS set the amount of this allocation for 2019 at 0.5 percent. The jig gear allocation is not apportioned by season. 7 The 2019 allocations for Atka mackerel between Amendment 80 cooperatives and the Amendment 80 limited access sector will not be known until eligible participants apply for participation in the program by November 1, 2018. NMFS will post 2019 Amendment 80 allocations when they become available in December 2018. Note: Seasonal or sector apportionments may not total precisely due to rounding. Allocation of the Pacific Cod TAC

    The Council separated Bering Sea and Aleutian Islands subarea OFLs, ABCs, and TACs for Pacific cod in 2014 (79 FR 12108, March 4, 2014). Section 679.20(b)(1)(ii)(C) allocates 10.7 percent of the Bering Sea TAC and Aleutian Islands TAC to the CDQ program. After CDQ allocations have been deducted from the respective Bering Sea and Aleutian Islands Pacific cod TACs, the remaining Bering Sea and Aleutian Islands Pacific cod TACs are combined for calculating further BSAI Pacific cod sector allocations. If the non-CDQ Pacific cod TAC is or will be reached in either the Bering Sea or the Aleutian Islands subareas, NMFS will prohibit non-CDQ directed fishing for Pacific cod in that subarea as provided in § 679.20(d)(1)(iii).

    Section 679.20(a)(7)(i) and (ii) allocates to the non-CDQ sectors the Pacific cod TAC in the combined BSAI TAC, after subtracting 10.7 percent for the CDQ program, as follows: 1.4 percent to vessels using jig gear; 2.0 percent to hook-and-line or pot CVs less than 60 ft (18.3 m) length overall (LOA); 0.2 percent to hook-and-line CVs greater than or equal to 60 ft (18.3 m) LOA; 48.7 percent to hook-and-line C/Ps; 8.4 percent to pot CVs greater than or equal to 60 ft (18.3 m) LOA; 1.5 percent to pot C/Ps; 2.3 percent to AFA trawl C/Ps; 13.4 percent to Amendment 80 sector; and 22.1 percent to trawl CVs. The ICA for the hook-and-line and pot sectors will be deducted from the aggregate portion of Pacific cod TAC allocated to the hook-and-line and pot sectors. For 2018 and 2019, the Regional Administrator establishes an ICA of 400 mt based on anticipated incidental catch by these sectors in other fisheries.

    The ITAC allocation of Pacific cod to the Amendment 80 sector is established in Table 33 to 50 CFR part 679 and § 679.91. One Amendment 80 cooperative has formed for the 2018 fishing year. The 2019 allocations for Amendment 80 species between Amendment 80 cooperatives and the Amendment 80 limited access sector will not be known until eligible participants apply for participation in the program by November 1, 2018.

    The Pacific cod ITAC is apportioned into seasonal allowances to disperse the Pacific cod fisheries over the fishing year (see §§ 679.20(a)(7)(i)(B), 679.20(a)(7)(iv)(A), and 679.23(e)(5)). In accordance with § 679.20(a)(7)(iv)(B) and (C), any unused portion of a seasonal Pacific cod allowance for any sector, except the jig sector, will become available at the beginning of that sector's next seasonal allowance.

    Section 679.20(a)(7)(vii) requires the Regional Administrator to establish an Area 543 Pacific cod harvest limit based on Pacific cod abundance in Area 543. Based on the 2017 stock assessment, the Regional Administrator determined the Area 543 Pacific cod harvest limit to be 25.6 percent of the Aleutian Islands Pacific cod TAC for 2018 and 2019. NMFS will first subtract the State GHL Pacific cod amount from the Aleutian Islands Pacific cod ABC. Then NMFS will determine the harvest limit in Area 543 by multiplying the percentage of Pacific cod estimated in Area 543 by the remaining ABC for Aleutian Islands Pacific cod. Based on these calculations, the Area 543 harvest limit is 4,018 mt.

    Section 679.20(a)(7)(viii) requires specification of annual Pacific cod allocations for the Aleutian Islands non-CDQ ICA, non-CDQ DFA, CV Harvest Set-Aside, and Unrestricted Fishery, as well as the Bering Sea Trawl CV A-Season Sector Limitation. The CV Harvest Set-Aside is a portion of the AI Pacific cod TAC that is available for harvest by catcher vessels directed fishing for AI Pacific cod and delivering their catch for processing to an AI shoreside processor. The CV Harvest Set-Aside will be effective in a fishing year if certain notification and performance requirements are met. First, in accordance with § 679.20(a)(7)(viii)(D), NMFS must receive timely and complete notification of intent to process AI Pacific cod from either the City Manager of the City of Adak or the City Administrator for Atka prior to the start of that fishing year. Second, if the performance requirement in § 679.20(a)(7)(viii)(E)(4), which requires a set amount of the Aleutian Islands CV Harvest Set-Aside to be landed at Aleutian Islands shoreplants on or before February 28, 2018, is not met during that fishing year, then the Aleutian Islands CV Harvest Set-Aside is lifted and the Bering Sea Trawl CV A-Season Sector Limitation is suspended for the remainder of that fishing year.

    For 2018, NMFS received prior to October 31, 2017, timely and complete notice from the City of Adak indicating an intent to process AI Pacific cod in 2018. Accordingly, the harvest limits in Table 9a will be in effect in 2018, subject to the requirements outlined in § 679.20(a)(7)(viii)(E)(4): If less than 1,000 mt of the Aleutian Islands CV Harvest Set-Aside is landed at Aleutian Islands shoreplants on or before February 28, 2018, then for the remainder of the year the Aleutian Islands CV Harvest Set-Aside is lifted and the Bering Sea Trawl CV A-Season Sector Limitation is suspended. If the entire Aleutian Islands CV Harvest Set-Aside is fully harvested and delivered to Aleutian Islands shoreplants before March 15, 2018, then the Bering Sea Trawl CV A-Season Sector Limitation will be suspended for the remainder of the fishing year.

    The CDQ and non-CDQ seasonal allowances by gear based on the 2018 and 2019 Pacific cod TACs are listed in Tables 8 and 9, and are based on the sector allocation percentages and seasonal allowances for Pacific cod set forth at § 679.20(a)(7)(i)(B) and (a)(7)(iv)(A); and the seasons for Pacific cod set forth at § 679.23(e)(5).

    Table 8—Final 2018 Gear Shares and Seasonal Allowances of the BSAI Pacific Cod TAC [Amounts are in metric tons] Gear sector Percent 2018 share of gear sector total 2018 share of sector total 2018 seasonal apportionment Seasons Amount BS TAC n/a 188,136 n/a n/a n/a BS CDQ n/a 20,131 n/a see § 679.20(a)(7)(i)(B) n/a BS non-CDQ TAC n/a 168,005 n/a n/a n/a AI TAC n/a 15,695 n/a n/a n/a AI CDQ n/a 1,679 n/a see § 679.20(a)(7)(i)(B) n/a AI non-CDQ TAC n/a 14,016 n/a n/a n/a Western Aleutian Island Limit n/a 4,018 n/a n/a n/a Total BSAI non-CDQ TAC 1 100 182,021 n/a n/a n/a Total hook-and-line/pot gear 60.8 110,669 n/a n/a n/a Hook-and-line/pot ICA 2 n/a 400 n/a see § 679.20(a)(7)(ii)(B) n/a Hook-and-line/pot sub-total n/a 110,269 n/a n/a n/a Hook-and-line catcher/processor 48.7 n/a 88,324 Jan 1-Jun 10 45,045 Jun 10-Dec 31 43,279 Hook-and-line catcher vessel ≥60 ft LOA 0.2 n/a 363 Jan 1-Jun 10 185 Jun 10-Dec 31 178 Pot catcher/processor 1.5 n/a 2,720 Jan 1-Jun 10 1,387 Sept 1-Dec 31 1,333 Pot catcher vessel ≥60 ft LOA 8.4 n/a 15,235 Jan 1-Jun 10 7,770 Sept 1-Dec 31 7,465 Catcher vessel <60 ft LOA using hook-and-line or pot gear 2 n/a 3,627 n/a n/a Trawl catcher vessel 22.1 40,227 n/a Jan 20-Apr 1 29,768 Apr 1-Jun 10 4,425 Jun 10-Nov 1 6,034 AFA trawl catcher/processor 2.3 4,186 n/a Jan 20-Apr 1 3,140 Apr 1-Jun 10 1,047 Jun 10-Nov 1 0 Amendment 80 13.4 24,391 n/a Jan 20-Apr 1 18,293 Apr 1-Jun 10 6,098 Jun 10-Nov 1 0 Jig 1.4 2,548 n/a Jan 1-Apr 30 1,529 Apr 30-Aug 31 510 Aug 31-Dec 31 510 1 The gear shares and seasonal allowances for BSAI Pacific cod TAC are based on the sum of the BS and AI Pacific cod TACs, after the subtraction of CDQ. If the TAC for Pacific cod in either the AI or BS is reached, then directed fishing for Pacific cod in that subarea may be prohibited, even if a BSAI allowance remains. 2 The ICA for the hook-and-line and pot sectors will be deducted from the aggregate portion of Pacific cod TAC allocated to the hook-and-line and pot sectors. The Regional Administrator approves an ICA of 400 mt for 2018 based on anticipated incidental catch in these fisheries. Note: Seasonal or sector apportionments may not total precisely due to rounding. Table 9—Final 2019 Gear Shares and Seasonal Allowances of the BSAI Pacific Cod TAC [Amounts are in metric tons] Gear sector Percent 2019 share of gear sector total 2019 share of sector total 2019 seasonal apportionment Seasons Amount BS TAC n/a 159,120 n/a n/a n/a BS CDQ n/a 17,026 n/a see § 679.20(a)(7)(i)(B) n/a BS non-CDQ TAC n/a 142,094 n/a n/a n/a AI TAC n/a 15,695 n/a n/a n/a AI CDQ n/a 1,679 n/a see § 679.20(a)(7)(i)(B) n/a AI non-CDQ TAC n/a 14,016 n/a n/a n/a Western Aleutian Island Limit n/a 4,018 n/a n/a n/a Total BSAI non-CDQ TAC 1 n/a 156,110 n/a n/a n/a Total hook-and-line/pot gear 60.8 94,915 n/a n/a n/a Hook-and-line/pot ICA 2 n/a 400 n/a see § 679.20(a)(7)(ii)(B) n/a Hook-and-line/pot sub-total n/a 94,515 n/a n/a n/a Hook-and-line catcher/processor 48.7 n/a 75,705 Jan 1-Jun 10 38,610 Jun 10-Dec 31 37,095 Hook-and-line catcher vessel ≥60 ft LOA 0.2 n/a 311 Jan 1-Jun 10 159 Jun 10-Dec 31 152 Pot catcher/processor 1.5 n/a 2,332 Jan 1-Jun 10 1,189 Sept 1-Dec 31 1,143 Pot catcher vessel ≥60 ft LOA 8.4 n/a 13,058 Jan 1-Jun 10 6,660 Sept 1-Dec 31 6,398 Catcher vessel <60 ft LOA using hook-and-line or pot gear 2 n/a 3,109 n/a n/a Trawl catcher vessel 22.1 34,500 n/a Jan 20-Apr 1 25,530 Apr 1-Jun 10 3,795 Jun 10-Nov 1 5,175 AFA trawl catcher/processor 2.3 3,591 n/a Jan 20-Apr 1 2,693 Apr 1-Jun 10 898 Jun 10-Nov 1 0 Amendment 80 13.4 20,919 n/a Jan 20-Apr 1 15,689 Apr 1-Jun 10 5,230 Jun 10-Dec 31 0 Jig 1.4 2,186 n/a Jan 1-Apr 30 1,311 Apr 30-Aug 31 437 Aug 31-Dec 31 437 1 The gear shares and seasonal allowances for BSAI Pacific cod TAC are based on the sum of the BS and AI Pacific cod TACs, after the subtraction of CDQ. If the TAC for Pacific cod in either the AI or BS is reached, then directed fishing for Pacific cod in that subarea may be prohibited, even if a BSAI allowance remains. 2 The ICA for the hook-and-line and pot sectors will be deducted from the aggregate portion of Pacific cod TAC allocated to the hook-and-line and pot sectors. The Regional Administrator approves an ICA of 400 mt for 2019 based on anticipated incidental catch in these fisheries. Note: Seasonal or sector apportionments may not total precisely due to rounding. Table 9a—2018 and 2019 BSAI A-Season Pacific Cod Allocations and Limits if the Notification and Performance Requirements in § 679.20(a)(7)(viii) Are Met 2018 and 2019 Allocations under Aleutian Islands CV Harvest Set-Aside Amount
  • (mt)
  • AI non-CDQ TAC 14,016 AI ICA 2,500 AI DFA 11,516 BS non-CDQ TAC 168,005 BSAI Trawl CV A-Season Allocation 29,768 BSAI Trawl CV A-Season Allocation minus Sector Limitation 1 24,768 BS Trawl CV A-Season Sector Limitation 5,000 AI CV Harvest Set-Aside 2 5,000 AI Unrestricted Fishery 3 6,516 1 This is the amount of the BSAI trawl CV A-season allocation that may be harvested in the Bering Sea prior to March 21, 2018, unless the BS Trawl CV A-Season Sector Limitation is suspended for the remainder of the fishing year because the performance requirements pursuant to § 679.20(a)(7)(viii)(E) were not met. 2 Prior to March 15, 2018, only catcher vessels that deliver their catch of AI Pacific cod to AI shoreplants for processing may directed fish for that portion of the AI Pacific cod non-CDQ DFA that is specified as the AI CV Harvest Set-Aside, unless lifted because the performance requirements pursuant to § 679.20(a)(7)(viii)(E) were not met. 3 Prior to March 15, 2018, vessels otherwise authorized to directed fish for Pacific cod in the AI may directed fish for that portion of the AI Pacific cod non-CDQ DFA that is specified as the AI Unrestricted Fishery.
    Sablefish Gear Allocation

    Section 679.20(a)(4)(iii) and (iv) require allocation of the sablefish TAC for the Bering Sea and Aleutian Islands subareas between trawl and hook-and-line or pot gear sectors. Gear allocations of the TAC for the BS are 50 percent for trawl gear and 50 percent for hook-and-line or pot gear. Gear allocations of the TAC for the AI are 25 percent for trawl gear and 75 percent for hook-and-line or pot gear. Section 679.20(b)(1)(ii)(B) requires NMFS to apportion 20 percent of the hook-and-line or pot gear allocation of sablefish to the CDQ reserve for each subarea. Also, § 679.20(b)(1)(ii)(D)(1) requires that 7.5 percent of the trawl gear allocation of sablefish from the non-specified reserves, established under § 679.20(b)(1)(i), be assigned to the CDQ reserve. The Council recommended that only trawl sablefish TAC be established biennially. The harvest specifications for the hook-and-line gear or pot gear sablefish Individual Fishing Quota (IFQ) fisheries are limited to the 2018 fishing year to ensure those fisheries are conducted concurrently with the halibut IFQ fishery. Concurrent sablefish and halibut IFQ fisheries reduce the potential for discards of halibut and sablefish in those fisheries. The sablefish IFQ fisheries remain closed at the beginning of each fishing year until the final harvest specifications for the sablefish IFQ fisheries are in effect. Table 10 lists the 2018 and 2019 gear allocations of the sablefish TAC and CDQ reserve amounts.

    Table 10—Final 2018 and 2019 Gear Shares and CDQ Reserve of BSAI Sablefish TACS [Amounts are in metric tons] Subarea and gear Percent of TAC 2018 Share of TAC 2018 ITAC 2018 CDQ
  • reserve
  • 2019 Share of TAC 2019 ITAC 2019 CDQ
  • reserve
  • Bering Sea: Trawl 1 50 732 622 55 1,031 876 77 Hook-and-line/pot gear 2 50 732 586 146 n/a n/a n/a Total 100 1,464 1,208 201 1,031 876 77 Aleutian Islands: Trawl 1 25 497 422 37 700 595 52 Hook-and-line/pot gear 2 75 1,491 1,193 298 n/a n/a n/a Total 100 1,988 1,615 335 700 595 52 1 Except for the sablefish hook-and-line and pot gear allocation, 15 percent of TAC is apportioned to the non-specific reserve (§ 679.20(b)(1)(i)). The ITAC is the remainder of the TAC after the subtracting these reserves. 2 For the portion of the sablefish TAC allocated to vessels using hook-and-line or pot gear, 20 percent of the allocated TAC is reserved for use by CDQ participants (§ 679.20(b)(1)(ii)(B)). The Council recommended that specifications for the hook-and-line gear sablefish IFQ fisheries be limited to one year. Note: Sector apportionments may not total precisely due to rounding.
    Allocation of the Aleutian Islands Pacific Ocean Perch, and BSAI Flathead Sole, Rock Sole, and Yellowfin Sole TACs

    Section 679.20(a)(10)(i) and (ii) require that NMFS allocate Aleutian Islands Pacific ocean perch, and BSAI flathead sole, rock sole, and yellowfin sole ITAC between the Amendment 80 sector and the BSAI trawl limited access sector, after subtracting 10.7 percent for the CDQ reserve and an ICA for the BSAI trawl limited access sector and vessels using non-trawl gear. The allocation of the ITAC for Aleutian Islands Pacific ocean perch, and BSAI flathead sole, rock sole, and yellowfin sole to the Amendment 80 sector is established in accordance with Tables 33 and 34 to 50 CFR part 679 and § 679.91.

    One Amendment 80 cooperative has formed for the 2018 fishing year. The 2019 allocations for Amendment 80 species between Amendment 80 cooperatives and the Amendment 80 limited access sector will not be known until eligible participants apply for participation in the program by November 1, 2018. Tables 11 and 12 list the 2018 and 2019 allocations of the Aleutian Islands Pacific ocean perch, and BSAI flathead sole, rock sole, and yellowfin sole TACs.

    Table 11—Final 2018 Community Development Quota (CDQ) Reserves, Incidental Catch Amounts (ICAS), and Amendment 80 Allocations of the Aleutian Islands Pacific Ocean Perch, and BSAI Flathead Sole, Rock Sole, and Yellowfin Sole TACS [Amounts are in metric tons] Sector Pacific ocean perch Eastern
  • Aleutian
  • District
  • Central
  • Aleutian
  • District
  • Western
  • Aleutian
  • District
  • Flathead sole BSAI Rock sole BSAI Yellowfin sole BSAI
    TAC 9,000 7,500 9,000 14,500 47,100 154,000 CDQ 963 803 963 1,552 5,040 16,478 ICA 100 120 10 4,000 6,000 4,000 BSAI trawl limited access 794 658 161 0 0 18,351 Amendment 80 7,143 5,920 7,866 8,949 36,060 115,171 Note: Sector apportionments may not total precisely due to rounding.
    Table 12—Final 2019 Community Development Quota (CDQ) Reserves, Incidental Catch Amounts (ICAS), and Amendment 80 Allocations of the Aleutian Islands Pacific Ocean Perch, and BSAI Flathead Sole, Rock Sole, and Yellowfin Sole TACS [Amounts are in metric tons] Sector Pacific ocean perch Eastern
  • Aleutian
  • District
  • Central
  • Aleutian
  • District
  • Western
  • Aleutian
  • District
  • Flathead sole BSAI Rock sole BSAI Yellowfin sole BSAI
    TAC 9,715 7,549 9,117 16,500 49,100 156,000 CDQ 1,040 808 976 1,766 5,254 16,692 ICA 100 120 10 4,000 6,000 4,000 BSAI trawl limited access 858 662 163 0 0 19,065 Amendment 801 7,718 5,959 7,969 10,735 37,846 116,243 1 The 2019 allocations for Amendment 80 species between Amendment 80 cooperatives and the Amendment 80 limited access sector will not be known until eligible participants apply for participation in the program by November 1, 2018. NMFS will publish 2019 Amendment 80 allocations when they become available in December 2018. Note: Sector apportionments may not total precisely due to rounding.

    Section 679.2 defines the ABC surplus for flathead sole, rock sole, and yellowfin sole as the difference between the annual ABC and TAC for each species. Section 679.20(b)(1)(iii) establishes ABC reserves for flathead sole, rock sole, and yellowfin sole. The ABC surpluses and the ABC reserves are necessary to mitigate the operational variability, environmental conditions, and economic factors that may constrain the CDQ groups and the Amendment 80 cooperatives from achieving, on a continuing basis, the optimum yield in the BSAI groundfish fisheries. NMFS, after consultation with the Council, may set the ABC reserve at or below the ABC surplus for each species thus maintaining the TAC below ABC limits. An amount equal to 10.7 percent of the ABC reserves will be allocated as CDQ ABC reserves for flathead sole, rock sole, and yellowfin sole. Section 679.31(b)(4) establishes the annual allocations of CDQ ABC reserves among the CDQ groups. The Amendment 80 ABC reserves shall be the ABC reserves minus the CDQ ABC reserves. Section 679.91(i)(2) establishes each Amendment 80 cooperative ABC reserve to be the ratio of each cooperatives' quota share units and the total Amendment 80 quota share units, multiplied by the Amendment 80 ABC reserve for each respective species. Table 13 lists the 2018 and 2019 ABC surplus and ABC reserves for BSAI flathead sole, rock sole, and yellowfin sole.

    Table 13—Final 2018 and 2019 ABC Surplus, ABC Reserves, Community Development Quota (CDQ) ABC Reserves, and Amendment 80 ABC Reserves in the BSAI for Flathead Sole, Rock sole, and Yellowfin Sole [Amounts are in metric tons] Sector 2018
  • flathead sole
  • 2018
  • rock sole
  • 2018
  • yellowfin sole
  • 2019 1
  • flathead sole
  • 2019 1
  • rock sole
  • 2019 1
  • yellowfin sole
  • ABC 66,773 143,100 277,500 65,227 132,000 267,500 TAC 14,500 47,100 154,000 16,500 49,100 156,000 ABC surplus 52,273 96,000 123,500 48,727 82,900 111,500 ABC reserve 52,273 96,000 123,500 48,727 82,900 111,500 CDQ ABC reserve 5,593 10,272 13,215 5,214 8,870 11,931 Amendment 80 ABC reserve 46,680 85,728 110,286 43,513 74,030 99,570 1 The 2019 allocations for Amendment 80 species between Amendment 80 cooperatives and the Amendment 80 limited access sector will not be known until eligible participants apply for participation in the program by November 1, 2018.
    PSC Limits for Halibut, Salmon, Crab, and Herring

    Section 679.21(b), (e), (f), and (g) sets forth the BSAI PSC limits. Pursuant to § 679.21(b)(1), the annual BSAI halibut PSC limits total 3,515 mt. Section 679.21(b)(1) allocates 315 mt of the halibut PSC limit as the PSQ reserve for use by the groundfish CDQ program, 1,745 mt of the halibut PSC limit for the Amendment 80 sector, 745 mt of the halibut PSC limit for the BSAI trawl limited access sector, and 710 mt of the halibut PSC limit for the BSAI non-trawl sector.

    Section 679.21(b)(1)(iii)(A) and (B) authorize apportionment of the BSAI non-trawl halibut PSC limit into PSC allowances among six fishery categories, and § 679.21(b)(1)(ii)(A) and (B), (e)(3)(i)(B), and (e)(3)(iv) require apportionment of the BSAI trawl limited access halibut and crab PSC limits into PSC allowances among seven fishery categories. Tables 15 and 16 list the fishery PSC allowances for the trawl fisheries, and Table 17 lists the fishery PSC allowances for the non-trawl fisheries.

    Pursuant to Section 3.6 of the FMP, the Council recommends, and NMFS agrees, that certain specified non-trawl fisheries be exempt from the halibut PSC limit. As in past years, after consultation with the Council, NMFS exempts pot gear, jig gear, and the sablefish IFQ hook-and-line gear fishery categories from halibut bycatch restrictions for the following reasons: (1) The pot gear fisheries have low halibut bycatch mortality; (2) NMFS estimates halibut mortality for the jig gear fleet to be negligible because of the small size of the fishery and the selectivity of the gear; and (3) the sablefish and halibut IFQ fisheries have low halibut bycatch mortality because the IFQ program requires legal-size halibut to be retained by vessels using hook-and-line gear if a halibut IFQ permit holder or a hired master is aboard and is holding unused halibut IFQ for that vessel category and the IFQ regulatory area in which the vessel is operating (§ 679.7(f)(11)).

    The 2017 total groundfish catch for the pot gear fishery in the BSAI was 46,868 mt, with an associated halibut bycatch mortality of 17 mt. The 2017 jig gear fishery harvested about 13 mt of groundfish. Most vessels in the jig gear fleet are exempt from observer coverage requirements. As a result, observer data are not available on halibut bycatch in the jig gear fishery. However, as mentioned above, NMFS estimates a negligible amount of halibut bycatch mortality because of the selective nature of jig gear and the low mortality rate of halibut caught with jig gear and released.

    Under § 679.21(f)(2), NMFS annually allocates portions of either 33,318, 45,000, 47,591, or 60,000 Chinook salmon PSC limits among the AFA sectors, depending on past bycatch performance, on whether Chinook salmon bycatch incentive plan agreements (IPAs) are formed, and on whether NMFS determines it is a low Chinook salmon abundance year. NMFS will determine that it is a low Chinook salmon abundance year when abundance of Chinook salmon in western Alaska is less than or equal to 250,000 Chinook salmon. The State of Alaska provides to NMFS an estimate of Chinook salmon abundance using the 3-System Index for western Alaska based on the Kuskokwim, Unalakleet, and Upper Yukon aggregate stock grouping.

    If an AFA sector participates in an approved IPA and has not exceeded its performance standard under § 679.21(f)(6) and if it is not a low Chinook salmon abundance year, then NMFS will allocate a portion of the 60,000 Chinook salmon PSC limit to that sector as specified in § 679.21(f)(3)(iii)(A). If no IPA is approved, or if the sector has exceeded its performance standard under § 679.21(f)(6), and it is not a low abundance year, NMFS will allocate a portion of the 47,591 Chinook salmon PSC limit to that sector as specified in § 679.21(f)(3)(iii)(C). If an AFA sector participates in an approved IPA and has not exceeded its performance standard under § 679.21(f)(6) in a low abundance year, then NMFS will allocate a portion of the 45,000 Chinook salmon PSC limit to that sector as specified in § 679.21(f)(3)(iii)(B). If no IPA is approved, or if the sector has exceeded its performance standard under § 679.21(f)(6), in a low abundance year, NMFS will allocate a portion of the 33,318 Chinook salmon PSC limit to that sector as specified in § 679.21(f)(3)(iii)(D).

    NMFS has determined that 2017 was not a low Chinook salmon abundance year based on the State of Alaska's estimate that Chinook salmon abundance in western Alaska is greater than 250,000 Chinook salmon. Therefore, in 2018, the Chinook salmon PSC limit is 60,000 and is allocated to each AFA sector as specified in § 679.21(f)(3)(iii)(A). The AFA sector Chinook salmon PSC limit allocations are seasonally apportioned with 70 percent of the allocation for the A season pollock fishery, and 30 percent of the allocation for the B season pollock fishery (§§ 679.21(f)(3)(i) and 679.23(e)(2)). Additionally, in 2018, the Chinook salmon bycatch performance standard under § 679.21(f)(6) is 47,591 Chinook salmon, allocated to each sector as specified in § 679.21(f)(3)(iii)(C).

    The basis for these PSC limits is described in detail in the final rules implementing management measures for Amendment 91 (75 FR 53026, August 30, 2010) and Amendment 110 (81 FR 37534, June 10, 2016). NMFS publishes the approved IPAs, allocations, and reports at http://alaskafisheries.noaa.gov/sustainablefisheries/bycatch/default.htm.

    Section 679.21(g)(2)(i) specifies 700 fish as the 2018 and 2019 Chinook salmon PSC limit for the AI pollock fishery. Section 679.21(g)(2)(ii) allocates 7.5 percent, or 53 Chinook salmon, as the AI PSQ reserve for the CDQ program, and allocates the remaining 647 Chinook salmon to the non-CDQ fisheries.

    Section 679.21(f)(14)(i) specifies 42,000 fish as the 2018 and 2019 non-Chinook salmon PSC limit for vessels using trawl gear from August 15 through October 14 in the Catcher Vessel Operational Area (CVOA). Section 679.21(f)(14)(ii) allocates 10.7 percent, or 4,494 non-Chinook salmon, in the CVOA as the PSQ reserve for the CDQ program, and allocates the remaining 37,506 non-Chinook salmon in the CVOA as the PSC limit for the non-CDQ fisheries.

    PSC limits for crab and herring are specified annually based on abundance and spawning biomass. Section 679.21(e)(3)(i)(A)(1) allocates 10.7 percent from each trawl gear PSC limit specified for crab as a PSQ reserve for use by the groundfish CDQ program.

    Based on the 2017 survey data, the red king crab mature female abundance is estimated at 18.5 million mature red king crabs, and the effective spawning biomass is estimated at 39.8 million lbs (18,042 mt). Based on the criteria set out at § 679.21(e)(1)(i), the 2018 and 2019 PSC limit of red king crab in Zone 1 for trawl gear is 97,000 animals. This limit derives from the mature female abundance estimate of more than 8.4 million mature king crab and the effective spawning biomass estimate of more than 14.5 million lbs (6,477 mt) but less than 55 million lbs (24,948 mt).

    Section 679.21(e)(3)(ii)(B)(2) establishes criteria under which NMFS must specify an annual red king crab bycatch limit for the Red King Crab Savings Subarea (RKCSS). The regulations limit the RKCSS red king crab bycatch limit to 25 percent of the red king crab PSC limit, based on the need to optimize the groundfish harvest relative to red king crab bycatch. In December 2017, the Council recommended and NMFS concurs that the red king crab bycatch limit be equal to 25 percent of the red king crab PSC limit within the RKCSS (Table 15).

    Based on 2017 survey data, Tanner crab (Chionoecetes bairdi) abundance is estimated at 344 million animals. Pursuant to criteria set out at § 679.21(e)(1)(ii), the calculated 2018 and 2019 C. bairdi crab PSC limit for trawl gear is 830,000 animals in Zone 1, and 2,520,000 animals in Zone 2. The limit in Zone 1 is based on the abundance of C. bairdi estimated at 344 million animals, which is greater than 270 million animals and less than 400 million animals. The limit in Zone 2 is based on the abundance of C. bairdi estimated at 344 million animals, which is greater than 290 million animals and less than 400 million animals.

    Pursuant to § 679.21(e)(1)(iii), the PSC limit for snow crab (C. opilio) is based on total abundance as indicated by the NMFS annual bottom trawl survey. The C. opilio crab PSC limit is set at 0.1133 percent of the Bering Sea abundance index minus 150,000 crab. Based on the 2017 survey estimate of 8.182 billion animals, which is above the minimum PSC limit of 4.5 million and below the maximum PSC limit of 13 million animals, the calculated C. opilio crab PSC limit is 9,120,539 animals.

    Pursuant to § 679.21(e)(1)(v), the PSC limit of Pacific herring caught while conducting any trawl operation for BSAI groundfish is 1 percent of the annual eastern Bering Sea herring biomass. The best estimate of 2018 and 2019 herring biomass is 183,017 mt. This amount was developed by the Alaska Department of Fish and Game based on biomass for spawning aggregations. Therefore, the herring PSC limit for 2018 and 2019 is 1,830 mt for all trawl gear as listed in Tables 14 and 15.

    Section 679.21(e)(3)(i)(A) requires crab PSQ reserves to be subtracted from the total trawl gear crab PSC limits. The 2018 crab and halibut PSC limits assigned to the Amendment 80 and BSAI trawl limited access sectors are specified in Table 35 to 50 CFR part 679. The resulting allocations of PSC limit to CDQ PSQ reserves, the Amendment 80 sector, and the BSAI trawl limited access sector are listed in Table 14. Pursuant to §§ 679.21(b)(1)(i), 679.21(e)(3)(vi), and 679.91(d) through (f), crab and halibut trawl PSC limits assigned to the Amendment 80 sector are then further allocated to Amendment 80 cooperatives as cooperative quota. Crab and halibut PSC cooperative quota assigned to Amendment 80 cooperatives is not allocated to specific fishery categories. In 2018, there are no vessels in the Amendment 80 limited access sector and one Amendment 80 cooperative. The 2019 PSC allocations between Amendment 80 cooperatives and the Amendment 80 limited access sector will not be known until eligible participants apply for participation in the program by November 1, 2018. Section 679.21(e)(3)(i)(B) requires NMFS to apportion each trawl PSC limit for crab and herring not assigned to Amendment 80 cooperatives into PSC bycatch allowances for seven specified fishery categories in § 679.21(e)(3)(iv).

    Section 679.21(b)(2) and (e)(5) authorizes NMFS, after consulting with the Council, to establish seasonal apportionments of PSC amounts for the BSAI trawl limited access and non-trawl sectors in order to maximize the ability of the fleet to harvest the available groundfish TAC and to minimize bycatch. The factors to be considered are (1) seasonal distribution of prohibited species, (2) seasonal distribution of target groundfish species relative to prohibited species distribution, (3) PSC bycatch needs on a seasonal basis relevant to prohibited species biomass and expected catches of target groundfish species, (4) expected variations in bycatch rates throughout the year, (5) expected changes in directed groundfish fishing seasons, (6) expected start of fishing effort, and (7) economic effects of establishing seasonal prohibited species apportionments on segments of the target groundfish industry. The Council recommended and NMFS approves the seasonal PSC apportionments in Tables 16 and 17 to maximize harvest among gear types, fisheries, and seasons while minimizing bycatch of PSC based on the above criteria.

    Table 14—Final 2018 and 2019 Apportionment of Prohibited Species Catch Allowances to Non-Trawl Gear, the CDQ Program, Amendment 80, and the BSAI Trawl Limited Access Sectors PSC species and area 1 Total PSC Non-trawl PSC CDQ PSQ
  • reserve 2
  • Trawl PSC remaining after CDQ PSQ Amendment 80 sector 3 BSAI trawl
  • limited access
  • fishery
  • Halibut mortality (mt) BSAI 3,515 710 315 n/a 1,745 745 Herring (mt) BSAI 1,830 n/a n/a n/a n/a n/a Red king crab (animals) Zone 1 97,000 n/a 10,379 86,621 43,293 26,489 C. opilio (animals) COBLZ 9,120,539 n/a 975,898 8,144,641 4,003,091 2,617,688 C. bairdi crab (animals) Zone 1 830,000 n/a 88,810 741,190 312,115 348,285 C. bairdi crab (animals) Zone 2 2,520,000 n/a 269,640 2,250,360 532,660 1,053,394 1 Refer to § 679.2 for definitions of zones. 2 The PSQ reserve for crab species is 10.7 percent of each crab PSC limit. 3 The Amendment 80 program reduced apportionment of the trawl PSC limits for crab below the total PSC limit. These reductions are not apportioned to other gear types or sectors.
    Table 15—Final 2018 and 2019 Herring and Red King Crab Savings Subarea Prohibited Species Catch Allowances for All Trawl Sectors Fishery Categories Herring (mt) BSAI Red king crab
  • (animals)
  • Zone 1
  • Yellowfin sole 80 n/a Rock sole/flathead sole/other flatfish 1 39 n/a Greenland turbot/arrowtooth flounder/Kamchatka flounder/sablefish 5 n/a Rockfish 5 n/a Pacific cod 9 n/a Midwater trawl pollock 1,662 n/a Pollock/Atka mackerel/other species 23 30 n/a Red king crab savings subarea non-pelagic trawl gear 4 n/a 24,250 Total trawl PSC 1,830 97,000 1 “Other flatfish” for PSC monitoring includes all flatfish species, except for halibut (a prohibited species), arrowtooth flounder, flathead sole, Greenland turbot, Kamchatka flounder, rock sole, and yellowfin sole. 2 Pollock other than pelagic trawl pollock, Atka mackerel, and “other species” fishery category. 3 “Other species” for PSC monitoring includes skates, sculpins, sharks, squids, and octopuses. 4 In December 2017, the Council recommended and NMFS concurs that the red king crab bycatch limit for non-pelagic trawl fisheries within the RKCSS be limited to 25 percent of the red king crab PSC allowance (see § 679.21(e)(3)(ii)(B)(2)). Note: Species apportionments may not total precisely due to rounding.
    Table 16—Final 2018 and 2018 Prohibited Species Bycatch Allowances for the BSAI Trawl Limited Access Sector BSAI trawl limited access fisheries Prohibited species and area 1 Halibut
  • mortality
  • (mt)
  • BSAI
  • Red king crab
  • (animals)
  • Zone 1
  • C. opilio
  • (animals)
  • COBLZ
  • C. bairdi (animals) Zone 1 Zone 2
    Yellowfin sole 150 23,338 2,467,662 293,234 1,005,879 Rock sole/flathead sole/other flatfish 2 0 0 0 0 0 Greenland turbot/arrowtooth flounder/Kamchatka flounder/sablefish 0 0 0 0 0 Rockfish April 15—December 31 4 0 4,076 0 849 Pacific cod 391 2,954 105,182 50,816 42,424 Pollock/Atka mackerel/other species 3 200 197 40,768 4,235 4,243 Total BSAI trawl limited access PSC 745 26,489 2,617,688 348,285 1,053,395 1 Refer to § 679.2 for definitions of areas. 2 “Other flatfish” for PSC monitoring includes all flatfish species, except for halibut (a prohibited species), flathead sole, Greenland turbot, rock sole, yellowfin sole, Kamchatka flounder, and arrowtooth flounder. 3 “Other species” for PSC monitoring includes skates, sculpins, sharks, squids, and octopuses. Note: Seasonal or sector apportionments may not total precisely due to rounding.
    Table 17—Final 2018 and 2019 Halibut Prohibited Species Bycatch Allowances for Non-Trawl Fisheries Halibut mortality (mt) BSAI Non-trawl fisheries Seasons Catcher/
  • processor
  • Catcher vessel All non-trawl
    Pacific cod Total Pacific cod 648 13 661. January 1-June 10 388 9 n/a. June 10-August 15 162 2 n/a. August 15-December 31 98 2 n/a. Non-Pacific cod non-trawl—Total May 1-December 31 n/a n/a 49. Groundfish pot and jig n/a n/a n/a Exempt. Sablefish hook-and-line n/a n/a n/a Exempt. Total for all non-trawl PSC n/a n/a n/a 710. Note: Seasonal or sector apportionments may not total precisely due to rounding.
    Estimates of Halibut Biomass and Stock Condition

    The International Pacific Halibut Commission (IPHC) annually assesses the abundance and potential yield of the Pacific halibut stock using all available data from the commercial and sport fisheries, other removals, and scientific surveys. Additional information on the Pacific halibut stock assessment may be found in the IPHC's 2017 Pacific halibut stock assessment (December 2017), available on the IPHC website at www.iphc.int. The IPHC considered the 2017 Pacific halibut stock assessment at its January 2018 annual meeting when it set the 2018 commercial halibut fishery catch limits.

    Halibut Discard Mortality Rates

    To monitor halibut bycatch mortality allowances and apportionments, the Regional Administrator uses observed halibut incidental catch rates, halibut discard mortality rates (DMRs), and estimates of groundfish catch to project when a fishery's halibut bycatch mortality allowance or seasonal apportionment is reached. Halibut incidental catch rates are based on observers' estimates of halibut incidental catch in the groundfish fishery. DMRs are estimates of the proportion of incidentally caught halibut that do not survive after being returned to the sea. The cumulative halibut mortality that accrues to a particular halibut PSC limit is the product of a DMR multiplied by the estimated halibut PSC. DMRs are estimated using the best scientific information available in conjunction with the annual BSAI stock assessment process. The DMR methodology and findings are included as an appendix to the annual BSAI groundfish SAFE report.

    In 2016, the DMR estimation methodology underwent revisions per the Council's directive. An interagency halibut working group (IPHC, Council, and NMFS staff) developed improved estimation methods that have undergone review by the Plan Team, SSC, and the Council. A summary of the revised methodology is included in the BSAI proposed 2017 and 2018 harvest specifications (81 FR 87863, December 6, 2016), and the comprehensive discussion of the working group's statistical methodology is available from the Council (see ADDRESSES). The DMR working group's revised methodology is intended to improve estimation accuracy as well as transparency and transferability in the methodology used for calculating DMRs. The working group will continue to consider improvements to the methodology used to calculate halibut mortality, including potential changes to the reference period (the period of data used for calculating the DMRs). Future DMRs, including the 2019 DMRs, may change based on an additional year of observer sampling that could provide more recent and accurate data and could improve the accuracy of estimation and progress on methodology. The new methodology will continue to ensure that NMFS is using DMRs that more accurately reflect halibut mortality, which will inform the different sectors of their estimated halibut mortality and allow specific sectors to respond with methods that could reduce mortality and, eventually, the DMR for that sector.

    At the December 2017 meeting, the SSC, AP, and Council reviewed and concurred in the revised DMRs. For 2018 and 2019, the Council recommended and NMFS adopts the halibut DMRs derived from this revised process. The final 2018 and 2019 DMRs are unchanged from the DMRs proposed in the 2018 and 2019 harvest specifications (82 FR 57906, December 8, 2017). Table 18 lists the final 2018 and 2019 DMRs.

    Table 18—2018 and 2019 Pacific Halibut Discard Mortality Rates for the BSAI Gear Sector Halibut discard mortality rate (percent) Pelagic trawl All 100 Non-pelagic trawl Mothership and catcher/processor 84 Non-pelagic trawl Catcher vessel 60 Hook-and-line Catcher/processor 8 Hook-and-line Catcher vessel 17 Pot All 9 Directed Fishing Closures

    In accordance with § 679.20(d)(1)(i), the Regional Administrator may establish a DFA for a species or species group if the Regional Administrator determines that any allocation or apportionment of a target species has been or will be reached. If the Regional Administrator establishes a DFA, and that allowance is or will be reached before the end of the fishing year, NMFS will prohibit directed fishing for that species or species group in the specified subarea, regulatory area, or district (see § 679.20(d)(1)(iii)). Similarly, pursuant to § 679.21(b)(4) and (e)(7), if the Regional Administrator determines that a fishery category's bycatch allowance of halibut, red king crab, C. bairdi crab, or C. opilio crab for a specified area has been reached, the Regional Administrator will prohibit directed fishing for each species or species group in that fishery category in the area specified by regulation for the remainder of the fishing year.

    Based on historic catch patterns and anticipated fishing activity, the Regional Administrator has determined that the groundfish allocation amounts in Table 19 will be necessary as incidental catch to support other anticipated groundfish fisheries for the 2018 and 2019 fishing years. Consequently, in accordance with § 679.20(d)(1)(i), the Regional Administrator establishes the DFA for the species and species groups in Table 19 as zero mt. Therefore, in accordance with § 679.20(d)(1)(iii), NMFS is prohibiting directed fishing for these sectors and species or species groups in the specified areas effective at 1200 hrs, A.l.t., February 27, 2018, through 2400 hrs, A.l.t., December 31, 2019. Also, for the BSAI trawl limited access sector, bycatch allowances of halibut, red king crab, C. bairdi crab, and C. opilio crab listed in Table 19 are insufficient to support directed fisheries. Therefore, in accordance with § 679.21(b)(4)(i) and (e)(7), NMFS is prohibiting directed fishing for these sectors, species, and fishery categories in the specified areas effective at 1200 hrs, A.l.t., February 27, 2018, through 2400 hrs, A.l.t., December 31, 2019.

    Table 19—2018 and 2018 Directed Fishing Closures 1 [Groundfish and halibut amounts are in metric tons. Crab amounts are in number of animals.] Area Sector Species 2018
  • incidental
  • catch
  • allowance
  • 2019
  • incidental
  • catch
  • allowance
  • Bogoslof District All Pollock 450 500 Aleutian Islands subarea All ICA pollock 2,400 2,400 “Other rockfish” 2 570 570 Eastern Aleutian District/Bering Sea Non-amendment 80, CDQ, and BSAI trawl limited access ICA Atka mackerel 800 800 Eastern Aleutian District/Bering Sea All Blackspotted/Rougheye rockfish 75 75 Eastern Aleutian District Non-amendment 80, CDQ, and BSAI trawl limited access ICA Pacific ocean perch 100 100 Central Aleutian District Non-amendment 80, CDQ, and BSAI trawl limited access ICA Atka mackerel 75 75 ICA Pacific ocean perch 60 60 Western Aleutian District Non-amendment 80, CDQ, and BSAI trawl limited access ICA Atka mackerel 20 20 ICA Pacific ocean perch 10 10 Western and Central Aleutian Districts All Blackspotted/Rougheye rockfish 150 150 Bering Sea subarea All Pacific ocean perch 10,082 9,774 “Other rockfish” 2 275 275 ICA pollock 47,888 48,543 Bering Sea and Aleutian Islands All Northern rockfish 5,185 5,525 Shortraker rockfish 150 150 Skates 22,950 22,950 Sculpins 4,250 4,250 Sharks 180 180 Squids 1,020 1,020 Octopuses 250 200 Hook-and-line and pot gear ICA Pacific cod 400 400 Non-amendment 80 and CDQ ICA flathead sole 4,000 4,000 ICA rock sole 6,000 6,000 Non-amendment 80, CDQ, and BSAI trawl limited access ICA yellowfin sole 4,000 4,000 BSAI trawl limited access Rock sole/flathead sole/other flatfish—halibut mortality, red king crab Zone 1, C. opilio COBLZ, C. bairdi Zone 1 and 2 0 0 Turbot/arrowtooth/sablefish—halibut mortality, red king crab Zone 1, C. opilio COBLZ, C. bairdi Zone 1 and 2 0 0 Rockfish—red king crab Zone 1 0 0 1 Maximum retainable amounts may be found in Table 11 to 50 CFR part 679. 2 “Other rockfish” includes all Sebastes and Sebastolobus species except for Pacific ocean perch, northern rockfish, shortraker rockfish, and blackspotted/rougheye rockfish.

    Closures implemented under the final 2017 and 2018 BSAI harvest specifications for groundfish (82 FR 11826, February 27, 2017) remain effective under authority of these final 2018 and 2019 harvest specifications and until the date specified in those notices. Closures are posted at the following websites: http://alaskafisheries.noaa.gov/cm/info_bulletins/ and http://alaskafisheries.noaa.gov/fisheries_reports/reports/. While these closures are in effect, the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a fishing trip. These closures to directed fishing are in addition to closures and prohibitions found at 50 CFR part 679.

    Listed AFA Catcher/Processor Sideboard Limits

    Pursuant to § 679.64(a), the Regional Administrator is responsible for restricting the ability of listed AFA C/Ps to engage in directed fishing for groundfish species other than pollock to protect participants in other groundfish fisheries from adverse effects resulting from the AFA and from fishery cooperatives in the pollock directed fishery. These restrictions are set out as sideboard limits on catch. The basis for these sideboard limits is described in detail in the final rules implementing the major provisions of the AFA (67 FR 79692, December 30, 2002) and Amendment 80 (72 FR 52668, September 14, 2007). Table 20 lists the 2018 and 2019 AFA C/P groundfish sideboard limits. Section 679.64(a)(1)(v) exempts AFA catcher/processors from a yellowfin sole sideboard limit because the 2018 and 2019 aggregate ITAC of yellowfin sole assigned to the Amendment 80 sector and BSAI trawl limited access sector is greater than 125,000 mt.

    All harvest of groundfish sideboard species by listed AFA C/Ps, whether as targeted catch or incidental catch, will be deducted from the sideboard limits in Table 20. However, groundfish sideboard species that are delivered to listed AFA C/Ps by CVs will not be deducted from the 2018 and 2019 sideboard limits for the listed AFA C/Ps.

    Table 20—Final 2018 and 2019 Listed BSAI American Fisheries Act Catcher/Processor Groundfish Sideboard Limits [Amounts are in metric tons] Target species Area/season 1995-1997 Retained catch Total catch Ratio of retained catch to total catch 2018
  • ITAC
  • available to
  • trawl C/Ps 1
  • 2018
  • AFA C/P
  • sideboard limit
  • 2019
  • ITAC
  • available to
  • trawl C/Ps* 1
  • 2019
  • AFA C/P
  • sideboard limit
  • Sablefish trawl BS 8 497 0.016 622 10 876 14 AI 0 145 0 422 0 595 0 Atka mackerel Central AI A season 2 n/a n/a 0.115 9,377 1,078 11,116 1,278 Central AI B season 2 n/a n/a 0.115 9,377 1,078 11,116 1,278 Western AI A season 2 n/a n/a 0.2 6,028 1,206 6,173 1,235 Western AI B season 2 n/a n/a 0.2 6,028 1,206 6,173 1,235 Rock sole BSAI 6,317 169,362 0.037 42,060 1,556 43,846 1,622 Greenland turbot BS 121 17,305 0.007 4,356 30 4,356 30 AI 23 4,987 0.005 144 1 144 1 Arrowtooth flounder BSAI 76 33,987 0.002 11,578 23 11,900 24 Kamchatka flounder BSAI 76 33,987 0.002 4,250 9 4,250 9 Flathead sole BSAI 1,925 52,755 0.036 12,949 466 14,735 530 Alaska plaice BSAI 14 9,438 0.001 13,685 14 13,814 14 Other flatfish BSAI 3,058 52,298 0.058 3,400 197 3,400 197 Pacific ocean perch BS 12 4,879 0.002 10,082 20 9,774 20 Eastern AI 125 6,179 0.02 8,037 161 8,675 174 Central AI 3 5,698 0.001 6,698 7 6,741 7 Western AI 54 13,598 0.004 8,037 32 8,141 33 Northern rockfish BSAI 91 13,040 0.007 5,185 36 5,525 39 Shortraker rockfish BSAI 50 2,811 0.018 150 3 150 3 Blackspotted/Rougheye rockfish BS/EAI 50 2,811 0.018 75 1 75 1 CAI/WAI 50 2,811 0.018 150 3 150 3 Other rockfish BS 18 621 0.029 275 8 275 8 AI 22 806 0.027 570 15 570 15 Skates BSAI 553 68,672 0.008 22,950 184 22,950 184 Sculpins BSAI 553 68,672 0.008 4,250 34 4,250 34 Sharks BSAI 553 68,672 0.008 180 1 180 1 Squids BSAI 73 3,328 0.022 1,020 22 1,020 22 Octopuses BSAI 553 68,672 0.008 250 2 200 2 1 Aleutian Islands Pacific ocean perch, and BSAI Atka mackerel, flathead sole, and rock sole are multiplied by the remainder of the TAC for each species after the subtraction of the CDQ reserve under § 679.20(b)(1)(ii)(C). 2 The seasonal apportionment of Atka mackerel in the open access fishery is 50 percent in the A season and 50 percent in the B season. Listed AFA catcher/processors are limited to harvesting no more than zero in the Eastern Aleutian District and Bering Sea subarea, 20 percent of the annual ITAC specified for the Western Aleutian District, and 11.5 percent of the annual ITAC specified for the Central Aleutian District.

    Section 679.64(a)(2) and Tables 40 and 41 of 50 CFR part 679 establish a formula for calculating PSC sideboard limits for halibut and crab caught by listed AFA C/Ps. The basis for these sideboard limits is described in detail in the final rules implementing the major provisions of the AFA (67 FR 79692, December 30, 2002) and Amendment 80 (72 FR 52668, September 14, 2007).

    PSC species listed in Table 21 that are caught by listed AFA C/Ps participating in any groundfish fishery other than pollock will accrue against the 2018 and 2019 PSC sideboard limits for the listed AFA C/Ps. Section 679.21(b)(4)(iii), (e)(3)(v), and (e)(7) authorizes NMFS to close directed fishing for groundfish other than pollock for listed AFA C/Ps once a 2018 or 2019 PSC sideboard limit listed in Table 21 is reached.

    Pursuant to § 679.21(b)(1)(ii)(C) and (e)(3)(ii)(C), halibut or crab PSC caught by listed AFA C/Ps while fishing for pollock will accrue against the bycatch allowances annually specified for the pollock/Atka mackerel/“other species” fishery categories under § 679.21(b)(1)(ii)(B) and (e)(3)(iv).

    Table 21—Final 2018 and 2019 BSAI AFA Listed Catcher/Processor Prohibited Species Catch Sideboard Limits PSC species and area 1 Ratio of PSC
  • catch to total
  • PSC
  • 2018 and
  • 2019 PSC
  • available
  • to trawl
  • vessels after
  • subtraction
  • of PSQ 2
  • 2018 and
  • 2019 AFA
  • catcher/
  • processor
  • sideboard
  • limit 2
  • Halibut mortality BSAI n/a n/a 286 Red king crab zone 1 0.007 86,621 606 C. opilio (COBLZ) 0.153 8,144,641 1,246,130 C. bairdi Zone 1 0.140 741,190 103,767 C. bairdi Zone 2 0.050 2,250,360 112,518 1 Refer to § 679.2 for definitions of areas. 2 Halibut amounts are in metric tons of halibut mortality. Crab amounts are in numbers of animals.
    AFA Catcher Vessel Sideboard Limits

    Pursuant to § 679.64(b), the Regional Administrator is responsible for restricting the ability of AFA CVs to engage in directed fishing for groundfish species other than pollock to protect participants in other groundfish fisheries from adverse effects resulting from the AFA and from fishery cooperatives in the pollock directed fishery. Section 679.64(b)(3) and (4) establishes a formula for setting AFA CV groundfish and halibut and crab PSC sideboard limits for the BSAI. The basis for these sideboard limits is described in detail in the final rules implementing the major provisions of the AFA (67 FR 79692, December 30, 2002) and Amendment 80 (72 FR 52668, September 14, 2007). Section 679.64(b)(6) exempts AFA CVs from a yellowfin sole sideboard limit because the 2018 and 2019 aggregate ITAC of yellowfin sole assigned to the Amendment 80 sector and BSAI trawl limited access sector is greater than 125,000 mt. Tables 22 and 23 list the 2018 and 2019 AFA CV sideboard limits.

    All catch of groundfish sideboard species made by non-exempt AFA CVs, whether as targeted catch or incidental catch, will be deducted from the 2018 and 2019 sideboard limits listed in Table 22.

    Halibut and crab PSC limits listed in Table 23 that are caught by AFA CVs participating in any groundfish fishery for groundfish other than pollock will accrue against the 2018 and 2019 PSC sideboard limits for the AFA CVs. Section 679.21(b)(4)(iii), (e)(3)(v), and (e)(7) authorizes NMFS to close directed fishing for groundfish other than pollock for AFA CVs once a 2018 or 2019 PSC sideboard limit listed in Table 23 is reached. Pursuant to § 679.21(b)(1)(ii)(C) and (e)(3)(ii)(C), the PSC that is caught by AFA CVs while fishing for pollock in the BSAI will accrue against the bycatch allowances annually specified for the pollock/Atka mackerel/“other species” fishery categories under § 679.21(b)(1)(ii)(B) and (e)(3)(iv).

    Table 22—Final 2018 and 2019 American Fisheries Act Catcher Vessel BSAI Groundfish Sideboard Limits [Amounts are in metric tons] Species/gear Fishery by area/season Ratio of 1995-1997 AFA CV catch to 1995-1997 TAC 2018 initial TAC 1 2018 AFA catcher vessel sideboard
  • limits
  • 2019 initial TAC 1 2019 AFA catcher vessel sideboard
  • limits
  • Pacific cod/Hook-and-line CV ≥60 feet LOA BSAI Jan 1-Jun 10 0.0006 185 0 159 0 BSAI Jun 10-Dec 31 0.0006 178 0 152 0 Pacific cod pot gear CV BSAI Jan 1-Jun 10 0.0006 7,770 5 6,660 4 BSAI Sept 1-Dec 31 0.0006 7,465 4 6,398 4 Pacific cod CV ≤60 feet LOA using hook-and-line or pot gear BSAI 0.0006 3,627 2 3,109 2 Pacific cod trawl gear CV BSAI Jan 20-Apr 1 0.8609 29,768 25,627 25,530 21,979 BSAI Apr 1-Jun 10 0.8609 4,425 3,809 3,795 3,267 BSAI Jun 10-Nov 1 0.8609 6,034 5,195 5,175 4,455 Sablefish trawl gear BS 0.0906 622 56 876 79 AI 0.0645 422 27 595 38 Atka mackerel Eastern AI/BS Jan 1-Jun 10 0.0032 16,298 52 15,083 48 Eastern AI/BS Jun 10-Nov 1 0.0032 16,298 52 15,083 48 Central AI Jan 1-Jun 10 0.0001 9,377 1 11,116 1 Central AI Jun 10-Nov 1 0.0001 9,377 1 11,116 1 Western AI Jan 1-Jun 10 0 6,028 0 6,173 0 Western AI Jun 10-Nov 1 0 6,028 0 6,173 0 Rock sole BSAI 0.0341 42,060 1,434 43,846 1,495 Greenland turbot BS 0.0645 4,356 281 4,356 281 AI 0.0205 144 3 144 3 Arrowtooth flounder BSAI 0.069 11,578 799 11,900 821 Kamchatka flounder BSAI 0.069 4,250 293 4,250 293 Alaska plaice BSAI 0.0441 13,685 604 13,814 609 Other flatfish BSAI 0.0441 3,400 150 3,400 150 Flathead sole BS 0.0505 12,949 654 14,735 744 Pacific ocean perch BS 0.1 10,082 1,008 9,774 977 Eastern AI 0.0077 8,037 62 8,675 67 Central AI 0.0025 6,698 17 6,741 17 Western AI 0 8,037 0 8,141 0 Northern rockfish BSAI 0.0084 5,185 44 5,525 46 Shortraker rockfish BSAI 0.0037 150 1 150 1 Blackspotted/Rougheye rockfish BS/EAI 0.0037 75 0 75 0 CAI/WAI 0.0037 150 1 150 1 Other rockfish BS 0.0048 275 1 275 1 AI 0.0095 570 5 570 5 Skates BSAI 0.0541 22,950 1,242 22,950 1,242 Sculpins BSAI 0.0541 4,250 230 4,250 230 Sharks BSAI 0.0541 180 10 180 10 Squids BSAI 0.3827 1,020 390 1,020 390 Octopuses BSAI 0.0541 250 14 200 11 1 Aleutians Islands Pacific ocean perch, and BSAI Atka mackerel, flathead sole, Pacific cod, and rock sole are multiplied by the remainder of the TAC for each species after the subtraction of the CDQ reserve under § 679.20(b)(1)(ii)(C).
    Table 23—Final 2018 and 2019 American Fisheries Act Catcher Vessel Prohibited Species Catch Sideboard Limits for the BSAI 1 PSC species and area 1 Target fishery category 2 AFA catcher
  • vessel PSC
  • sideboard
  • limit ratio
  • 2018 and
  • 2019 PSC
  • limit after
  • subtraction
  • of PSQ
  • reserves 3
  • 2018 and
  • 2019 AFA
  • catcher
  • vessel PSC
  • sideboard
  • limit 3
  • Halibut Pacific cod trawl n/a n/a 887 Pacific cod hook-and-line or pot n/a n/a 2 Yellowfin sole total n/a n/a 101 Rock sole/flathead sole/other flatfish 4 n/a n/a 228 Greenland turbot/arrowtooth/sablefish 5 n/a n/a 0 Rockfish n/a n/a 2 Pollock/Atka mackerel/other species 6 n/a n/a 5 Red king crab Zone 1 n/a 0.299 86,621 25,900 C. opilio COBLZ n/a 0.168 8,144,641 1,368,300 C. bairdi Zone 1 n/a 0.330 741,190 244,593 C. bairdi Zone 2 n/a 0.186 2,250,360 418,567 1 Refer to § 679.2 for definitions of areas. 2 Target trawl fishery categories are defined at § 679.21(b)(1)(ii)(B) and (e)(3)(iv). 3 Halibut amounts are in metric tons of halibut mortality. Crab amounts are in numbers of animals. 4 “Other flatfish” for PSC monitoring includes all flatfish species, except for halibut (a prohibited species), flathead sole, Greenland turbot, rock sole, yellowfin sole, Kamchatka flounder, and arrowtooth flounder. 5 Arrowtooth for PSC monitoring includes Kamchatka flounder. 6 “Other species” for PSC monitoring includes skates, sculpins, sharks, squids, and octopuses.
    AFA Catcher/Processor and Catcher Vessel Sideboard Directed Fishing Closures

    Based on historical catch patterns, the Regional Administrator has determined that many of the AFA C/P and CV sideboard limits listed in Tables 24 and 25 are necessary as incidental catch to support other anticipated groundfish fisheries for the 2018 and 2019 fishing years. In accordance with § 679.20(d)(1)(iv), the Regional Administrator establishes the sideboard limits listed in Tables 24 and 25 as DFAs. Because many of these DFAs will be reached before the end of 2018, the Regional Administrator has determined, in accordance with § 679.20(d)(1)(iii), that NMFS is prohibiting directed fishing by listed AFA C/Ps for the species in the specified areas set out in Table 24, and prohibiting directed fishing by non-exempt AFA CVs for the species in the specified areas set out in Table 25.

    Table 24—Final 2018 and 2019 American Fisheries Act Listed Catcher/Processor Sideboard Directed Fishing Closures 1 [Amounts are in metric tons] Species Area Gear types 2018 sideboard limit 2019 sideboard limit Sablefish trawl BS trawl 10 14 AI trawl 0 0 Rock sole BSAI all 1,556 1,622 Greenland turbot BS all 30 30 AI all 1 1 Arrowtooth flounder BSAI all 23 24 Kamchatka flounder BSAI all 9 9 Alaska plaice BSAI all 14 14 Other flatfish 2 BSAI all 197 197 Flathead sole BSAI all 466 530 Pacific ocean perch BS all 20 20 Eastern AI all 161 174 Central AI all 7 7 Western AI all 32 33 Northern rockfish BSAI all 36 39 Shortraker rockfish BSAI all 3 3 Blackspotted/Rougheye rockfish BS/EAI all 1 1 CAI/WAI all 3 3 Other rockfish 3 BS all 8 8 AI all 15 15 Skates BSAI all 184 184 Sculpins BSAI all 34 34 Sharks BSAI all 1 1 Squids BSAI all 25 22 Octopuses BSAI all 2 2 1 Maximum retainable amounts may be found in Table 11 to 50 CFR part 679. 2 “Other flatfish” includes all flatfish species, except for halibut, Alaska plaice, flathead sole, Greenland turbot, rock sole, yellowfin sole, Kamchatka flounder, and arrowtooth flounder. 3 “Other rockfish” includes all Sebastes and Sebastolobus species except for Pacific ocean perch, northern rockfish, shortraker rockfish, and blackspotted/rougheye rockfish. Table 25—Final 2018 and 2019 American Fisheries Act Catcher Vessel Sideboard Directed Fishing Closures 1 [Amounts are in metric tons] Species Area Gear types 2018 sideboard limit 2019 sideboard limit Pacific cod BSAI hook-and-line CV ≥60 feet LOA 0 0 BSAI pot CV ≥60 feet LOA 9 8 BSAI hook-and-line or pot CV ≤60 feet LOA 2 2 BSAI jig 0 0 Sablefish BS trawl 56 79 AI trawl 27 38 Atka mackerel Eastern AI/BS all 104 96 Central AI all 2 2 Western AI all 0 0 Greenland turbot BS all 281 281 AI all 3 3 Arrowtooth flounder BSAI all 799 821 Kamchatka flounder BSAI all 293 293 Alaska plaice BSAI all 501 609 Other flatfish 2 BSAI all 150 150 Flathead sole BSAI all 654 744 Rock sole BSAI all 1,434 1,495 Pacific ocean perch BS all 1008 977 Eastern AI all 62 67 Central AI all 17 17 Western AI all 0 0 Northern rockfish BSAI all 44 46 Shortraker rockfish BSAI all 1 1 Blackspotted/Rougheye rockfish BS/EAI all 0 0 CAI/WAI all 1 1 Other rockfish 3 BS all 1 1 AI all 5 5 Skates BSAI all 1,242 1,242 Sculpins BSAI all 230 230 Sharks BSAI all 10 10 Squids BSAI all 390 390 Octopuses BSAI all 14 11 1 Maximum retainable amounts may be found in Table 11 to 50 CFR part 679. 2 “Other flatfish” includes all flatfish species, except for halibut, Alaska plaice, flathead sole, Greenland turbot, rock sole, yellowfin sole, Kamchatka flounder, and arrowtooth flounder. 3 “Other rockfish” includes all Sebastes and Sebastolobus species except for Pacific ocean perch, northern rockfish, shortraker rockfish, and blackspotted/rougheye rockfish. Response to Comments

    NMFS received no substantive comments during the public comment period for the proposed BSAI groundfish harvest specifications. No changes were made to the final rule in response to the comment letters received.

    Classification

    NMFS has determined that these final harvest specifications are consistent with the FMP and with the Magnuson-Stevens Act and other applicable laws.

    This action is authorized under 50 CFR 679.20 and is exempt from review under Executive Order 12866.

    NMFS prepared an EIS that covers this action (see ADDRESSES) and made it available to the public on January 12, 2007 (72 FR 1512). On February 13, 2007, NMFS issued the Record of Decision (ROD) for the EIS. In January 2018, NMFS prepared a Supplemental Information Report (SIR) for this action. Copies of the EIS, ROD, and SIR for this action are available from NMFS (see ADDRESSES). The EIS analyzes the environmental consequences of the groundfish harvest specifications and alternative harvest strategies on resources in the action area. The EIS found no significant environmental consequences of this action and its alternatives. The SIR evaluates the need to prepare a Supplemental EIS (SEIS) for the 2018 and 2019 groundfish harvest specifications.

    An SEIS should be prepared if (1) the agency makes substantial changes in the proposed action that are relevant to environmental concerns; or (2) significant new circumstances or information exist relevant to environmental concerns and bearing on the proposed action or its impacts (40 CFR 1502.9(c)(1)). After reviewing the information contained in the SIR and SAFE reports, the Regional Administrator has determined that (1) approval of the 2018 and 2019 harvest specifications, which were set according to the preferred harvest strategy in the EIS, does not constitute a substantial change in the action; and (2) there are no significant new circumstances or information relevant to environmental concerns and bearing on the action or its impacts. Additionally, the 2018 and 2019 harvest specifications will result in environmental impacts within the scope of those analyzed and disclosed in the EIS. Therefore, supplemental National Environmental Policy Act documentation is not necessary to implement the 2018 and 2019 harvest specifications.

    Section 604 of the Regulatory Flexibility Act (RFA) (5 U.S.C. 604) requires that, when an agency promulgates a final rule under section 553 of Title 5 of the United States Code, after being required by that section, or any other law, to publish a general notice of proposed rulemaking, the agency shall prepare a final regulatory flexibility analysis (FRFA). The following constitutes the FRFA prepared in the final action.

    The required contents of a FRFA, as described in section 604, are: (1) A statement of the need for, and objectives of, the rule; (2) a statement of the significant issues raised by the public comments in response to the initial regulatory flexibility analysis, a statement of the assessment of the agency of such issues, and a statement of any changes made in the proposed rule as a result of such comments; (3) the response of the agency to any comments filed by the Chief Counsel for Advocacy of the Small Business Administration in response to the proposed rule, and a detailed statement of any change made to the proposed rule in the final rule as a result of the comments; (4) a description of and an estimate of the number of small entities to which the rule will apply or an explanation of why no such estimate is available; (5) a description of the projected reporting, recordkeeping, and other compliance requirements of the rule, including an estimate of the classes of small entities which will be subject to the requirement and the type of professional skills necessary for preparation of the report or record; and (6) a description of the steps the agency has taken to minimize the significant economic impact on small entities consistent with the stated objectives of applicable statutes, including a statement of the factual, policy, and legal reasons for selecting the alternative adopted in the final rule and why each one of the other significant alternatives to the rule considered by the agency which affect the impact on small entities was rejected.

    A description of this action, its purpose, and its legal basis are included at the beginning of the preamble to this final rule and are not repeated here.

    NMFS published the proposed rule on December 8, 2017 (82 FR 57906). NMFS prepared an Initial Regulatory Flexibility Analysis (IRFA) to accompany the proposed action, and included a summary in the proposed rule. The comment period closed on January 8, 2018. No comments were received on the IRFA or on the economic impacts of the rule more generally. The Chief Counsel for Advocacy of the Small Business Administration did not file any comments on the proposed rule.

    The entities directly regulated by this action are those that harvest groundfish in the exclusive economic zone of the BSAI and in parallel fisheries within State waters. These include entities operating catcher vessels and catcher/processors within the action area and entities receiving direct allocations of groundfish.

    For RFA purposes only, NMFS has established a small business size standard for businesses, including their affiliates, whose primary industry is commercial fishing (see 50 CFR 200.2). A business primarily engaged in commercial fishing (NAICS code 11411) is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual gross receipts not in excess of $11 million for all its affiliated operations worldwide.

    The estimated number of directly regulated small entities in 2016 include approximately 119 catcher vessels, five catcher/processors, and six CDQ groups. Some of these vessels are members of AFA inshore pollock cooperatives, Gulf of Alaska rockfish cooperatives, or BSAI Crab Rationalization Program cooperatives, and, since under the RFA the aggregate gross receipts of all participating members of the cooperative must meet the “under $11 million” threshold, the cooperatives are considered to be large entities within the meaning of the RFA. Thus, the estimate of 119 catcher vessels may be an overstatement of the number of small entities. Average gross revenues were $690,000 for small hook-and-line vessels, $1.25 million for small pot vessels, and $3.44 million for small trawl vessels. The average gross revenue for catcher/processor hook-and-line vessels was $2.90 million. The revenue data for other catcher/processors are not reported, due to confidentiality considerations.

    This action does not modify recordkeeping or reporting requirements.

    The significant alternatives were those considered as alternative harvest strategies when the Council selected its preferred harvest strategy (Alternative 2) in December 2006. These included the following:

    Alternative 1: Set TAC to produce fishing mortality rates, F, that are equal to maxFABC, unless the sum of the TAC is constrained by the OY established in the fishery management plans. This is equivalent to setting TAC to produce harvest levels equal to the maximum permissible ABC, as constrained by OY. The term “maxFABC” refers to the maximum permissible value of FABC under Amendment 56 to the BSAI and Gulf of Alaska groundfish fishery management plans. Historically, the TAC has been set at or below the ABC; therefore, this alternative represents a likely upper limit for setting the TAC within the OY and ABC limits.

    Alternative 3: For species in Tiers 1, 2, and 3, set TAC to produce F equal to the most recent 5-year average actual F. For species in Tiers 4, 5, and 6, set TAC equal to the most recent 5-year average actual catch. For stocks with a high level of scientific information, TAC would be set to produce harvest levels equal to the most recent 5-year average actual fishing mortality rates. For stocks with insufficient scientific information, TAC would be set equal to the most recent 5-year average actual catch. This alternative recognizes that for some stocks, catches may fall well below ABC, and recent average F may provide a better indicator of actual F than FABC does.

    Alternative 4: First, set TAC for rockfish species in Tier 3 at F 75%; set TAC for rockfish species in Tier 5 at F = 0.5M; and set spatially explicit TAC for shortraker and rougheye rockfish in the BSAI. Second, taking the rockfish TAC as calculated above, reduce all other TAC by a proportion that does not vary across species, so that the sum of all TAC, including rockfish TAC, is equal to the lower bound of the area OY (1,400,000 mt in the BSAI). This alternative sets conservative and spatially explicit TAC for rockfish species that are long-lived and late to mature, and sets conservative TAC for the other groundfish species.

    Alternative 5: (No Action) Set TAC at zero.

    Alternative 2 is the preferred alternative chosen by the Council: Set TAC that fall within the range of ABC recommended through the Council harvest specifications process and TACs recommended by the Council. Under this scenario, F is set equal to a constant fraction of maxFABC. The recommended fractions of maxFABC may vary among species or stocks, based on other considerations unique to each. This is the method for determining TAC that has been used in the past.

    Alternatives 1, 3, 4, and 5 do not meet the objectives of this action, and although Alternatives 1 and 3 may have a smaller adverse economic impact on small entities than the preferred alternative, Alternatives 4 and 5 likely would have a significant adverse economic impact on small entities. The Council rejected these alternatives as harvest strategies in 2006, and the Secretary of Commerce did so in 2007.

    Alternative 1 would lead to TAC limits whose sum exceeds the fishery OY, which is set out in statute and the FMP. As shown in Table 1 and Table 2, the sum of ABCs in 2018 and 2019 would be 3,779,809 mt and 3,578,956 mt, respectively. Both of these are substantially in excess of the fishery OY for the BSAI. This result would be inconsistent with the objectives of this action, in that it would violate the Consolidated Appropriations Act of 2004, Public Law 108-199, Division B, section 803(c), and the FMP, which both set a 2 million mt maximum harvest for BSAI groundfish.

    Alternative 3 selects harvest rates based on the most recent 5 years' worth of harvest rates (for species in Tiers 1 through 3) or based on the most recent 5 years' worth of harvests (for species in Tiers 4 through 6). This alternative is also inconsistent with the objectives of this action because it does not take into account the most recent biological information for this fishery. NMFS annually conducts at-sea stock surveys for different species, as well as statistical modeling, to estimate stock sizes and permissible harvest levels. Actual harvest rates or harvest amounts are a component of these estimates, but in and of themselves may not accurately portray stock sizes and conditions. Harvest rates are listed for each species category for each year in the SAFE report (see ADDRESSES).

    Alternative 4 would lead to significantly lower harvests of all species to reduce TAC from the upper end of the OY range in the BSAI to its lower end of 1.4 million mt. This result would lead to significant reductions in harvests of species by small entities. While reductions of this size could be associated with offsetting price increases, the size of these increases is uncertain, and, assuming volume decreases would lead to price increases, it is unclear whether price increases would be sufficient to offset the volume decreases and to leave revenues unchanged for small entities. Thus, this action would have an adverse economic impact on small entities, compared to the preferred alternative.

    Alternative 5, which sets all harvests equal to zero, may also address conservation issues, but would have a significant adverse economic impact on small entities.

    Impacts on marine mammals resulting from fishing activities conducted under this rule are discussed in the EIS (see ADDRESSES).

    Pursuant to 5 U.S.C. 553(d)(3), the Assistant Administrator for Fisheries, NOAA, finds good cause to waive the 30-day delay in effectiveness for this rule because delaying this rule is contrary to the public interest. The Plan Team review occurred in November 2017, and the Council considered and recommended the final harvest specifications in December 2017. Accordingly, NMFS' review could not begin until after the December 2017 Council meeting, and after the public had time to comment on the proposed action. If this rule's effectiveness is delayed, fisheries that might otherwise remain open under these rules may prematurely close based on the lower TACs established in the final 2017 and 2018 harvest specifications (82 FR 11826, February 27, 2017). If implemented immediately, this rule would allow these fisheries to continue fishing because some of the new TACs implemented by this rule are higher than the TACs under which they are currently fishing.

    In addition, immediate effectiveness of this action is required to provide consistent management and conservation of fishery resources based on the best available scientific information. This is particularly pertinent for those species that have lower 2018 ABCs and TACs than those established in the 2017 and 2018 harvest specifications (82 FR 11826, February 27, 2017). If implemented immediately, this rule would ensure that NMFS can properly manage those fisheries for which this rule sets lower 2018 ABCs and TACs, which are based on the most recent biological information on the condition of stocks, rather than managing species under the higher TACs set in the previous year's harvest specifications.

    Certain fisheries, such as those for pollock and Pacific cod, are intensive, fast-paced fisheries. Other fisheries, such as those for flatfish, rockfish, skates, sculpins, sharks, and octopuses, are critical as directed fisheries and as incidental catch in other fisheries. U.S. fishing vessels have demonstrated the capacity to catch the TAC allocations in these fisheries. Any delay in allocating the final TAC limits in these fisheries would cause confusion in the industry and potential economic harm through unnecessary discards, thus undermining the intent of this rule. Predicting which fisheries may close is impossible because these fisheries are affected by several factors that cannot be predicted in advance, including fishing effort, weather, movement of fishery stocks, and market price. Furthermore, the closure of one fishery has a cascading effect on other fisheries, for example by freeing up fishing vessels, which would allow them to move from closed fisheries to open ones and lead to an increase in the fishing capacity in those open fisheries, causing those open fisheries to close at an accelerated pace.

    Additionally, in fisheries subject to declining sideboards, delaying this rule's effectiveness could allow some vessels to inadvertently reach or exceed their new sideboard limits. Because sideboards are intended to protect traditional fisheries in other sectors, allowing one sector to exceed its new sideboards by delaying this rule's effectiveness would effectively reduce the available catch for sectors without sideboard limits. Moreover, the new TAC and sideboard limits protect the fisheries from being overfished. Thus, the delay is contrary to the public interest in protecting traditional fisheries and fish stocks.

    If the final harvest specifications are not effective by March 24, 2018, which is the start of the 2018 Pacific halibut season as specified by the IPHC, the hook-and-line sablefish fishery will not begin concurrently with the Pacific halibut IFQ season. Delayed effectiveness of this action would result in confusion for sablefish harvesters and economic harm from unnecessary discard of sablefish that are caught along with Pacific halibut, as both hook-and-line sablefish and Pacific halibut are managed under the same IFQ program. Immediate effectiveness of the final 2018 and 2019 harvest specifications will allow the sablefish IFQ fishery to begin concurrently with the Pacific halibut IFQ season.

    Finally, immediate effectiveness also would provide the fishing industry the earliest possible opportunity to plan and conduct its fishing operations with respect to new information about TAC limits. Therefore, NMFS finds good cause to waive the 30-day delay in effectiveness under 5 U.S.C. 553(d)(3).

    Small Entity Compliance Guide

    This final rule is a plain language guide to assist small entities in complying with this final rule as required by the Small Business Regulatory Enforcement Fairness Act of 1996. This final rule's primary purpose is to announce the final 2018 and 2019 harvest specifications and prohibited species bycatch allowances for the groundfish fisheries of the BSAI. This action is necessary to establish harvest limits and associated management measures for groundfish during the 2018 and 2019 fishing years and to accomplish the goals and objectives of the FMP. This action directly affects all fishermen who participate in the BSAI fisheries. The specific amounts of OFL, ABC, TAC, and PSC amounts are provided in tables to assist the reader. NMFS will announce closures of directed fishing in the Federal Register and information bulletins released by the Alaska Region. Affected fishermen should keep themselves informed of such closures.

    Authority:

    16 U.S.C. 773 et seq.; 16 U.S.C. 1540(f); 16 U.S.C. 1801 et seq.; 16 U.S.C. 3631 et seq.; Pub. L. 105-277; Pub. L. 106-31; Pub. L. 106-554; Pub. L. 108-199; Pub. L. 108-447; Pub. L. 109-241; Pub. L. 109-479.

    Dated: February 21, 2018. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.
    [FR Doc. 2018-03918 Filed 2-26-18; 8:45 am] BILLING CODE 3510-22-P
    83 39 Tuesday, February 27, 2018 Proposed Rules FEDERAL RESERVE SYSTEM 12 CFR Chapter II [Docket No. OP-1597] Internal Appeals Process for Material Supervisory Determinations and Policy Statement Regarding the Ombudsman for the Federal Reserve System AGENCY:

    Board of Governors of the Federal Reserve System.

    ACTION:

    Proposed policy statement; request for comments.

    SUMMARY:

    The Board of Governors of the Federal Reserve System (“Board”) is inviting comments on proposed amendments to its guidelines on an internal appeals process for institutions wishing to appeal an adverse material supervisory determination and to its policy regarding the Ombudsman for the Federal Reserve System.

    DATES:

    Comments should be received April 30, 2018.

    ADDRESSES:

    You may submit comments, identified by Docket No. OP-1597 by any of the following methods:

    Agency Web Site: http://www.federalreserve.gov. Follow the instructions for submitting comments at http://www.federalreserve.gov/generalinfo/foia/ProposedRegs.cfm.

    Email: [email protected] Include the docket 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 will be made available on the Board's website at http://www.federalreserve.gov/generalinfo/foia/ProposedRegs.cfm 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.

    FOR FURTHER INFORMATION CONTACT:

    Jason A. Gonzalez, Special Counsel, (202) 452-3275, or Jay Schwarz, Senior Counsel, (202) 452-2970, Legal Division, Ryan Lordos, Deputy Associate Director, (202) 452-2961, Supervision & Regulation, or Suzanne Killian, Senior Associate Director, (202) 452-2090, or Carol Evans, Associate Director, (202) 452-2051, Division of Consumer and Community Affairs, for matters relating to the appeals process; and Margie Shanks, Ombudsman, (202) 452-3584, or Jay Schwarz, Senior Counsel, (202) 452-2970, Legal Division, for matters relating to the functions of the Ombudsman. Telecommunications Device for the Deaf (TDD) users may call (202) 263-4869.

    SUPPLEMENTARY INFORMATION: I. Background

    The Board of Governors of the Federal Reserve System (“Board”) is committed to maintaining an effective independent, intra-agency appellate process to allow institutions to seek review of material supervisory determinations. The Board is also committed to maintaining an effective Ombudsman to serve as a resource for individuals and institutions that are affected by the Federal Reserve's regulatory and supervisory actions.

    The Board first established guidelines for an appeals process in March 1995, when after a period of public notice and comment, the Board published final guidelines to implement Section 309 of the Riegle Community Development and Regulatory Improvement Act of 1994 (the “Riegle Act”), 12 U.S.C. 4806, which governs the appeals requirements for Federal banking agencies. The existing guidelines provide that all institutions that are subject to Federal Reserve oversight, including bank holding companies, U.S. agencies and branches of foreign banks and Edge corporations, may appeal any material supervisory determination (60 FR 16470 (March 30, 1995)).

    In general, the existing guidelines provide that any institution supervised by the Federal Reserve System (“Federal Reserve”) may file a written appeal of any material supervisory determination. Appeals will then be decided within a specified time frame by a review panel selected by the Reserve Bank, in consultation with Board staff, and comprised of persons who are not employed by the Reserve Bank and have not participated in, or reported to the persons who made the material supervisory determination under review. An institution is granted the further right to appeal an adverse decision by the review panel to the Reserve Bank President and ultimately to a member of the Board. The existing guidelines also have safeguards to protect institutions that file appeals from examiner retaliation.

    The guidelines apply to any “material supervisory determination,” which includes any material matter relating to the examination or inspection process. The only matters excluded from this appeals process are those matters, such as the imposition of a prompt corrective action directive or a cease and desist order or other formal actions, for which an alternative, independent process of appeal exists. As noted in the existing guidelines, institutions are encouraged to express questions or concerns about supervisory determinations during the course of an inspection or examination, consistent with the longstanding Federal Reserve practice of resolving problems informally during the course of the inspection or examination process.

    The Board's existing Ombudsman policy was adopted in August 1995. It specifies the responsibilities of the Ombudsman, which include serving as a point of contact for complaints regarding any System action, referring complaints to the appropriate person, and investigating and resolving complaints of retaliation.

    II. Overview of Proposed Changes Appeals Guidelines

    Since 1995, the Board has had the opportunity to observe the operation of the appeals guidelines over a significant period of time and receive feedback from supervised institutions. Based on that experience and feedback, the Board is now proposing to amend its appellate guidelines in several ways. In particular, the proposed revisions are designed to improve and expedite the appeals process, particularly for institutions that are in troubled condition. In doing so, the proposed revisions attempt to strike an equitable balance among accommodating the interests of the institutions the Federal Reserve supervises in a substantive review of material supervisory determinations, the institutions' interest in achieving a swift resolution of any material supervisory determination in dispute, and the interests of both an appealing institution and the Federal Reserve in the efficient use of limited resources.

    The Board's current appeals process was designed with three levels of appeal in an attempt to ensure objectivity in the appeals process. However, experience has shown that objectivity can be ensured with a more streamlined and efficient process. With these goals in mind, the proposal reduces the levels of appeal from three to two and enhances independent review of the matter by providing that System and Board experts not affiliated with the affected Reserve Bank review the matter at both appeals levels.

    In addition to removing one level of appeal, the proposed revisions address a timing conflict between the Prompt Corrective Action (“PCA”) framework under section 38 of the Federal Deposit Insurance Act and the Board's existing appeals process. PCA requires that, no later than 90 days after an insured depository institution becomes critically undercapitalized, the appropriate Federal banking agency must either appoint a receiver for the institution or take such other action that the Board determines, with the concurrence of the Federal Deposit Insurance Corporation (“FDIC”), would better achieve the purposes of PCA. Although the banking agency's decision to appoint a receiver for a critically undercapitalized institution is not appealable under the Riegle Act, some material supervisory determinations (such as reclassifications of loans) may cause an institution to become critically undercapitalized and, unless reversed, result in receivership.

    The revised process would establish an accelerated process for appeals that relate to or cause an institution to become critically undercapitalized under the PCA framework to better assure that a review of an adverse material supervisory determination occurs within the PCA time frame of 90 days. The goal of this accelerated process is to provide a thorough, adequate, and independent review of the material supervisory determination that places the institution at risk of receivership. Notwithstanding the proposed changes, situations may arise that would prevent an appeal from being completed before PCA requires a receivership to be imposed. In these situations, the existence of an outstanding appeal would not prevent the Board from meeting its statutorily mandated obligation under PCA to appoint a receiver, in which case an appeal will become moot.

    The revised process also establishes specific standards of review to be applied in the two levels of appeal. The panel that reviews the initial appeal must approach the determination being appealed as if no determination had previously been made. The initial review panel will consider a record that includes any relevant materials submitted by the appealing institution and Federal Reserve staff. Under this standard, the panel will have the discretion to rely on examination workpapers and other materials developed by Federal Reserve staff during an examination.

    If the appealing institution continues to have concerns regarding the material supervisory determination following the initial review panel's decision, the appealing institution may request a subsequent final review conducted by a review panel comprised primarily of Board staff. The final review panel will consider whether the decision of the initial review panel is reasonable and supported by a preponderance of the evidence in the record, but will not seek to augment the record with new information. In order to maximize transparency, the decision of the final review panel will be made public.

    The Board welcomes comment on all aspects of the revised guidelines, including, in particular, on (i) the standards of review that are proposed for the two review panels, (ii) the nature and composition of the review panels, (iii) the record that the panels may consider, and (iv) the timeline that is proposed to take PCA into account.

    Ombudsman Policy

    The Board is considering making changes to the Ombudsman policy in conjunction with the changes to the appeals guidelines. Currently, the Ombudsman is the initial recipient of all complaints pertaining to the supervisory process, which may include an appeal request. The proposed revisions would formalize this practice and allow the Ombudsman to attend hearings or deliberations relating to the appeal as an observer, if requested by the institution or Federal Reserve personnel. In addition, the proposed revisions specify that the Ombudsman's role is to be the decision-maker with respect to claims of retaliation. The proposal also emphasizes the Ombudsman's availability to facilitate the informal resolution of concerns that could ultimately lead to formal appeals, clarifies the Ombudsman's role in addressing complaints regarding appeals of consumer complaints, and provides for tracking of complaints made by regulated institutions.

    The Board welcomes comment on all aspects of the Ombudsman policy.

    The Appeals guidelines and Ombudsman policy for the Federal Reserve System are attached as Exhibit A and Exhibit B, respectively.

    By order of the Board of Governors of the Federal Reserve System, February 21, 2018. Ann E. Misback, Secretary of the Board. Exhibit A GUIDELINES FOR APPEALS OF MATERIAL SUPERVISORY DETERMINATIONS

    The Board is committed to maintaining an independent, intra-agency process to review appeals of material supervisory determinations that complies with Section 309 of the Riegle Community Development and Regulatory Improvement Act of 1994, 12 U.S.C. 4806.

    The purpose of these guidelines is to establish a comprehensive appellate process for material supervisory determinations. In order to ensure that institutions will be granted the same appellant rights regardless of the Federal Reserve district in which they reside, appeals will be administered using procedures that are consistent with these guidelines. These guidelines include an accelerated review process to improve their alignment with the PCA framework under section 38 of the Federal Deposit Insurance Act.

    A. In General

    Any institution about which the Federal Reserve makes a material supervisory determination is eligible to utilize the appeals process. An eligible institution includes a state member bank, bank holding company and its nonbank subsidiaries, U.S. agency or branch of a foreign bank, Edge and agreement corporation, savings and loan holding company, third party electronic data processing servicer, systemically important nonbanking financial organization identified by the Financial Stability Oversight Council, and any other entity examined or inspected by the Federal Reserve.

    An appeal under these guidelines may be made of any material supervisory determination. A “material supervisory determination” includes, but is not limited to, any material determination relating to examination or inspection composite ratings, material examination or inspection component ratings, the adequacy of loan loss reserves and/or capital, significant loan classification, accounting interpretation, and Community Reinvestment Act (including component ratings) and consumer compliance rating. The term does not include any supervisory determination for which an independent right of appeal exists. Excluded actions include PCA directives issued pursuant to section 38 of the Federal Deposit Insurance Act (the FDI Act), an action to impose administrative enforcement actions under the FDI Act, the Home Owners' Loan Act of 1933, the Dodd-Frank Wall Street Reform and Consumer Protection Act, the Bank Holding Company Act of 1956 (the BHC Act) or other applicable act, a capital directive, and an order related to approval or denial of a transaction issued pursuant to section 3 or 4 of the BHC Act. Prior to a material supervisory determination being made, it is expected that the supervised institution will have provided all available information it believes to be relevant to the examination staff to assist them in making the determination.

    B. General Procedures for Appealing a Material Supervisory Determination

    In general, the appeals process is an informal process that is not subject to the adjudicative provisions of the Administrative Procedures Act (5 U.S.C. 554-557). An appeal of a material supervisory determination shall be filed and considered pursuant to the following procedures:

    (1) Authorization to File. Any appeal must be approved by the board of directors of the eligible institution, or in the case of a U.S. agency or branch of a foreign bank, the senior management or person(s) responsible for the bank's U.S. operations.

    (2) Timelines and Contents. The institution must file the appeal in writing with the Board's Ombudsman within 30 calendar days of the date of the relevant written material supervisory determination, with a copy to the Officer in Charge of Supervision at the appropriate Reserve Bank. The appeal must include a clear and complete statement of all relevant facts and issues, as well as all arguments that the institution wishes to present, and must include all relevant and material documents that the institution wishes to be considered.

    (3) Distribution of Appeal. After receipt of a request for an appeal, the Board's Ombudsman shall promptly notify the director of the appropriate division of the Board and the Board's General Counsel of the appeal.

    (4) Initial Review Panel. Within ten calendar days of receipt of a timely appeal, the director of the appropriate division of the Board or an officer designated by the appropriate division director must appoint three Reserve Bank employees to form an initial review panel to consider the appeal and an attorney to advise the initial review panel in the exercise of its responsibilities. The members of the initial review panel and the appointed attorney must not have been substantively involved in any matter at issue; must not directly or indirectly report to any person(s) who made the material supervisory determination under review; must not be employed by the Reserve Bank that made the material supervisory determination under review; and must have relevant experience to contribute to the review of the material supervisory determination. An individual shall be considered to have been substantively involved in a material supervisory determination if the individual was personally consulted regarding the issue being determined and provided guidance regarding how it should be resolved. The initial review panel shall determine all procedural issues that are governed by the appeals guidelines.

    (5) Initial Review Meeting. The initial review panel may, in its discretion, conduct an informal appeal meeting. If the panel decides to conduct such a meeting it shall notify the institution in writing of the date, time and place of the meeting, to be set no later than 21 calendar days after the date the appeal is received. The institution may appear at the appeal meeting personally or through counsel to make an oral presentation to the panel. Panel members may ask questions of any person participating in the meeting. The institution and the Reserve Bank may not cross examine persons participating in the meeting. A verbatim transcript of the meeting may be taken if the institution requests a transcript and agrees to pay all expenses, and if the initial review panel determines that a transcript would assist the panel in carrying out its responsibilities. The meeting provided under these guidelines is not governed by formal rules of evidence. No formal discovery is required or permitted. The initial review panel may make any rulings reasonably necessary to facilitate the effective and efficient operation of the meeting.

    (6) Record. The record of the appeal shall at a minimum include the original decision being appealed, the materials submitted by the institution in connection with the appeal and the materials identified by Federal Reserve staff as relevant to the material supervisory determination being appealed, including workpapers. The initial review panel may, in its discretion, supplement the record in the manner described below. The entire record of the appeal, including the decision of the initial review panel and any meeting transcripts or material(s) submitted in connection with any subsequent final review, shall be considered confidential supervisory information of the Board.

    (7) Standard of Review Applied by Initial Review Panel. The initial review panel shall conduct a review of the material supervisory determination on appeal. The panel must consider whether the Reserve Bank's material supervisory determination is consistent with the Board's policies, consistent with applicable laws and regulations, and supported by the record. In doing so, the panel shall make its own supervisory determination and shall not defer to the judgment of the Reserve Bank staff that made the material supervisory determination though it may rely on any examination workpapers developed by the Reserve Bank or materials submitted by the institution if it determines it is reasonable to do so. The panel may supplement the record described above by soliciting the views of outside parties, including staff from the Board, the Reserve Banks, and other supervisory agencies (for example, in cases of joint examinations or inspections), including the Federal Reserve staff who participated in making the material supervisory determination being appealed, prior to issuing a decision. The panel may, in its discretion, conduct additional fact-finding.

    (8) Notice of Decision. Within 45 calendar days after the date the appeal is received, the initial review panel shall provide written notice of its decision to the board of directors of the institution. The notice of decision shall contain a statement of the basis for the initial review panel's decision to continue, terminate, or otherwise modify the material supervisory determination(s) at issue or to remand consideration of the material supervisory determination at issue to the examiners that made the determination to allow them to consider additional evidence presented in connection with the appeal. The notice of decision shall also indicate that the institution may request a final review as set forth in this subpart by filing a written request with the Ombudsman of the Board. The initial review panel may extend the period for issuing a decision by up to 30 calendar days if the panel determines that the record is incomplete and additional fact-finding is necessary for the panel to issue a decision.

    (9) Ombudsman Participation. The Ombudsman may attend, as an observer, hearings or deliberations relating to the appeal. The Ombudsman will not have substantive involvement in or act as a decision-maker with respect to the appeal.

    (10) Use of Confidential Supervisory Information. If the Reserve Bank or the Board have confidential supervisory information from another regulated institution that is pertinent to the appeal, they may elect to use that information, provided that the information is entered into the record for the appeal and provided to the appealing institution, subject to limitations on disclosure, including those imposed by the Board's applicable regulations,1 and redaction of all information not relevant to the appeal.

    1 See 12 CFR 261.20.

    (11) Request for Final Review. Within 14 calendar days after notice of decision by the initial review panel, the institution, with the consent of its board of directors, or in the case of a U.S. agency or branch of a foreign bank, the senior management person(s) responsible for the bank's U.S. operations, may appeal that decision to a final review panel by filing a written request for final review with the Ombudsman. The request for final review must state all the reasons, legal and factual, the institution disagrees with the initial review panel's decision.

    (12) Waiver of Final Review. Failure to timely request final review in a manner consistent with these guidelines shall constitute a waiver of the opportunity for final review, and the decision of the initial review panel shall constitute a final and unappealable material supervisory determination.

    (13) Distribution of Final Review Request. After receipt of a request for final review, the Board's Ombudsman shall promptly notify the director of the appropriate division of the Board and the Board's General Counsel of the request for final review.

    (14) Final Review Panel. When an institution files a request for final review, the director of the appropriate division of the Board shall promptly appoint three individuals to form a final review panel to permit completion of the appeal within the applicable period. The final review panel shall include at least two Board employees, at least one of whom must be an officer of the Board at the level of associate director or higher. The Board's General Counsel shall appoint an attorney to advise the final review panel in the exercise of its responsibilities. The members of the final review panel and the appointed attorney must not be employed by the Reserve Bank that made the material supervisory determination under review; must not have been members of the initial review panel; and must not have been personally consulted regarding the issue being determined and provided guidance regarding how it should be resolved, or directly or indirectly report to the person(s) who made the material supervisory determination under review. The final review panel shall determine all procedural issues regarding the final review.

    (15) Final Review Meeting. The final review panel may determine in its discretion to have an informal appeal meeting at which a representative of the institution or counsel may appear personally to make an oral presentation to the panel. No facts may be introduced in this meeting that are not contained in the record upon which the initial review panel made its decision. In the event the panel decides to have a meeting with the appealing institution, panel members may ask questions of any person participating in the meeting. The institution may not cross examine persons participating in the meeting. A verbatim transcript of the meeting may be taken at the cost of the Board if the final review panel determines that a transcript would assist the panel in carrying out its responsibilities. The meeting provided under these guidelines is not governed by formal rules of evidence. No formal discovery is required or permitted. The final review panel may make any procedural rulings reasonably necessary to facilitate the effective and efficient operation of the meeting.

    (16) Scope of Final Review. The scope of the final review shall be confined to the record upon which the initial review panel made its decision.

    (17) Standard of Review of Final Review. The final review panel shall determine whether the decision of the initial review panel is reasonable. In reaching this determination, the panel should consider, among other things, whether the decision was based on a consideration of the relevant factors, whether there has been a clear error of judgment, and whether the decision is supported by a preponderance of the evidence. The final review panel may affirm the decision of the initial review panel even if it is possible to draw a contrary conclusion from the record presented on appeal.

    (18) Final Review Decision. Within 21 calendar days of the filing of a request for final review, the director of the appropriate division of the Board shall provide written notice of the decision of the final review panel to the board of directors of the institution. The final review panel may continue, terminate, or otherwise modify the material supervisory determination(s) at issue or remand consideration of the material supervisory determination at issue to the examiners that made the determination to allow them to consider additional evidence presented in connection with the appeal. A copy of the decision will be provided to the director of the appropriate division of the Board and the Officer in Charge of Supervision at the appropriate Reserve Bank. A copy of the decision will be published as soon as practicable, and the published decision will be redacted to avoid disclosure of exempt information. In cases in which redaction is deemed insufficient to prevent improper disclosure, the published decision may be presented in summary form.

    C. Expedited Procedures for Appealing a Material Supervisory Determination

    When a material supervisory determination relates to or causes an institution to become critically undercapitalized, the review of any appeal of that supervisory determination will be processed on an expedited basis.

    Notwithstanding any other provision in these guidelines, a matter processed under expedited review will be subject to the same policies that govern all appeals except that the initial review panel will issue a decision within 35 calendar days following the date the appeal is received (such period may be extended by up to an additional 7 calendar days if the initial review panel decides that such time is required to supplement the record and to consider any additional information received), the institution shall have 7 days to file an appeal of the initial review panel's decision, and the final review panel will issue a decision within 10 calendar days.

    D. Effect of Appeal on Material Supervisory Determinations

    A material supervisory determination shall remain in effect while under appeal and until such time as it is modified or overturned through the appeals process. An appeal does not prevent or suspend the Federal Reserve or any other appropriate agency from taking any supervisory or enforcement action-either formal or informal-it deems appropriate to discharge the agency's supervisory responsibilities. In such cases, the rights of appeal provided for in the statutes and regulations concerning those actions shall govern.

    In addition, an appeal does not prevent or suspend the operation of the PCA framework under section 38 of the Federal Deposit Insurance Act, prevent or suspend an appropriate authority from appointing a receiver for the institution or otherwise causing the closure of an institution, or prevent or suspend an appropriate authority from taking any other action under the PCA framework. If the institution is placed into receivership while an appeal is outstanding, the appeal will be considered moot and will not be completed.

    E. Safeguards Against Retaliation

    Neither the Federal Reserve nor any employee of the Federal Reserve may retaliate against an institution or person based on the filing or outcome of an appeal under this guidance. In accordance with longstanding Federal Reserve practice, the appeals framework is intended to foster an environment where concerns and issues may be freely and openly discussed.

    Each Reserve Bank shall provide institutions with notice of the Board's anti-retaliation policy in connection with each Federal Reserve led examination.

    An institution that believes that it has suffered retaliation or any other form of unfair treatment is encouraged to contact the appropriate Reserve Bank, and may file a claim of retaliation with the Board's Ombudsman. The Ombudsman may attempt to resolve a claim of retaliation informally by engaging in discussions with the concerned institution and the appropriate Board or Reserve Bank staff.

    Nothing in this guidance is intended to prevent the Ombudsman from initiating a factual inquiry into alleged retaliation at any time. The Ombudsman may initiate a factual inquiry into a claim of retaliation, at any time, by providing notice to the appropriate Board division director(s) and the appropriate Reserve Bank officer in charge of supervision. As part of the inquiry, the Ombudsman may collect and review documents, interview witnesses, and consult Board and Reserve Bank staff with subject matter expertise. The Ombudsman also may request that the appropriate division director authorize or assign such additional resources as necessary to assist the Ombudsman in fully reviewing the matter.

    Upon the completion of a factual inquiry into a claim of retaliation, if the Ombudsman concludes that retaliation has occurred, the Ombudsman will forward the claim of retaliation, along with the Ombudsman's factual findings to the appropriate division director(s) of the Board. These officials will take appropriate action to resolve the matter. In addition, to prevent future retaliation for an appeal, the Ombudsman may recommend to the appropriate division director(s) that the next examination of the institution or review that may lead to a material supervisory determination exclude personnel involved in the claim of retaliation. The division director(s) will make the final decision as to whether any examination staff should be excluded.

    The Board's Ombudsman will contact institutions within six months after a material supervisory determination appeal has been decided to inquire whether retaliation has occurred.

    F. Availability of Procedures

    The Federal Reserve, through the Board and Reserve Banks, shall make these guidelines readily available on its public website and to any member of the public who requests them.

    Exhibit B Ombudsman for the Federal Reserve System Policy Statement

    Section 309 of the Riegle Community Development and Regulatory Improvement Act of 1994, 12 U.S.C. 4806, requires each of the federal banking agencies to appoint an Ombudsman. Section 309 provides that the Ombudsman:

    (1) is to act as a liaison between the agency and any affected person with respect to any problem such party may have in dealing with the agency resulting from the regulatory activities of the agency; and

    (2) is to ensure that safeguards exist to encourage complainants to come forward and preserve confidentiality.

    Mission of the Ombudsman. The Ombudsman is charged with performing three major functions: (1) serving as a facilitator and moderator for the fair and timely resolution of complaints related to the Federal Reserve System's regulatory activities; (2) reporting to the Board on issues that are likely to have a significant impact on the Federal Reserve System's missions, activities, or reputation that arise from the Ombudsman's review of complaints, such as patterns of issues that occur in multiple complaints; (3) receiving, reviewing, and deciding claims of retaliatory conduct by Federal Reserve System staff. The Ombudsman also serves as the initial recipient for an appeal of a material supervisory determination and plays a role in resolving appeals of some consumer complaints. In addition, the Ombudsman ensures that safeguards exist to encourage complainants to come forward and to protect confidentiality.

    Serving as a Complaint Facilitator. The Ombudsman assists institutions with issues and questions related to Reserve Bank or Board regulatory activities. In doing so, the Ombudsman shall operate independently of the supervisory process to the extent necessary to ensure that appropriate safeguards exist to encourage complainants to come forward and preserve confidentiality.

    In situations where the Board has not established a process for addressing a certain type of question or complaint, the Ombudsman is available to facilitate the resolution of the question or complaint. Although the Ombudsman does not have decision-making authority regarding any substantive matters, including supervisory determinations and regulatory action (other than for retaliation claims), the Ombudsman is available to assist institutions, and particularly community banks, in locating the correct System staff person to address or resolve such a question or complaint and may coordinate meetings and facilitate discussions between the institution and System staff, including senior officials, as necessary. In order to facilitate this process, the Ombudsman may investigate the situation in order to identify the relevant facts and circumstances. The Ombudsman may also participate in meetings or discussions related to the matter if requested by either the institution or System staff, and may require updates from System staff, as appropriate, until the matter is resolved. If the Ombudsman believes such a complaint has not been satisfactorily addressed, the Ombudsman may raise the matter with the appropriate Division Director or Board committee, as appropriate.

    When an issue is brought to the attention of the Ombudsman for which the Board's rules or procedures provide an avenue of appeal or another appropriate forum for resolution, the Ombudsman will explain the process to the complaining party, and direct the party to the appropriate appeals process or forum for the complaint.1 In addition, the Ombudsman is also available to facilitate informal discussions between a potential appellant and the appropriate Reserve Bank or Board staff in order to explore solutions before an appeal is filed. Such discussions do not stay or otherwise alter any of the deadlines under the Board's rules or procedures.

    1 The Board's rules provide existing mechanisms for resolutions of complaints in many instances, such as: material supervisory determinations pursuant to section 309(a) of the Act; review of actions delegated to the Reserve Banks or Board staff pursuant to 12 CFR part 265; prompt corrective action directives under section 38 of the Federal Deposit Insurance Act; denials or partial denials of Freedom of Information or Privacy Act requests; issuance of capital directives pursuant to 12 CFR 263.80-263.85; decisions with respect to applications; and matters within the jurisdiction of the Board's Inspector General or Federal or State investigatory or prosecutorial authorities.

    The Ombudsman will serve as the initial recipient for an appeal of a material supervisory determination and may attend, as an observer, hearings or deliberations relating to the appeal if requested by either the institution or System personnel. In any event, the Ombudsman will not have any substantive involvement in or act as a decision-maker with respect to the appeal.

    Providing Feedback on Patterns of Issues. The Ombudsman is in a unique position to identify and report patterns of issues arising from complaints related to Reserve Bank or Board regulatory activities. The Ombudsman will track inquiries and complaints based on relevant characteristics, such as geographic location, scope, policy implications, and final disposition, to help identify any such trends, including trends that implicate differently sized institutions disproportionately. This tracking will be conducted in a manner designed to preserve confidentiality of the complainant to the maximum extent possible. As appropriate, the Ombudsman will report findings of patterns of issues to the appropriate Board committee or division director and Reserve Bank or Board staff. The Ombudsman will also report any issue stemming from a complaint that is likely to have a significant impact on the Federal Reserve System's mission, activities, or reputation.

    Retaliation Claims by Supervised Persons. The Federal Reserve Board does not tolerate retaliation by System staff against a supervised institution or its employees (“supervised persons”). Retaliation is defined as any action or decision by Reserve Bank or Board staff that causes a supervised person to be treated differently or more harshly than other similarly situated institutions because the supervised person attempted to resolve a complaint by filing an appeal of a material supervisory determination or utilized any other Board mechanisms for resolving complaints. Retaliation includes, but is not limited to, delaying or denying action that might benefit a supervised person without a sound supervisory reason or subjecting a supervised institution to heightened examination standards without a sound supervisory reason.

    The Ombudsman is authorized to receive, review, and determine the merits of complaints of retaliatory conduct by Reserve Bank or Board staff. The Ombudsman may attempt to resolve retaliation claims informally by engaging in discussions with the concerned supervised person and the appropriate Board or Reserve Bank staff. If a complaint cannot be resolved informally, the Ombudsman may initiate a full investigation into the underlying facts and circumstances.

    To commence a factual investigation of a complaint of retaliatory conduct, the Ombudsman should provide written notice to the appropriate Board committee and division director and the appropriate Reserve Bank officer in charge of supervision. As part of the investigation, the Ombudsman may, among other things, collect and review documents, interview witnesses, and seek any other relevant information. The Ombudsman may also consult Board and Reserve Bank staff with subject matter expertise. Where necessary, the appropriate Board committee or division director may authorize or assign such additional resources as may be needed to assist the Ombudsman in fully reviewing the matter.

    Upon completion of the factual investigation of a complaint of retaliatory conduct, the Ombudsman will decide whether a member of System staff retaliated, as defined above. The Ombudsman will report this determination to the appropriate Board committee or Governor and division director and the appropriate Reserve Bank officer in charge of supervision and may make recommendations for resolution of the matter to those parties. However, the Ombudsman shall not make recommendations regarding disciplinary action against a System staff member. The Ombudsman's determination regarding retaliation will be communicated in writing to the supervised person.

    To further ensure that supervised persons are not subjected to retaliation, as defined above, the Ombudsman will contact a supervised institution within six months after an appeal has been decided to inquire whether retaliation occurred. Where possible, the Ombudsman will also contact the institution after the next examination following an appeal. In the event an institution complains of retaliation, the Ombudsman will initiate the process outlined above to informally review the matter or initiate a factual investigation.

    Consumer Complaints and Appeals. Independent of the Ombudsman function, the Federal Reserve System operates a consumer complaint and inquiry program to assist members of the public who are experiencing problems with their financial institution. In accordance with this program, the Ombudsman will refer all consumer complaints to the Division of Consumer and Community Affairs (DCCA). DCCA will review the complaint to determine appropriate handling. If a new complaint is received, DCCA will refer the complaint to the Federal Reserve Consumer Help Center (FRCH) for processing. If the complainant requested an independent review of a previously filed complaint, the Ombudsman will refer the complaint to DCCA, who will perform the review and respond to the complainant. The Ombudsman will consult with DCCA during the appeal investigation, and in some instances, suggest additional actions, including further investigations that should be taken to ensure that the matter is fully and fairly addressed. When responding to the complainant, DCCA will also provide a final copy of the response letter to the Ombudsman.

    If the Ombudsman receives a complaint regarding DCCA's review of an appeal, the Ombudsman will collect and review the complaint documents and seek any other relevant information. The Ombudsman may also consult Board and Reserve Bank staff to discuss the details of the previous complaint investigations. The Ombudsman is responsible for responding to the complainant with its determination. As appropriate, the Ombudsman will contact the appropriate Board division director and Reserve Bank staff with feedback or concerns.

    Safeguards. These policies, processes, and practices are intended as safeguards to encourage complainants to come forward with issues or complaints related to the Federal Reserve System's regulatory activities.

    To the extent possible, the Ombudsman will honor requests to keep confidential the identity of a complaining party. It must be recognized, however, that it may not be possible for the Ombudsman to resolve certain complaints, including complaints of retaliation, if the Ombudsman cannot disclose the identity of the complaining party to other members of Federal Reserve staff.

    Procedures. A party may contact the Ombudsman at any time regarding concerns or issues resulting from the regulatory activities of the Board or the Reserve Banks by calling 1-800-337-0429, by sending a fax to 202-530-6208, by writing to the Office of the Ombudsman, Board of Governors of the Federal Reserve System, Washington, D.C. 20551, or by sending an email to [email protected]

    [FR Doc. 2018-03907 Filed 2-26-18; 8:45 am] BILLING CODE 6210-01-P
    DEPARTMENT OF EDUCATION 34 CFR Part 300 RIN 1820-AB77 [Docket ID ED-2017-OSERS-0128] Assistance to States for the Education of Children With Disabilities; Preschool Grants for Children With Disabilities AGENCY:

    Office of Special Education and Rehabilitative Services (OSERS), Department of Education.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    In order to ensure the Department's “Equity in IDEA” or “significant disproportionality” regulations effectively address significant disproportionality, the Department proposes to postpone the compliance date by two years, from July 1, 2018, to July 1, 2020. The Department also proposes to postpone the date for including children ages three through five in the analysis of significant disproportionality with respect to the identification of children as children with disabilities and as children with a particular impairment from July 1, 2020, to July 1, 2022.

    DATES:

    We must receive your comments on or before May 14, 2018.

    ADDRESSES:

    Submit your comments through the Federal eRulemaking Portal or via postal mail, commercial delivery, or hand delivery. We will not accept comments by fax or email. To ensure that we do not receive duplicate copies, please submit your comments only once. In addition, please include the Docket ID at the top of your comments.

    Federal eRulemaking Portal: Go to www.regulations.gov to submit your comments electronically. Information on using Regulations.gov, including instructions for accessing agency documents, submitting comments, and viewing the docket is available on the site under the “Help” tab.

    Postal Mail, Commercial Delivery, or Hand Delivery: The Department strongly encourages commenters to submit their comments electronically. However, if you mail or deliver your comments in response to this request, address them to Johnny W. Collett, Assistant Secretary, Office of Special Education and Rehabilitation Services, U.S. Department of Education, 400 Maryland Avenue SW, Room 5107, Potomac Center Plaza, Washington, DC 20202-2500.

    Privacy Note: The Department's policy is to make all comments received from members of the public available for public viewing in their entirety on the Federal eRulemaking Portal at www.regulations.gov. Therefore, commenters should be careful to include in their comments only information that they wish to make publicly available.

    FOR FURTHER INFORMATION CONTACT:

    Kate Friday, U.S. Department of Education, 400 Maryland Avenue SW, Room 5104, Potomac Center Plaza, Washington, DC 20202-2500. Telephone: (202) 245-7605, or by email at: [email protected]

    If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service, toll free, at 1-800-877-8339.

    SUPPLEMENTARY INFORMATION:

    Invitation to Comment: We invite you to submit comments regarding this notice of proposed rulemaking. We will consider comments on proposed delayed compliance dates only and will not consider comments on the text or substance of the final regulations. See ADDRESSES for instructions on how to submit comments.

    During and after the comment period, you may inspect all public comments about this notice of proposed rulemaking by accessing Regulations.gov. You may also inspect the comments in person in Room 5104, 400 Maryland Avenue SW, Potomac Center Plaza, Washington, DC, between 8:30 a.m. and 4:00 p.m. Washington, DC time, Monday through Friday of each week, except Federal holidays. If you want to schedule time to inspect comments, please contact the person listed under FOR FURTHER INFORMATION CONTACT.

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

    On February 24, 2017, President Trump signed Executive Order 13777, “Enforcing the Regulatory Reform Agenda,” which established a policy “to alleviate unnecessary regulatory burdens” on the American people. Section 3(a) of the Executive Order directed each Federal agency to establish a regulatory reform task force, the duty of which is to evaluate existing regulations and “make recommendations to the agency head regarding their repeal, replacement, or modification.” On June 22, 2017, therefore, the Department published a notice in the Federal Register (82 FR 28431) seeking input on regulations that may be appropriate for repeal, replacement, or modification.

    As part of that regulatory review exercise, OSERS is reviewing the Assistance to States for the Education of Children With Disabilities; Preschool Grants for Children With Disabilities regulations (the “Equity in IDEA” or “significant disproportionality” regulations), published in the Federal Register on December 19, 2016 (81 FR 92376). We are, therefore, proposing to postpone the compliance by two years in order that the Department may review the regulation to ensure it effectively addresses significant disproportionality.

    Statute: Section 618(d)(1) of IDEA (20 U.S.C. 1418(d)(1)) requires every State that receives IDEA Part B funds to collect and examine data to determine if significant disproportionality based on race or ethnicity exists in the State or the LEAs of the State with respect to (a) the identification of children as children with disabilities; (b) the placement in particular educational settings of such children; and (c) the incident, duration, and type of disciplinary actions, including suspensions and expulsions. IDEA does not define “significant disproportionality” or instruct how data must be collected and examined.

    Current Regulations: The current Equity in IDEA regulations effectively define “significant disproportionality.” Sections 300.646(b) and 300.647 establish a standard methodology States must use to determine whether significant disproportionality based on race and ethnicity is occurring in the State and in its local educational agencies (LEAs) with respect to the identification, placement, and discipline of children with disabilities.

    In addition, if a State determines that there is significant disproportionality occurring in an LEA, section 618(d)(2)(B) of the Individuals with Disabilities Education Act (IDEA) and § 300.646(d) require the LEA to reserve 15 percent of its Part B funds to be used for comprehensive coordinated early intervening services (comprehensive CEIS). Section 300.646(d)(1)(ii) requires the LEA to identify and address the factors contributing to significant disproportionality as part of implementing comprehensive CEIS. Section 300.646(d)(2) expands the populations of children eligible for these services to include children, with and without disabilities, from age 3 through grade 12.

    The significant disproportionality regulations became effective January 18, 2017, but the Department delayed the date for compliance. States are not required to begin complying until July 1, 2018, and are not required to include children ages three through five in their analyses of significant disproportionality with respect to the identification of children as children with disabilities and as children with a particular impairment until July 1, 2020.

    Proposed Regulations: The Department proposes to postpone the compliance date for implementing the regulations to July 1, 2020 from July 1, 2018. The Department also proposes to postpone the compliance date for including children ages three through five in the significant disproportionality analysis to July 1, 2022, from July 1, 2020.

    Reasons: As the Department noted in the Notice of Proposed Rulemaking (NPRM) proposing the significant disproportionality regulations and again in the final rule adopting them, the status quo for school districts across the country properly identifying children with disabilities is troubling. In 2012, American Indian and Alaska Native students were 60 percent more likely to be identified for an intellectual disability than children in other racial or ethnic groups, while black children were more than twice as likely as other groups to be so identified. Similarly, American Indian or Alaska Native students were 90 percent more likely, black students were 50 percent more likely, and Hispanic students were 40 percent more likely to be identified as having a learning disability. In addition, black children were more than twice as likely to be identified with an emotional disturbance. And yet, in SY 2012-13, only 28 States and the District of Columbia identified any LEAs with significant disproportionality, and of the 491 LEAs identified, 75 percent were located in only seven States. Of the States that identified LEAs with significant disproportionality, only the District of Columbia and four States identified significant disproportionality in all three categories of analysis—identification, placement, and in discipline. 81 FR 92380.

    The Department is concerned, however, given the public comments it has received in response to its general solicitation in 2017 on regulatory reform, that the Equity in IDEA regulations may not appropriately address the problem of significant disproportionality. We therefore propose to postpone by two years the compliance dates for the regulations so that we may review all of the issues raised and determine how to better serve children with disabilities.

    A number of commenters suggested, for example, that the Department lacks the statutory authority under IDEA to require States to use a standard methodology, pointing out as well that the Department's previous position, adopted in the 2006 regulations implementing the 2004 amendments to IDEA, was that States are in the best position to evaluate factors affecting determinations of significant disproportionality.

    Similarly, one detailed comment expressed concern that the standard methodology improperly looks at group outcomes through statistical measures rather than focusing on what is at the foundation of IDEA, namely the needs of each individual child and on the appropriateness of individual identifications, placements, or discipline. Further, a number of commenters suggested that the standard methodology would provide incentives to LEAs to establish numerical quotas on the number of children who can be identified as children with disabilities, assigned to certain classroom placements, or disciplined in certain ways.

    Finally, still other commenters suggested that the Department could not accurately assess the impact of the regulations given that it did not provide any standards by which it would assess the required “reasonableness” of State risk ratio thresholds and that calculations of significant disproportionality should be better aligned with State Performance Plan indicators, including the percent of districts that have a significant discrepancy, by race or ethnicity, in the rate of suspensions and expulsion for children with disabilities (Indicator 4B), and the percent of districts with disproportionate representation of racial and ethnic groups in special education and related services (Indicator 9) and in specific disability categories (Indicator 10) that is the result of inappropriate identification.

    Executive Orders 12866, 13563, and 13771 Regulatory Impact Analysis

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

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

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

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

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

    This proposed regulatory action is a significant regulatory action subject to review by OMB under section 3(f) of Executive Order 12866.

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

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

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

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

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

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

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

    We are issuing this proposed regulatory action only upon a reasoned determination that its benefits justify its costs. Based on the analysis that follows, the Department believes that these regulations are consistent with the principles in Executive Order 13563.

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

    In this regulatory impact analysis we discuss the need for regulatory action, alternatives considered, the potential costs and benefits, net budget impacts, assumptions, limitations, and data sources.

    Need for These Regulations

    As explained in the previous section, we are proposing this regulatory action in order to delay implementation of a regulation that we are concerned may not meet its fundamental purpose, namely to properly identify and address significant disproportionality among children with disabilities. We propose the delay as well to give the Department, the States, and the public additional time to study the questions involved and determine how to better serve children with disabilities.

    Alternatives Considered

    The Department considered proposing a delay of the compliance dates for different lengths of time and decided upon two years as an appropriate length, given a realistic measure of how long it takes the agency to develop, propose, and promulgate complex regulations. In the Department's experience, one year is too little time as a general matter and, for these regulations in particular, given the amount of work on this issue the Department has already done, three years is too long.

    Analysis of Costs and Benefits

    The Department has analyzed the costs of complying with the proposed regulatory action. While postponing the obligation to comply with the regulations would not place any new requirements on States, the delay in the compliance date would reduce costs over the 10 years relative to the baseline set out in the December 2016 final rule.

    The Department estimates that this regulatory action would generate cost savings between $10.9 and $11.5 million, with a reduction in transfers of between $59.6 and $63.0 million. These savings are driven by two separate, but related factors: Fewer States implementing the regulations during the 2018-19 and 2019-20 school years and, as a result, the lower number of LEAs identified as having significant disproportionality in each of those years under the standard methodology.

    In developing our estimates, the Department assumed that a small number of States, who may already be prepared, or nearly prepared, to implement the regulations on July 1, 2018 will continue to do so, regardless of any delay in the compliance date. We also assume that a subset of States will implement the regulations in the following school year (2019-20), with the remainder of States waiting until the 2020 compliance date to implement the regulations. We assume that 10 States would implement the revised regulations on July 1, 2018, five States would implement them as of July 1, 2019, and the remaining 40 would wait until July 1, 2020.

    Further, the Department estimates that the number of LEAs identified with significant disproportionality in each year as a result of the revised regulations would be reduced due to the delay in implementation. Previously, the Department estimated that 400 new LEAs would be identified each year. We estimate that the delay in compliance date would result in only 80 additional LEAs being identified in the 2018-2019 school year (a reduction of 320) and only 100 additional LEAs identified in the 2019-20 school year (a reduction of 300). These estimates assume that the number of additional LEAs identified each year is roughly proportional to the number of States that implement the revised regulations.1

    1 This calculation of savings includes a change to the baseline in the December 2016 final rule due to an incorrect calculation in the 3 percent discount rate, shown in detail in the cost analysis spreadsheet posted in the docket with this document. This calculation of cost savings does not change any of the assumptions regarding wage rates, hours of burden, or number of personnel that were discussed in the final rule. The assumptions upon which the cost-benefit calculations in the final rule are based are being evaluated by the Department as part of the review of the final rule itself.

    Executive Order 13771

    Consistent with Executive Order 13771 (82 FR 9339, February 3, 2017), we have estimated that this proposed regulatory action will not impose any additional costs.

    Regulatory Flexibility Act Certification

    The Secretary certifies that these proposed regulations would not have a significant economic impact on a substantial number of small entities.

    The U.S. Small Business Administration (SBA) Size Standards define “small entities” as for-profit or nonprofit institutions with total annual revenue below $7,000,000 or, if they are institutions controlled by small governmental jurisdictions (that are comprised of cities, counties, towns, townships, villages, school districts, or special districts), with a population of less than 50,000. These proposed regulations would affect all LEAs, including the estimated 17,371 LEAs that meet the definition of small entities. However, we have determined that the proposed regulations would not have a significant economic impact on these small entities. As stated earlier, this proposed regulatory action imposes no new costs.

    Paperwork Reduction Act of 1995

    This regulatory action does not contain any information collection requirements.

    Intergovernmental Review

    This program is subject to Executive Order 12372 and the regulations in 34 CFR part 79. One of the objectives of the Executive order is to foster an intergovernmental partnership and a strengthened federalism. The Executive order relies on processes developed by State and local governments for coordination and review of proposed Federal financial assistance.

    This document provides early notification of the Department's specific plans and actions for this program.

    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 the 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.

    List of Subjects in 34 CFR Part 300

    Administrative practice and procedure, Education of individuals with disabilities, Elementary and secondary education, Equal educational opportunity, Grant programs—education, Privacy, Private schools, Reporting and recordkeeping requirements.

    Dated: February 23, 2018. Johnny W. Collett, Assistant Secretary for Special Education and Rehabilitative Services.
    [FR Doc. 2018-04102 Filed 2-23-18; 4:15 pm] BILLING CODE 4000-01-P
    POSTAL SERVICE 39 CFR Part 111 Proposed Changes to Validations for Intelligent Mail Package Barcode AGENCY:

    Postal ServiceTM.

    ACTION:

    Proposed rule.

    SUMMARY:

    The Postal Service is proposing to revise the Mailing Standards of the United States Postal Service, Domestic Mail Manual (DMM®), to add new Intelligent Mail® package barcode (IMpb) validations for evaluating compliance with IMpb requirements for all mailers who enter commercial parcels.

    DATES:

    Submit comments on or before March 29, 2018.

    ADDRESSES:

    Mail or deliver written comments to the manager, Product Classification, U.S. Postal Service, 475 L'Enfant Plaza SW, Room 4446, Washington, DC 20260-5015. If sending comments by email, include the name and address of the commenter and send to [email protected], with a subject line of “Intelligent Mail Package Barcode Validations.” Faxed comments are not accepted. You may inspect and photocopy all written comments, by appointment only, at USPS® Headquarters Library, 475 L'Enfant Plaza SW, 11th Floor North, Washington, DC 20260. These records are available for review on Monday through Friday, 9 a.m.-4 p.m., by calling 202-268-2906.

    FOR FURTHER INFORMATION CONTACT:

    Direct questions or comments to Juliaann Hess at [email protected] or (202) 268-7663.

    SUPPLEMENTARY INFORMATION:

    The Postal Service is proposing to update IMpb requirements relative to Compliance Quality Validations for Thresholds, Address Quality, Shipping Services File Manifest Quality, and Barcode Quality. These proposed validations would allow the Postal Service to further improve service, tracking, visibility, and positive customer experiences along with better identifying noncompliant mailpieces.

    Technical and in-depth IMpb guidance is available in Publication 199, Intelligent Mail Package Barcode Implementation Guide for: Confirmation Services and Electronic Verification System Mailers, which is conveniently located on the PostalPro website at https://postalpro.usps.com. This publication would be updated to reflect all adopted changes.

    Background

    On December 18, 2013, in a notice of final rulemaking (78 FR 76548-76560), the Postal Service announced that mailers who enter commercial parcels must adhere to the following: IMpb must be used on all commercial parcels; piece-level information must be submitted to the Postal Service via an approved electronic file format (except for mailers generating barcodes for use on return services products, such as MRS); and electronic files must include the complete destination delivery address and/or an 11-digit Delivery Point Validation (DPV®) ZIP Code® for all records, except for Parcel Return Service, a ZIP+4® Code is required to be encoded into the barcode for all returns products.

    Since IMpb requirements were implemented, the Postal Service has made significant advances with its package strategy. Use of IMpbs continues to be the critical bridge between physical packages and the digital information required to enable world class service, tracking, visibility, and positive customer experiences. Barcode intelligence along with the corresponding digital data captured through in-transit processing and delivery scans are fundamental requirements in the shipping market. The data have enabled the Postal Service and its customers to enhance products, improve customer satisfaction, increase efficiencies, provide greater visibility, integrate with eCommerce and supply chain systems, enhance performance and analytics tools, and generate actionable business insights for better decisions.

    In January 2015, the Postal Service required that all parcels with an IMpb be accompanied by the complete destination delivery address or an 11-digit ZIP Code (validated by the DPV System, or an approved equivalent) in the Shipping Services File or other approved electronic documentation. This information is critical to the Postal Service package strategy, the dynamic routing process that enable package distribution without scheme-trained employees, improving the customer's experience, and enhancing business insights and analytics.

    In January 2016, the Postal Service began measuring the quality of mailer compliance for the newly introduced IMpb Compliance Quality Category with data validations to determine the IMpb Compliance Assessment criteria as follows: Address Quality, Manifest Quality, and Barcode Quality. Then, in July 2017, the Postal Service began assessing mailers with a $0.20 IMpb Noncompliance Fee for commercial, competitive parcels (Priority Mail, Priority Mail Express, First-Class Package Service, Parcel Select and Parcel Select Lightweight) that did not meet the established thresholds for one or more IMpb Compliance Quality Categories. For customers using the Electronic Verification System (eVS®), the Postal Service assessed the fee based on the individual mail class or aggregate compliance performance, whichever results in the lowest financial impact to the customer. The fee is not assessed on packages when a price adjustment results in single-piece pricing.

    As of January 21, 2018, addresses and products for Puerto Rico or that contain an Open & Distribute Service Type Code were eliminated from all Address Quality validations.

    Proposal Overview Intelligent Mail Package Barcode Quality Requirements

    This section provides an overview of the IMpb Compliance Quality Validation and Threshold requirements that the Postal Service is proposing to revise. As indicated in the table that follows, on July 1, 2018, and February 1, 2019, the Postal Service would begin assessing quality using the newly proposed thresholds.

    If commercial, competitive parcels consisting of Priority Mail, Priority Mail Express, First-Class Package Service, Parcel Select, and Parcel Select Lightweight exceed the compliance thresholds outlined below, a $0.20 IMpb Noncompliance Fee would be assessed for each piece. This fee would only be assessed on the number of pieces that fall below the threshold according to the following examples:

    Example 1: In the case of 100 pieces being shipped, if 98 pieces are in compliance, no pieces would be charged the $0.20 per-piece fee.

    Example 2: In the case of 100 pieces being shipped, if only 90 pieces are in compliance, 8 pieces would be assessed the $0.20 per-piece fee.

    If the threshold for more than one category is not met, the fee is assessed based on the IMpb Compliance Quality threshold that yields the greatest number of noncompliant pieces. The fee is charged only once per noncompliant mailpiece and is only applicable to the following competitive parcels: Priority Mail, Priority Mail Express, First-Class Package Service, Parcel Select, and Parcel Select Lightweight.

    Intelligent Mail Package Barcode Compliance Quality Categories, Validations and Thresholds Compliance categories Compliance codes Validations July 2018 thresholds February 2019 thresholds Address Quality: Checks for a timely address that validates to a unique 11 Digit DPV AQ Must include a full, valid destination delivery address that has sufficient quality to yield an 11-digit ZIP Code that matches the delivery point in the file as follows:
  • Valid secondary address information.
  • 89 TBD
    Match between address to ZIP+4 Code Includes street number Valid primary street number Customers using eVS must provide the address information prior to the Arrival at Unit (07) Event Scan and non-eVS customers at the time of mailing Manifest Quality (Shipping Services File): Checks for a timely Manifest File that passes 4 critical validation criteria MQ Entry facility must match between scan and manifest
  • Valid PO of Account ZIP Code (Where account is held for payment)
  • Valid Payment Account (Permit Number).
  • Valid Method of Payment (Permit, Federal Agency, PC Postage, Smart Meter, Other Meter, or Stamps)
  • 94 94
    Barcode Quality: Checks the Barcode in the manifest that passes 2 critical validations BQ Valid and Certified Mailer ID in the label that is in Program Registration/Online Enrollment
  • IMpb must be unique for 120 days.
  • 98 98
    Address Quality

    The Postal Service proposes to update the threshold for the Address Quality IMpb requirements described in this section. If destination delivery address information is included in the Shipping Services File or Shipping Partner Event File, the address elements must be complete and have sufficient quality to yield an 11-digit ZIP Code that matches the delivery point. Address Quality measures the percentage of addresses that contain sufficient information to validate to the 11-digit DPV ZIP Code when matched against the Address Management System (AMS) database.

    Destination delivery addresses would be compared against the AMS database for accuracy and the ability to be validated to the 11-digit DPV ZIP Code representing the finest depth of code for the delivery point (including secondary information such as the apartment or suite number). If the delivery address of a package or mailpiece does not result in an exact match, an Address Quality noncompliance indicator would be assigned for any of the following reasons:

    Invalid secondary address.

    No match between the address and the ZIP+4 Code.

    Missing street number.

    Invalid primary street number.

    In addition, for eVS customers, an Address Quality noncompliance indicator would be assigned when the address information is not received before the Arrival at Post Office (07) scan event and when the address information is not present at the time of mailing.

    In July 2018, the Address Quality threshold would remain at 89 percent. If mailpieces fail to meet the compliance threshold of 89 percent, customers would be assessed the IMpb Noncompliance Fee of $0.20 per piece for competitive parcels only. However, the Postal Service provides notice of its intent to collaborate with the mailing industry to increase the Address Quality threshold beginning on January 1, 2019, with mailpieces assessed on February 1, 2019.

    Manifest Quality (Shipping Services File)

    In accordance with this proposed rule, the Shipping Services File manifests must be received timely or each mailpiece on the file would be noncompliant. For customers who do not use eVS, the Shipping Services Files must be transmitted to the Postal Service prior to the physical entry of the mailing for acceptance. Customers who use eVS are required to transmit the Shipping Services File prior to the Arrival at Post Office (07) scan event unless the address information was provided via the Shipping Partner Event File prior to the Arrival at Post Office (07) scan event. If the address is provided in the Shipping Partner Event File before the Arrival at Post Office (07) scan event, the mailer must transmit the Shipping Services File prior to 23:59 on the date of mailing. Mailpieces that do not have a Shipping Services File record or have an untimely record would be noncompliant and receive a Manifest Quality validation noncompliance code.

    Manifest Files would have to pass the following four validation criteria:

    Entry Facility ZIP Code: The entry facility ZIP Code in the Shipping Services File must match physical scan event at location.

    Payment Account Number: The USPS account number from which the mailing will be paid must be valid.

    Method of Payment: The approved payment method must be valid (permit imprint, postage meter, PC Postage, OMAS, franked mail, and stamps) for the mail being entered.

    Post Office of Account: The 5-digit ZIP Code of the Post Office issuing the permit number, meter license, or precancelled stamp must be valid and agree with the information on the postage statement.

    Also, the Transaction ID (TID) is already required. However, when the TID is used in conjunction with the Payment Account Number, Method of Payment, and Post Office of Account, it enables the Postal Service to calculate IMpb compliance for each mailing at the postage-statement level for non-eVS customers. If any field is missing or inaccurate, a Manifest Quality IMpb Compliance Quality indicator would be assigned.

    In addition, in July 2018, the Manifest Quality threshold would be increased from 91 percent to 94 percent. If mailpieces fail to meet the compliance threshold of 94 percent, customers would be assessed the IMpb Noncompliance Fee of $0.20 per piece for competitive parcels only.

    Barcode Quality

    Barcode Quality is essential to create the digital trail that adds intelligence and enables business insight from parcels traveling through the Postal Service network, which leads to innovation and growth. Therefore, when manifests are processed by the Postal Service, Barcode Quality would continue to be measured under the following standards:

    IMpb(s) must pass the Uniqueness and Mailer Identification validations without errors or warnings.

    The IMpb must be unique for 120 days from the date of the first event record posted to the Postal Service's database.

    The IMpb must include a valid Mailer Identification that is properly registered in the Postal Service's Customer Registration Online Enrollment System.

    IMpb(s) that fail the Uniqueness and Mailer Identification validations will be assigned a Barcode Quality noncompliance code and such pieces would be counted against the threshold.

    In addition, in July 2018, the Barcode Quality threshold would be increased from 95 percent to 98 percent. If mailpieces fail to meet the compliance threshold of 98 percent, customers would be assessed the IMpb Noncompliance Fee of $0.20 per piece for competitive parcels only.

    Public Participation

    Although the Postal Service is exempt from the notice and comment requirements of the Administrative Procedure Act (5 U.S.C. 553(b), (c)) regarding proposed rulemaking by 39 U.S.C. 410(a), the Postal Service invites public comments on the following proposed revisions to Mailing Standards of the United States Postal Service, Domestic Mail Manual (DMM), incorporated by reference in the Code of Federal Regulations. See 39 CFR 111.1.

    List of Subjects in 39 CFR Part 111

    Administrative practice and procedure, Postal Service.

    For the reasons stated in the preamble, the Postal Service proposes to amend 39 CFR part 111 as follows:

    PART 111—[AMENDED] 1. The authority citation for 39 CFR part 111 continues to read as follows: Authority:

    5 U.S.C. 552(a); 13 U.S.C. 301-307; 18 U.S.C. 1692-1737; 39 U.S.C. 101, 401, 403, 404, 414, 416, 3001-3011, 3201-3219, 3403-3406, 3621, 3622, 3626, 3632, 3633, and 5001.

    2. Revise the following sections of Mailing Standards of the United States Postal Service, Domestic Mail Manual (DMM), as follows: Mailing Standards of the United States Postal Service, Domestic Mail Manual (DMM) 200 Commercial Letters, Flats, and Parcels Design Standards 204 Barcode Standards 2.0 Standards for Package and Extra Service Barcodes 2.1 Intelligent Mail Package Barcode 2.1.1 Definition

    [Amend 204.2.1.1 by revising the third and fifth sentences to read as follows:]

    * * * Intelligent Mail package barcodes must be used on all commercial parcels and on other mailpieces requesting extra services. * * * Electronic files must include a complete destination delivery address (which has sufficient quality to yield an 11-digit ZIP Code that matches the delivery point) and/or a delivery point validation (DPV) 11-digit Code for all records in the file. * * *

    2.1.3 Barcode Data Fields

    [Revise the final sentence of the introductory paragraph for 204.2.1.3 as follows:]

    * * * Detailed specifications are provided in Publication 199 and available on PostalPro at https://postalpro.usps.com:

    2.1.7 Electronic File

    [Amend 204.2.1.7 by revising the introductory paragraph and item d as follows:]

    All mailers generating Intelligent Mail package barcodes must transmit piece-level information to the USPS in an approved electronic file format (except for mailers generating barcodes for use on return services products, such as MRS). Specifications for electronic files are available in Publication 199 on PostalPro at https://postalpro.usps.com. Electronic files must include the following elements:

    d. Version 1.6 (or subsequent versions) of the electronic Shipping Services manifest files including each destination delivery address or ZIP+4 Code. Shipping Services File manifests or other approved electronic documentation, must include the destination delivery address (that has sufficient quality to yield an 11-digit ZIP Code that matches the delivery point) or delivery point validation (DPV) 11-digit ZIP Code for each record in the file.

    [Amend 204.2.1.8 by revising the title and contents as follows:]

    2.1.8 Compliance Quality Thresholds

    All mailers who enter commercial parcels must meet the established thresholds for the IMpb Compliance Quality Categories outlined in Exhibit 2.1.8 to avoid an IMpb Noncompliance Fee. For details, see Publication 199 available on PostalPro at http://postalpro.usps.com.

    Exhibit 2.1.8—IMpb Compliance Quality Thresholds Compliance categories Compliance codes Validations Compliance thresholds Address Quality: Checks for a timely address that validates to a unique 11 Digit DPV AQ Must include a full, valid destination delivery address that has sufficient quality to yield an 11-digit ZIP Code that matches the delivery point in the file as follows:
  • Valid secondary address information.
  • Match between address to ZIP+4 Code.
  • Includes street number.
  • Valid primary street number.
  • 89
    Customers using eVS must provide the address information prior to the Arrival at Unit (07) Event Scan and non-eVS customers at the time of mailing. Manifest Quality (Shipping Services File): Checks for a timely Manifest File that passes 4 critical validation criteria MQ Entry facility must match between scan and manifest.
  • Valid PO of Account ZIP Code (Where account is held for payment).
  • Valid Payment Account (Permit Number).
  • Valid Method of Payment (Permit, Federal Agency, PC Postage, Smart Meter, Other Meter, or Stamps).
  • 94
    Barcode Quality: Checks the Barcode in the manifest that passes 2 critical validations BQ Valid and Certified Mailer ID in the label that is in Program Registration/Online Enrollment.
  • IMpb must be unique for 120 days.
  • 98

    [Amend 204.2.1. by adding new 204.2.1.9 as follows:]

    2.1.9 Alternate Approval

    Labels not meeting IMpb specifications or other label element standards, but are still able to demonstrate acceptable functionality within USPS processes, may be allowed using an alternative approval process authorized by the Vice President, Enterprise Analytics (See DMM 608.8.1 for address).

    210 Commercial Mail Priority Mail Express 213 Prices and Eligibility 3.0 Basic Eligibility Standards for Priority Mail Express 3.2 IMpb Standards

    [Revise 213.3.2 by modifying the last two sentences as follows:]

    * * * Unless otherwise excepted, mailpieces not meeting the requirements for use of unique Intelligent Mail package barcodes or extra services barcodes as outlined in section 204.2.1.8 and Publication 199 will be assessed an IMpb noncompliance fee. For details, see the PostalPro website at https://postalpro.usps.com/node/782.

    220 Commercial Mail Priority Mail 223 Prices and Eligibility 3.0 Basic Eligibility Standards for Priority Mail 3.2 IMpb Standards

    [Revise 223.3.2 by modifying the last sentence as follows:]

    * * * Unless otherwise excepted, mailpieces not meeting the requirements for use of unique Intelligent Mail package barcodes or extra services barcodes as outlined in section 204.2.1.8 and Publication 199 will be assessed an IMpb noncompliance fee. For details, see the PostalPro website at https://postalpro.usps.com/node/782.

    250 Commercial Mail Parcel Select 253 Prices and Eligibility 3.0 Basic Eligibility Standards for Parcel Select Parcels 3.3 IMpb Standards

    [Revise 253.3.3 by modifying the last sentence as follows:]

    * * * Unless otherwise excepted, mailpieces not meeting the requirements for use of unique Intelligent Mail package barcodes or extra services barcodes as outlined in section 204.2.1.8 and Publication 199 will be assessed an IMpb noncompliance fee. For details, see the PostalPro website at https://postalpro.usps.com/node/782.

    280 Commercial Mail First-Class Package Service—Commercial 283 Prices and Eligibility 3.0 Basic Eligibility Standards for First-Class Package Service—Commercial 3.4 IMpb Standards

    [Revise 283.3.4 by modifying the last two sentences as follows:]

    * * * Unless otherwise excepted, mailpieces not meeting the requirements for use of unique Intelligent Mail package barcodes or extra services barcodes as outlined in section 204.2.1.8 and Publication 199 will be assessed an IMpb noncompliance fee. For details, see the PostalPro website at https://postalpro.usps.com/node/782.

    600 Basic Standards For All Mailing Services 608 Postal Information and Resources 8.0 USPS Contact Information 8.1 Postal Service

    [Revise 608.8.1 by adding Enterprise Analytics in alphabetic order as follows:]

    Enterprise Analytics, US Postal Service, 475 L'Enfant Plaza SW, Room 2100, Washington, DC 20260-2100.

    We will publish an appropriate amendment to 39 CFR part 111 and Publication 199 to reflect these changes, if our proposal is adopted.

    Ruth B. Stevenson, Attorney, Federal Compliance.
    [FR Doc. 2018-03947 Filed 2-26-18; 8:45 am] BILLING CODE 7710-12-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R09-OAR-2017-0620; FRL-9974-85—Region 9] Approval and Promulgation of Implementation Plans; California; California Mobile Source Regulations AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to approve a submittal by the State of California (“State”) to revise its State Implementation Plan (SIP). The submittal consists of State regulations establishing standards and other requirements relating to the control of emissions from certain new and in-use on-road and off-road vehicles and engines. The EPA is proposing to approve the SIP revision because the regulations meet the applicable requirements of the Clean Air Act. If finalized, approval of the regulations as part of the California SIP will make them federally enforceable.

    DATES:

    Any comments must arrive by March 29, 2018.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R09-OAR-2017-0620 at http://www.regulations.gov, or via email to John Ungvarsky, at [email protected] For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be removed or edited from Regulations.gov. For either manner of submission, 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, please contact the person identified in the FOR FURTHER INFORMATION CONTACT section. For 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:

    John Ungvarsky, EPA Region IX, (415) 972-3963, [email protected]

    SUPPLEMENTARY INFORMATION:

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

    Table of Contents I. Background II. The State's Submittal A. What regulations did the State submit? B. Are there other versions of these regulations? C. What is the purpose of the submitted regulations? D. What requirements do the regulations establish? III. EPA's Evaluation and Proposed Action A. How is the EPA evaluating the regulations? B. Do the State's regulations meet CAA SIP evaluation criteria? C. Proposed Action and Public Comment IV. Incorporation by Reference V. Statutory and Executive Order Reviews I. Background

    Under the Clean Air Act (CAA or “Act”), the EPA establishes national ambient air quality standards (NAAQS) to protect public health and welfare. The EPA has established NAAQS for certain pervasive air pollutants including ozone, carbon monoxide, nitrogen dioxide, sulfur dioxide, lead and particulate matter. Under section 110(a)(1) of the CAA, states must submit plans that provide for the implementation, maintenance, and enforcement of the NAAQS within each state. Such plans are referred to as SIPs, and revisions to those plans are referred to as SIP revisions. Section 110(a)(2) of the CAA sets forth the content requirements for SIPs. Among the various requirements, SIPs must include enforceable emission limitations and other control measures, means, or techniques as may be necessary or appropriate to meet the applicable requirements of the CAA. See CAA section 110(a)(2)(a).

    Emissions sources contributing to ambient air pollution levels can be divided into two basic categories: Stationary emissions sources and mobile emissions sources. As a general matter, the CAA assigns stationary source regulation and SIP development responsibilities to the states through title I of the Act and assigns mobile source regulation to the EPA through title II of the Act. In so doing, the CAA preempts various types of state regulation of mobile sources as set forth in section 209(a) (preemption of state emissions standards for new motor vehicles and engines), section 209(e) (preemption of state emissions standards for new and in-use off-road vehicles and engines),1 and section 211(c)(4)(A) (preemption of state fuel requirements for motor vehicle emission control, i.e., other than California's motor vehicle fuel requirements for motor vehicle emission control—see section 211(c)(4)(B)).

    1 EPA regulations refer to “nonroad” vehicles and engines whereas California Air Resources Board (CARB) regulations refer to “off-road” vehicles and engines. These terms refer to the same types of vehicles and engines, and for the purposes of this action, we will be using CARB's chosen term, “off-road,” to refer to such vehicles and engines.

    Under California law, the California Air Resources Board (CARB) is the State agency responsible for adopting and submitting the California SIP and SIP revisions. Over the years, CARB has submitted, and the EPA has approved, many county and regional air district rules regulating stationary source emissions as part of the California SIP. See generally 40 CFR 52.220(c). With respect to mobile sources not specifically preempted under the CAA, CARB has submitted, and the EPA has approved, certain specific State regulatory programs, such as the in-use, heavy-duty, diesel-fueled truck rule, various fuels regulations, and the vehicle inspection and maintenance program (I/M, also known as “smog check”). See, e.g., 77 FR 20308 (April 4, 2012) (in-use truck and bus regulation), 75 FR 26653 (May 12, 2010) (revisions to California on-road reformulated gasoline and diesel fuel regulations) and 75 FR 38023 (July 1, 2010) (revisions to California motor vehicle I/M program).

    CARB and the air districts rely on these county, regional and State stationary and mobile source regulations to meet various CAA requirements and include the corresponding emissions reductions in the various regional air quality plans developed to attain and maintain the NAAQS. The EPA generally allows California to take credit for the corresponding emissions reductions relied upon in the various regional air quality plans because, among other reasons, the regulations are approved as part of the SIP and are thereby federally enforceable as required under CAA section 110(a)(2)(A).

    With respect to mobile sources that are specifically preempted under the CAA, CARB must request a waiver (for motor vehicles) or authorization (for off-road engines and equipment) in order to enforce standards relating to the control of emissions and accompanying enforcement procedures for these types of mobile sources. See CAA sections 209(b) (new motor vehicles) and 209(e)(2) (most categories of new and in-use off-road vehicles). Over the years, CARB has submitted many requests for waiver or authorization of its standards and other requirements relating to the control of emissions from new on-road and new and in-use off-road vehicles and engines, and the EPA has granted many such requests. Once the EPA grants the request for waiver or authorization, CARB may enforce the corresponding mobile source regulations, and until 2015, the EPA had approved California air quality plans that take credit for emissions reductions from such regulations, notwithstanding the fact that California had not submitted these particular regulations as part of the California SIP.

    The EPA's longstanding practice of approving California plans that rely on emissions reductions from such “waiver measures,” notwithstanding the lack of approval as part of the SIP, was challenged in several petitions filed in the Ninth Circuit Court of Appeals. In a 2015 decision, the Ninth Circuit held in favor of the petitioners on this issue and concluded that CAA section 110(a)(2)(A) requires that all state and local control measures on which SIPs rely to attain the NAAQS be included in the SIP and thereby subject to enforcement by the EPA and members of the general public. See Committee for a Better Arvin v EPA, 786 F.3d 1169 (9th Cir. 2015).

    In response to the decision in Committee for a Better Arvin v. EPA, CARB submitted SIP revisions on August 14, 2015, December 7, 2016, and June 15, 2017, consisting of State mobile source regulations that establish standards and other requirements for the control of emissions from various new on-road and new and in-use off-road vehicles and engines for which the EPA has issued waivers or authorizations and that are relied upon by California regional plans to attain and maintain the NAAQS. The EPA took final action on CARB's August 14, 2015, and December 7, 2016 submittals at 81 FR 39424 (June 16, 2016) and 82 FR 14446 (March 21, 2017), respectively. In today's action, the EPA is proposing action on CARB's June 15, 2017 SIP revision submittal.

    II. The State's Submittal A. What regulations did the State submit?

    On June 15, 2017, CARB submitted a SIP revision that included a set of State mobile source regulations for which waivers or authorizations have been granted by the EPA under section 209 of the CAA since the previous related SIP revision submittal (i.e., since December 7, 2016). The SIP revision consists of the regulations themselves and documentation of the public process conducted by CARB in approving the regulations as part of the California SIP. Table 1 below presents the contents of the SIP revision by mobile source category and provides, for each such category, a listing of the relevant sections of the California Code of Regulations (CCR) that establish standards and other requirements for control of emissions from new or in-use vehicles or engines; the corresponding date of CARB's hearing date or Executive Officer action through which the regulations or amendments were adopted; and the notice of decision in which the EPA granted a waiver or authorization for the given set of regulations.

    Table 1—CARB SIP Revision Submittal Summary Source category Relevant sections of California Code of Regulations Date of relevant CARB hearing date or
  • Executive Officer
  • action
  • EPA notice of
  • decision
  • Commercial Harbor Craft (CHC) 17 CCR § 93118.5 (excluding (e)(1)), effective for State law purposes on July 20, 2011 June 24, 2010 82 FR 6500
  • (January 19, 2017).
  • In-Use Diesel-Fueled Transport Refrigeration Units (TRUs) 13 CCR §§ 2477, 2477.1 through 2477.21, effective for State law purposes on October 15, 2012 October 21, 2011 82 FR 6525
  • (January 19, 2017).
  • On-Road Heavy-Duty Diesel (HDD) Engines 13 CCR § 1956.8, effective for State law purposes on December 22, 2011, and the document incorporated by reference (see table 2 below) June 23, 2011 82 FR 4867
  • (January 17, 2017).
  • Off-Highway Recreational Vehicles (OHRVs) 13 CCR §§ 2416, 2417, 2418, 2419, 2419.1-2419.4, effective for State law purposes on April 1, 2015, and the document incorporated by reference (see table 2 below) July 25, 2013 82 FR 6540
  • (January 19, 2017).
  • The regulations submitted by CARB as part of the overall SIP revision and listed in Table 1 incorporate by reference documents that establish test procedures, among other things. Table 2 lists the incorporated documents included in the SIP submittal.

    Table 2—Documents Incorporated by Reference in CARB Regulations Listed in Table 1 and Submitted as Part of SIP Revision On-Road Heavy-Duty Diesel Engines: California Exhaust Emission Standards and Test Procedures for 2004 and Subsequent Model Heavy-Duty Diesel Engines and Vehicles, as last amended October 12, 2011. Off-Highway Recreational Vehicles and Engines: Test Procedure for Determining Evaporative Emissions from Off-Highway Recreational Vehicles (TP-933), dated November 5, 2014.

    We note that CARB has expressly excluded 17 CCR § 93118.5(e)(1) from consideration as part of the SIP revision on the grounds that it is not preempted and thus not included in the EPA's authorization of the amended CHC regulations. The excluded provision requires use of low sulfur fuel by all commercial harbor craft within certain California waters with certain exceptions. This same provision was excluded from the SIP submittal of the original CHC regulations, which the EPA approved at 81 FR 39424 (June 16, 2016).

    B. Are there other versions of these regulations?

    Historically, as noted above, CARB regulations subject to the section 209 waiver or authorization process were not submitted to the EPA as a revision to the California SIP. However, in the wake of the Ninth Circuit's decision in Committee for a Better Arvin v. EPA, on August 14, 2015, CARB submitted a large set of mobile source regulations that had been issued waivers or authorizations to the EPA as a SIP revision. The EPA took final approval action on this first set of regulations on June 16, 2016 (81 FR 39424). CARB's initial set of regulations included regulations establishing standards and other requirements relating to the control of emissions from new on-road vehicles and engines, including certain requirements related to on-road HDD vehicle and engines, from new and in-use off-road vehicles and engines, including certain requirements related to CHC, TRUs, and OHRVs. On December 7, 2016, CARB submitted a second set of mobile source regulations, i.e., those for which waivers or authorizations had been issued since August 2015, and the EPA approved them on March 21, 2017 (82 FR 14446). CARB's December 7, 2016 SIP revision submittal contained certain amended on-board diagnostic system regulations for new on-road vehicles and engines and certain amendments to the regulations affecting off-road large spark-ignition engines, small off-road engines, and off-road compression-ignition engines. CARB's June 15, 2017 SIP revision submittal represents the third set of mobile source regulations, which include regulations for which the EPA issued waivers or authorization since December 2016. This third set of regulations consists of amendments to the previously-approved regulations for on-road HDD engines, CHC, TRUs, and OHRVs.

    C. What is the purpose of the submitted regulations?

    California has experienced some of the most severe and most persistent air pollution problems in the country. Under the CAA, based on ambient data collected at numerous sites throughout the State, the EPA has designated areas within California as nonattainment areas for the ozone NAAQS and the particulate matter (PM) NAAQS, which includes both coarse and fine particulate (i.e., PM10 and PM2.5). See, generally, 40 CFR 81.305. Several areas in California that had been designated as nonattainment areas for the carbon monoxide NAAQS have been redesignated by the EPA as attainment areas because they have attained the standard and are subject to an approved maintenance plan demonstrating how they will maintain the carbon monoxide standard into the future.

    Mobile source emissions constitute a significant portion of overall emissions of carbon monoxide, volatile organic compounds (VOC), oxides of nitrogen (NOX), sulfur dioxide (SO2) and PM in the various air quality planning areas within California, and thus, the purpose of CARB's mobile source regulations is to reduce these emissions and thereby reduce ambient concentrations to attain and maintain the NAAQS throughout California.2 At elevated levels, ozone and PM harm human health and the environment by contributing to premature mortality, aggravation of respiratory and cardiovascular disease, decreased lung function, visibility impairment, and damage to vegetation and ecosystems.

    2 VOC and NOX are precursors responsible for the formation of ozone, and NOX and SO2 are precursors for PM2.5. SO2 belongs to a family of compounds referred to as sulfur oxides. PM2.5 precursors also include VOC and ammonia. See 40 CFR 51.1000.

    D. What requirements do the regulations establish?

    Table 3 below generally describes the amended regulations listed in table 1 above and summarizes some of the key emissions control requirements contained in the rules.

    Table 3—General Description of Requirements Established in the Mobile Source Regulations Included in the June 15, 2017 SIP Revision Source category Description of requirements in submitted regulations Commercial Harbor Craft (CHC) The 2011 amendments to the CHC regulations set forth a variety of in-use requirements, including extending the applicability of the CHC regulations to in-use crew and supply, barge and dredge vessels that are equipped with federal Tier 0 and Tier 1 propulsion and auxiliary marine engines that operate within 24 miles seaward of the California coastline; eliminate certain exemptions for CHC engines that had been registered in a different CARB program; allow EPA or CARB Tier 2 or higher tier certified off-road engines to be used as auxiliary or propulsion engines in both new and in-use CHC vessels; and clarify requirements and address certain issues that have arisen during CARB's implementation of the original CHC regulations. For more information, see 82 FR 6500 (January 19, 2017). In-Use Diesel-Fueled Transport Refrigeration Units (TRU) The 2011 amendments to the TRU regulations primarily provide owners of TRU engines with certain flexibilities; clarify recordkeeping requirements for certain types of TRU engines; establish requirements for businesses that arrange, hire, contract, or dispatch the transport of goods in TRU-equipped trucks, trailers, or containers; and address other issues that arose during the initial implementation of CARB's TRU regulation. For more information, see 82 FR 6525 (January 19, 2017). On-Road Heavy-Duty Diesel (HDD) Engines The 2011 amendments to the HDD in-use compliance regulations establish a new PM measurement allowance consistent with amendments by the EPA to the corresponding federal program; and clarify an exemption for certain armored cars and workover rigs. For more information, see 82 FR 4867 (January 17, 2017). Off-Highway Recreational Vehicles (OHRVs) The 2014 amendments to the OHRV regulations establish a new evaporative emission standard of 1.0 gram per day for the complete OHRV fuel system which includes running losses (evaporative emissions generated during vehicle operation), hot soak (evaporative emissions generated directly after vehicle operation), and diurnal losses (evaporative emissions generated during long term storage); establish diurnal and fuel system leakage standards and associated test procedures for 2018 and subsequent model year OHRVs; and establish certain durability test procedures and other test procedure provisions for preconditioning evaporative emission control systems and components, running loss and hot soak preconditioning tests, and test procedures for the 72-hour and steady-state diurnal tests. The California OHRV category encompasses a wide variety of vehicles, including off-road motorcycles, all-terrain vehicles, off-road sport and utility vehicles, sand cars, and golf carts. For more information, see 82 FR 6540 (January 19, 2017). III. EPA's Evaluation and Proposed Action A. How is the EPA evaluating the regulations?

    The EPA has evaluated the submitted regulations discussed above against the applicable procedural and substantive requirements of the CAA for SIPs and SIP revisions and has concluded that they meet all the applicable requirements. Generally, SIPs must include enforceable emission limitations and other control measures, means, or techniques, as well as schedules and timetables for compliance, as may be necessary to meet the requirements of the Act (see CAA section 110(a)(2)(A)); must provide necessary assurances that the state will have adequate personnel, funding, and authority under state law to carry out such SIP (and is not prohibited by any provision of federal or state law from carrying out such SIP) (see CAA section 110(a)(2)(E)); must be adopted by a state after reasonable notice and public hearing (see CAA section 110(l)); and must not interfere with any applicable requirement concerning attainment and reasonable further progress, or any other applicable requirement of the Act (see CAA section 110(l)).3

    3 CAA section 193, which prohibits any pre-1990 SIP control requirement relating to nonattainment pollutants in nonattainment areas from being modified unless the SIP is revised to insure equivalent or greater emission reductions of such air pollutants, does not apply to these regulations because they are new regulations or amend regulations previously approved in the California SIP in 2016, and thus, do not constitute an amendment to a pre-1990 SIP control requirement.

    B. Do the State's regulations meet CAA SIP evaluation criteria? 1. Did the state provide adequate public notification and comment periods?

    Under CAA section 110(l), SIP revisions must be adopted by the state, and the state must provide for reasonable public notice and hearing prior to adoption. In 40 CFR 51.102(d), we specify that reasonable public notice in this context refers to at least 30 days.

    All the submitted regulations have gone through extensive public comment processes including CARB's workshop and hearing processes prior to State adoption of each rule. Also, the EPA's waiver and authorization processes provide an opportunity for the public to submit written comment and to request public hearings to present information relevant to the EPA's consideration of CARB's request for waiver or authorization under section 209 of the CAA.

    In addition, on June 19, 2015, CARB published a notice of public hearing to consider adoption and submittal of certain adopted regulations as a revision to the California SIP including those submitted by CARB on June 15, 2017. CARB held the public hearing on July 23, 2015. No written comments were submitted to CARB on the proposed SIP revision, and no public comments were made at the public hearing. CARB adopted the SIP revision at the July 23, 2015 Board Hearing (see Board Resolution 15-40) and submitted the relevant mobile source regulations to the EPA along with evidence of the public process conducted by CARB in adopting the SIP revision.4 We conclude that CARB's June 15, 2017 SIP revision submittal meets the applicable procedural requirements for SIP revisions under the CAA section 110(l) and 40 CFR 51.102.

    4 In addition to CARB's June 15, 2017 submittal, prior submittals of relevant mobile source regulations were made on August 14, 2015 and December 7, 2016. The EPA took final actions on the 2015 and 2016 submittals on June 16, 2016 (81 FR 39424) and March 21, 2017 (82 FR 14446), respectively.

    2. Does the state have adequate legal authority to implement the regulations?

    CARB has been granted both general and specific authority under the California Health & Safety Code (H&SC) to adopt and implement these regulations. California H&SC sections 39600 (“Acts required”) and 39601 (“Adoption of regulation; Conformance to federal law”) confer on CARB the general authority and obligation to adopt regulations and measures necessary to execute CARB's powers and duties imposed by State law. California H&SC sections 43013(a) and 43018 provide broad authority to achieve the maximum feasible and cost-effective emission reductions from all mobile source categories. Regarding in-use motor vehicles, California H&SC sections 43600 and 43701(b), respectively, grant CARB authority to adopt emission standards and emission control equipment requirements.

    The mobile source regulations that are the subject of today's action were submitted by CARB under CAA section 209 with a request for waiver or authorization and were granted such waiver or authorization by the EPA. Thus, the regulations we are proposing to approve today are not preempted under the CAA. For additional information regarding California's motor vehicle emission standards, please see the EPA's “California Waivers and Authorizations” web page at URL address: http://www.epa.gov/otaq/cafr.htm. This website also lists relevant Federal Register notices that have been issued by the EPA is response to California waiver and authorization requests.

    In addition, the EPA is unaware of any non-CAA legal obstacle to CARB's enforcement of the regulations and thus we conclude that CARB has provided the necessary assurances that the State has adequate authority under State law to carry out the SIP revision (and is not prohibited by any provision of federal or State law from carrying out such SIP) and thereby meets the requirements of CAA section 110(a)(2)(E) with respect to legal authority.

    3. Are the regulations enforceable as required under CAA section 110(a)(2)?

    We have evaluated the enforceability of the amended mobile source regulations with respect to applicability and exemptions; standard of conduct and compliance dates; sunset provisions; discretionary provisions; and test methods, recordkeeping and reporting,5 and have concluded for the reasons given below that the amended regulations would be enforceable for the purposes of CAA section 110(a)(2).

    5 These concepts are discussed in detail in an EPA memorandum from J. Craig Potter, EPA Assistant Administrator for Air and Radiation, et al., titled “Review of State Implementation Plans and Revisions for Enforceability and Legal Sufficiency,” dated September 23, 1987.

    First, with respect to applicability, we find that the amended regulations are sufficiently clear as to which persons and which vehicles or engines are affected by the regulations. See, e.g., 13 CCR sections 2416(a) and (b) (applicability and exemption provisions for OHRV evaporative emissions requirements), 13 CCR sections 2477.2 and 2477.3 (applicability and exemption provisions for in-use diesel-fueled TRUs), and 17 CCR sections 93118.5(b) and (c) (applicability and exemption provisions for commercial harbor craft).

    Second, we find that the amended regulations are sufficiently specific so that the persons affected by the regulations are on notice as to what the requirements and related compliance dates are. For instance, see the evaporative emission standards and test procedures set forth for OHRVs in 13 CCR section 2418, the in-use compliance dates for TRUs in 13 CCR section 2477.5(b), and the engine emission requirements in 17 CCR sections 93118.5(e)(2)-(6).

    Third, none of the amended regulations contain sunset provisions that automatically repeal the emissions limits by a given date or upon the occurrence of a particular event, such as the change in the designation of an area from nonattainment to attainment.

    Fourth, a number of the amended regulations contain provisions that allow for discretion on the part of CARB's Executive Officer. Such “director's discretion” provisions can undermine enforceability of a SIP regulation, and thus prevent full approval by the EPA. However, in the instances of “director's discretion” in the amended regulations, the discretion that can be exercised by the CARB Executive Officer is reasonably limited under the terms of the regulations. For instance, in 17 CCR 93118.5(e)(6)(E), the Executive Officer may grant a time-limited extension to the compliance date that would otherwise apply only for specific reasons and under limited circumstances as set forth in the regulation. With such constraints on discretion, the “director's discretion” contained in the amended regulations would not significantly undermine enforceability of the rules by citizens or the EPA.

    Lastly, the amended regulations identify appropriate test methods and include adequate recordkeeping and reporting requirements sufficient to ensure compliance with the applicable requirements.

    4. Do the regulations interfere with reasonable further progress and attainment or any other applicable requirement of the Act?

    All the State's reasonable further progress (RFP), attainment, and maintenance plans rely to some extent on the emission reductions from CARB's mobile source program, including the emissions standards and other requirements for which the EPA has issued waivers or authorizations. CARB's mobile source program is reflected in the emissions estimates for mobile sources that are included in the emissions inventories that form the quantitative basis for the RFP, attainment, and maintenance demonstrations. Based on CARB estimates, the amended regulations evaluated herein would, considered together, reduce VOC, NOX, and PM emissions by approximately 1,220 tons per year (tpy), 270 tpy, and 20 tpy, respectively, on a statewide basis in year 2023.6 As such, the amended regulations would support the various RFP, attainment, and maintenance plans, and would not interfere with such requirements for the purposes of CAA section 110(l).

    6 The emissions estimates are based on emissions presented in the Initial Statement of Reasons (ISOR) published by CARB for each of the four individual regulatory actions considered herein. The relevant ISORs are included in the docket for this rulemaking.

    5. Will the state have adequate personnel and funding for the regulations?

    In its SIP revision submittal dated August 14, 2015, CARB refers to the annual approval by the California Legislature of funding and staff resources for carrying out CAA-related responsibilities and notes that a large portion of CARB's budget has gone toward meeting CAA mandates.7 CARB indicates that a majority of CARB's funding comes from dedicated fees collected from regulated emission sources and other sources such as vehicle registration fees and vehicles license plate fees and that these funds can only be used for air pollution control activities. Id. For the 2014-2015 budget cycle, CARB had over 700 positions and almost $500 million dedicated to the mobile source program developing and enforcing regulations. Id. Given the longstanding nature of CARB's mobile source program, and its documented effectiveness at achieving significant reductions from mobile sources, we find that CARB has provided necessary assurances that the State has adequate personnel and funding to carry out the amended mobile source regulations submitted for approval on June 15, 2017.

    7 Letter from Richard W. Corey, Executive Officer, CARB, to Jared Blumenfeld, Regional Administrator, EPA Region IX, August 14, 2015.

    6. EPA's Evaluation Conclusion

    Based on the above discussion, we believe these regulations are consistent with the relevant CAA requirements and with relevant EPA policies and guidance.

    C. Proposed Action and Public Comment

    Under section 110(k)(3) of the CAA, and for the reasons given above, we are proposing to approve a SIP revision submitted by CARB on June 15, 2017, that includes certain sections of titles 13 and 17 of the California Code of Regulations that establish standards and other requirements relating to the control of emissions from certain new and in-use on-road and off-road vehicles and engines. We are proposing to approve these regulations as part of the California SIP because we believe they fulfill all relevant CAA requirements. We will accept comments from the public on this proposal until March 29, 2018. If we finalize this action as proposed, the submitted regulations will be incorporated into the federally enforceable SIP for the State of California.

    IV. Incorporation by Reference

    In this action, the EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference of certain sections of titles 13 and 17 of the California Code of Regulations that establish standards and other requirements relating to the control of emissions from certain new on-road and new and in-use off-road vehicles and engines, as described in section II of this preamble. The EPA has made, and will continue to make, these documents generally available electronically through www.regulations.gov and in hard copy at the appropriate EPA office (see the ADDRESSES section of this preamble for more information).

    V. Statutory and Executive Order Reviews

    Under the Clean Air Act, 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 Clean Air Act. Accordingly, this proposed action merely proposes to approve state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed 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 Clean Air Act; and

    • Does not provide the EPA with the discretionary authority to address disproportionate human health or environmental effects with practical, appropriate, 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 proposed 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).

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Volatile organic compounds.

    Authority:

    42 U.S.C. 7401 et seq.

    Dated: February 15, 2018. Alexis Strauss, Acting Regional Administrator, Region IX.
    [FR Doc. 2018-03992 Filed 2-26-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R06-OAR-2017-0077; FRL-9974-50—Region 6] Approval and Promulgation of Implementation Plans; Texas; Approval of Texas Motor Vehicle Rule Revisions AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    Pursuant to the Federal Clean Air Act (CAA or the Act), the Environmental Protection Agency (EPA) is proposing to approve revisions submitted by the State of Texas that affect the Texas State Implementation Plan (SIP) concerning Texas' motor vehicle air pollution rules and retail gasoline dispensing labeling requirements for El Paso. The revisions are non-substantive in nature and do not affect implementation of federal requirements.

    DATES:

    Written comments should be received on or before March 29, 2018.

    ADDRESSES:

    Submit your comments, identified by EPA-R06-OAR-2017-0077, at http://www.regulations.gov or via email to [email protected] For additional information on how to submit comments see the detailed instructions in the ADDRESSES section of the direct final rule located in the rules section of this Federal Register.

    FOR FURTHER INFORMATION CONTACT:

    Mr. John Walser, (214) 665-7128, [email protected]

    SUPPLEMENTARY INFORMATION:

    In the final rules section of this Federal Register, the EPA is approving the State's SIP submittal as a direct rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. A detailed rationale for the approval is set forth in the direct final rule. If no relevant adverse comments are received in response to this action no further activity is contemplated. If the EPA receives relevant adverse comments, the direct final rule will be withdrawn and all public comments received will be addressed in a subsequent final rule based on this proposed rule. The EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time.

    For additional information, see the direct final rule which is located in the rules section of this Federal Register.

    Dated: February 22, 2018. Anne Idsal, Regional Administrator, Region 6.
    [FR Doc. 2018-03973 Filed 2-26-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2017-0006; FRL-9972-17] Receipt of Several Pesticide Petitions Filed for Residues of Pesticide Chemicals in or on Various Commodities AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Notice of filing of petitions and request for comment.

    SUMMARY:

    This document announces the Agency's receipt of several initial filings of pesticide petitions requesting the establishment or modification of regulations for residues of pesticide chemicals in or on various commodities.

    DATES:

    Comments must be received on or before March 29, 2018.

    ADDRESSES:

    Submit your comments, identified by docket identification (ID) number and the pesticide petition number (PP) of interest as shown in the body of this document, 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 Confidential Business Information (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.

    FOR FURTHER INFORMATION CONTACT:

    Michael Goodis, Registration Division (7505P), main telephone number: (703) 305-7090; email address: [email protected], The mailing address for each contact person is: Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001.

    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).

    If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT for the division listed at the end of the pesticide petition summary of interest.

    B. What should I consider as I prepare my comments for EPA?

    1. Submitting CBI. Do not submit this information to EPA through regulations.gov or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

    2. Tips for preparing your comments. When preparing and submitting your comments, see the commenting tips at http://www.epa.gov/dockets/comments.html.

    3. Environmental justice. EPA seeks to achieve environmental justice, the fair treatment and meaningful involvement of any group, including minority and/or low-income populations, in the development, implementation, and enforcement of environmental laws, regulations, and policies. To help address potential environmental justice issues, the Agency seeks information on any groups or segments of the population who, as a result of their location, cultural practices, or other factors, may have atypical or disproportionately high and adverse human health impacts or environmental effects from exposure to the pesticides discussed in this document, compared to the general population.

    II. What action is the Agency taking?

    EPA is announcing its receipt of several pesticide petitions filed under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, requesting the establishment or modification of regulations in 40 CFR part 180 for residues of pesticide chemicals in or on various food commodities. The Agency is taking public comment on the requests before responding to the petitioners. EPA is not proposing any particular action at this time. EPA has determined that the pesticide petitions described in this document contain the data or information prescribed in FFDCA section 408(d)(2), 21 U.S.C. 346a(d)(2); however, EPA has not fully evaluated the sufficiency of the submitted data at this time or whether the data support granting of the pesticide petitions. After considering the public comments, EPA intends to evaluate whether and what action may be warranted. Additional data may be needed before EPA can make a final determination on these pesticide petitions.

    Pursuant to 40 CFR 180.7(f), a summary of each of the petitions that are the subject of this document, prepared by the petitioner, is included in a docket EPA has created for each rulemaking. The docket for each of the petitions is available at http://www.regulations.gov.

    As specified in FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), EPA is publishing notice of the petition so that the public has an opportunity to comment on this request for the establishment or modification of regulations for residues of pesticides in or on food commodities. Further information on the petition may be obtained through the petition summary referenced in this unit.

    Amended Tolerances

    1. PP 7F8552. (EPA-HQ-OPP-2017-0234 Syngenta Crop Protection, LLC, P.O. Box 18300, Greensboro, NC 27419-18300, requests to amend the tolerance in 40 CFR part 180.565 for residues of the insecticide, thiamethoxam, {3-[(2-chloro-5-thiazolyl)methyl]tetrahydro-5-methyl-N-nitro-4H-1,3,5-oxadiazin-4-imine} (CAS Reg. No. 153719-23-4) and its metabolite[N-(2-chloro-thiazol-5-ylmethyl)-N′-methyl-N′-nitro-guanidine on the grain, cereal, group 15, except barley at 0.02 parts per million (ppm) by establishing individual tolerances in or on buckwheat, grain at 0.9 ppm; corn, field grain at 0.02 ppm; oat, grain at 0.9 ppm; rice, grain at 6 ppm; rice, straw at 2 ppm; rye, grain at 0.9 ppm; sorghum, grain at 0.6; sorghum, grain forage at 0.9 ppm; sorghum, sweet, stalk at 0.7 ppm; triticale grain at 0.9 ppm; wheat, bran at 0.5 ppm; wheat, germ at 0.5 ppm; wheat, grain at 0.5 ppm. In addition, Syngenta requests to amend existing tolerances in 40 CFR 180.565 for residues of the insecticide, thiamethoxam, {3-[(2-chloro-5 thiazolyl)methyl]tetrahydro-5-methyl-N-nitro-4H-1,3,5-oxadiazin-4-imine} (CAS Reg. No. 153719-23-4) and its metabolite[N-(2-chloro-thiazol-5-ylmethyl)-N′-methyl-N′-nitro-guanidine as follows: Alfalfa, forage from 0.05 to 10 ppm; alfalfa, hay from 0.12 to 8 ppm; aspirated grain fractions from 2.0 to 2.5 ppm; barley, hay from 0.40 to 1.5 ppm; barley, grain from 0.4 to 0.9 ppm; barley, straw from 0.40 to 3 ppm; corn, field, forage from 0.10 to 0.6 ppm; corn, field, stover from 0.05 to 1.0 ppm; corn, pop, forage from 0.10 to 0.6 ppm; corn, pop, stover from 0.05 to 1.0 ppm; corn, sweet forage from 0.10 to 5 ppm; corn, sweet, kernel plus cob with husks removed from 0.02 to 0.03 ppm; corn, sweet, stover from 0.05 to 4 ppm; potato from 0.25 to 0.15 ppm; sorghum, grain, stover from 0.02 to 1.5 ppm; wheat, forage from 0.50 to 3 ppm; wheat, hay from 0.02 to 8 ppm; and wheat, straw from 0.02 to 6 ppm. The liquid chromatography with either UV or MS detections is used to measure and evaluate the chemical. Contact: RD.

    2. PP 7F8633. (EPA-HQ-OPP-2017-0530). Bayer CropScience LP2, T.W. Alexander Dr., Research Triangle Park, NC 27709, requests to amend the tolerance in 40 CFR 180.555 for residues of the fungicide, trifloxystrobin, in or on grain, aspirated fractions at 15 ppm. Either gas chromatography with nitrogen-phosphorus detection, or liquid chromatography/mass spectrometry/mass spectrometry (LC/MS/MS) are used to measure and evaluate the chemical trifloxystrobin and the free form of its acid metabolite CGA-321113 ((E,E)-methoxyimino-[2-[1-(3-trifluoromethyl-phenyl)-ethylideneaminooxymethyl]-phenyl]acetic acid). Contact: RD.

    New Tolerance Exemptions for Inerts (Except PIPS)

    1. PP IN-11023. (EPA-HQ-OPP 2017-0666) Lewis & Harrison, LLC, 122 C Street NW, Suite 505, Washington, DC 20001, on behalf of BASF Corporation, 100 Park Avenue, Florham Park, NJ 07932 requests to establish an exemption from the requirement of a tolerance for residues of poly(oxy-1,2-ethanediyl), α-(1-oxoalkyl)-ω-methoxy-, where the alkyl chain contains a minimum of six and a maximum of 18 carbons and the oxyethylene content is 3-13 moles (CAS Reg. Nos. 53100-65-5, 194289-64-0- 34398-00-0, 9006-27-3, 32761-35-6, 53467-81-5, 518299-31-5, 34397-99-4) when used as a stabilizer and solubilizing agent in pesticide formulations applied to growing crops or raw agricultural commodities after harvest at a maximum concentration in pesticide formulation of 25% by weight. The petitioner believes no analytical method is needed because it is not required for the establishment of a tolerance exemption for inert ingredients. Contact: RD.

    2. PP IN-11059. (EPA-HQ-OPP-2017-0574) Nutri Ag, Inc., 4740 N Interstate 35 E, Waxahachie, TX 75165 requests to establish an exemption from the requirement of a tolerance for residues of zinc oxide (CAS Reg. No. 1314-13-2) when used as an inert ingredient (stabilizer) in pesticide formulations applied to growing crops and raw agricultural commodities after harvest under 40 CFR 180.910. The petitioner believes no analytical method is needed because it is not required for an exemption from the requirement of a tolerance. Contact: RD.

    New Tolerances for Non-Inerts

    1. PP 7E8584. (EPA-HQ-OPP-2017-0505). Bayer CropScience, 2 T.W. Alexander Drive, Research Triangle Park, NC 27709, requests to establish a tolerance in 40 CFR part 180 for residues of spiromesifen; 2-oxo-3-(2,4,6-trimethylphenyl)-1-oxaspiro[4.4]non-3-en-4-yl 3,3-dimethylbutanoate, and its enol metabolite (4-hydroxy-3-(2,4,6-trimethylphenyl)-1-oxaspiro[4.4]non-3-en-2-one calculated as the stoichiometric equivalent of spiromesifen in or on the raw agricultural commodities Coffee bean, green at 0.20 parts per million (ppm); Coffee bean, roasted at 0.20 ppm; and Coffee, instant at 0.20 ppm. Spiromesifen residues are quantified in raw agricultural commodities by high pressure liquid chromatography/triple stage quadrupole mass spectrometry (LC/MS/MS) using the stable isotopically labeled analytes as internal standards. Contact: RD.

    2. PP 6F8533. (EPA-HQ-OPP-2017-0235). Monsanto Company, 1300 I Street NW, Suite 450 East, Washington, DC 20005, requests to establish a tolerance in 40 CFR part 180 for residues of the herbicide acetochlor in or on Alfalfa, forage at 8 ppm, Alfalfa, hay at 20 ppm, Cattle, fat at 0.02 ppm, Cattle, kidney at 0.03 ppm, Cattle, meat at 0.02 ppm, Cattle, meat byproducts, except kidney at 0.02 ppm, Goat, fat at 0.02 ppm, Goat, kidney at 0.03 ppm, Goat, meat at 0.02 ppm, Goat, meat byproducts, except kidney at 0.02 ppm, Hog, kidney at 0.02 ppm, Horse, fat at 0.02 ppm, Horse, kidney at 0.03 ppm, Horse, meat at 0.02 ppm, Horse, meat byproducts, except kidney at 0.02 ppm, Milk at 0.02 ppm, Sheep, fat at 0.02 ppm, Sheep, kidney at 0.03 ppm, Sheep, meat at 0.02 ppm, Sheep, meat byproducts, except kidney at 0.02 ppm. The HPLC-OCED is used to measure and evaluate the chemical acetochlor. Contact: RD.

    3. PP 7F8552. (EPA-HQ-OPP-2017-0234). Syngenta Crop Protection, LLC, P.O. Box 18300, Greensboro, NC 27419-18300, requests to establish a tolerance in 40 CFR part 180 for residues of the insecticide, thiamethoxam, {3-[(2-chloro-5-thiazolyl)methyl]tetrahydro-5-methyl-N-nitro-4H-1,3,5-oxadiazin-4-imine} (CAS Reg. No. 153719-23-4) and its metabolite[N-(2-chloro-thiazol-5-ylmethyl)-N′-methyl-N′-nitro-guanidine, in or on Alfalfa, seed at 1 ppm; and sugarcane at 0.01 ppm. Contact: RD.

    4. PP 7F8595. (EPA-HQ-OPP-2017-0530). Bayer CropScience LP2, T.W. Alexander Dr., Research Triangle Park, NC 27709, requests to establish a tolerance in 40 CFR part 180 for residues of the fungicide, trifloxystrobin, in or on Flax, seed at 0.4 ppm. Either gas chromatography with nitrogen-phosphorus detection, or liquid chromatography/mass spectrometry/mass spectrometry (LC/MS/MS) are used to measure and evaluate the chemical trifloxystrobin and the free form of its acid metabolite CGA-321113 ((E,E)-methoxyimino-[2-[1-(3-trifluoromethyl-phenyl)-ethylideneaminooxymethyl]-phenyl]acetic acid). Contact: RD.

    5. PP 7F8596. (EPA-HQ-OPP-2017-0531). Bayer CropScience LP2, T.W. Alexander Dr., Research Triangle Park, NC 27709, requests to establish a tolerance in 40 CFR part 180 for residues of the fungicide, prothioconazole, in or on Crop Subgroup 20A (Rapeseed Subgroup) at 0.15 ppm. The LC/MS/MS analytical method is used to measure and evaluate the chemical prothioconazole, 2-[2-(1-chlorocylcopropyl)-3-(2-chlorophenyl)-2-hydroxypropyl]-1,2-dihydro-3H-1,2,4-triazole-3-thion, including its metabolites and degradates, in or on the commodities with tolerances. Compliance with the tolerance levels specified is to be determined by measuring only prothioconazole and its metabolite prothioconazole-desthio, or α-(1-chlorocyclopropyl)-α-[(2-chlorophenyl)methyl]-1H-1,2,4-triazole-1-ethanol, calculated as parent in or on the commodity. Contact: RD.

    6. PP 7F8614. EPA-HQ-OPP-2017-0572. Makhteshim Agan of North America (d/b/a ADAMA, 3120 Highlands Blvd., Suite 100, Raleigh, NC 27604), requests to establish a tolerance in 40 CFR part 180 for residues of the nematicide, fluensulfone, including its metabolites and degradates, in or on the following commodities: Citrus dried pulp at 0.4 ppm; Crop Group 10-10, citrus fruit at 0.15 ppm; peanut at 0.15 ppm; peanut, hay at 8.0 ppm; and peanut, meal at 0.30 ppm. The LC-MS/MS is used to measure and evaluate the metabolite Butene Sulfonic Acid (M-3627). Contact: RD.

    7. PP 7F8615. (EPA-HQ-OPP-2017-0665). Gowan Company, P.O. Box 5569, Yuma, AZ 85366, requests to establish a tolerance in 40 CFR part 180 for residues of the fungicide, zoxamide, in or on crop subgroup 8-10B (pepper/eggplant subgroup) at 0.9 ppm. The Rohm and Haas Company Method Number 34-99-85 is used to measure and evaluate the chemical zoxamide, 3, 5-dichloro-N-(3-chloro-1-ethyl-1-methyl-2-oxopropyl)-4-methylbenzamide. Contact: RD.

    8. PP 7F8624. (EPA-HQ-OPP-2017-0616). BASF Corporation, 26 Davis Drive, Research Triangle Park, NC 27709, requests to establish a tolerance in 40 CFR part 180 for residues of the fungicide, metrafenone, in or on mushrooms at 0.5 ppm. The LC/MS/MS is used to measure and evaluate the chemical metrafenone (3-bromo-6-methoxy-2-methylphenyl)(2,3,4-trimethoxy-6-methylphenyl)methanone. Contact: RD.

    Authority:

    21 U.S.C. 346a.

    Dated: January 16, 2018. Delores Barber, Director, Information Technology and Resources Management Division, Office of Pesticide Programs.
    [FR Doc. 2018-03989 Filed 2-26-18; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Parts 223 and 224 [Docket No. 171128999-8169-01] RIN 0648-XF872 Endangered and Threatened Wildlife; 90-Day Finding on a Petition To List Chinook Salmon in the Upper Klamath-Trinity Rivers Basin as Threatened or Endangered Under the Endangered Species Act AGENCY:

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

    ACTION:

    90-Day petition finding, request for information, and initiation of status review.

    SUMMARY:

    We, NMFS, announce a 90-day finding on a petition to list as threatened or endangered the Upper Klamath-Trinity Rivers (UKTR) Chinook salmon Evolutionarily Significant Unit (ESU) (Oncorhynchus tshawytscha) or, alternatively, create a new ESU to describe Klamath Spring Chinook salmon and list the new ESU as threatened or endangered under the Endangered Species Act (ESA). The petition also requests that we designate critical habitat concurrently with the listing. We find that the petition presents substantial scientific information indicating the petitioned actions may be warranted. We will conduct a status review of the Chinook salmon in the UKTR Basin to determine if the petitioned actions are warranted. To ensure that the status review is comprehensive, we are soliciting scientific and commercial information pertaining to this species from any interested party.

    DATES:

    Scientific and commercial information pertinent to the petitioned action must be received by April 30, 2018.

    ADDRESSES:

    You may submit comments on this document, identified by “Upper Klamath-Trinity Rivers Chinook Petition (NOAA-NMFS-2018-0002),” by either of the following methods:

    Federal eRulemaking Portal: Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2018-0002, click the “Comment Now” icon, complete the required fields, and enter or attach your comments.

    Mail or hand-delivery: Protected Resources Division, West Coast Region, NMFS, 1201 NE Lloyd Blvd., Suite #1100, Portland, OR 97232. Attn: Gary Rule.

    Instructions: 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 by NMFS. 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.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. We will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous).

    FOR FURTHER INFORMATION CONTACT:

    Electronic copies of the petition and other materials are available on the NMFS West Coast Region website at www.westcoast.fisheries.noaa.gov. Please direct other inquiries to Gary Rule, NMFS West Coast Region at [email protected], (503) 230-5424; or Maggie Miller, NMFS Office of Protected Resources at [email protected], (301) 427-8457.

    SUPPLEMENTARY INFORMATION: Background

    On November 2, 2017, the Secretary of Commerce received a petition from the Karuk Tribe and Salmon River Restoration Council (hereafter, the Petitioners) to list as threatened or endangered the UKTR Chinook salmon ESU or, alternatively, create and list a new ESU to describe Klamath Spring Chinook salmon. In their petition, the Petitioners used various phrases as well as “Klamath Spring Chinook” to describe the area in which they are requesting that we create a new ESU for spring-run Chinook salmon. Because their request is generally made in reference to the spring-run Chinook salmon component of the UKTR ESU of Chinook salmon, we will use the description of the currently defined ESU to describe the area in which the Petitioners are requesting that we create a new spring-run Chinook salmon ESU. We will hereinafter refer to that area as the UKTR Basin. We described all Klamath River Basin populations of Chinook salmon from the Trinity River and Klamath River upstream from the confluence of the Trinity River as the UKTR ESU, which includes both spring-run and fall-run fish (63 FR 11482; March 9, 1998). The Petitioners also request designation of critical habitat concurrently with the listing. Copies of the petition are available as described above (see FOR FURTHER INFORMATION CONTACT).

    ESA Statutory, Regulatory, Policy Provisions, and Evaluation Framework

    Section 4(b)(3)(A) of the ESA of 1973, as amended (16 U.S.C. 1531 et seq.), requires, to the maximum extent practicable, that within 90 days of receipt of a petition to list a species as threatened or endangered, the Secretary of Commerce make a finding on whether that petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted, and to promptly publish such finding in the Federal Register (16 U.S.C. 1533(b)(3)(A)). When it is found that substantial scientific or commercial information in a petition indicates the petitioned action may be warranted (a “positive 90-day finding”), we are required to promptly commence a review of the status of the species concerned during which we will conduct a comprehensive review of the best available scientific and commercial information. In such cases, we conclude the review with a finding as to whether, in fact, the petitioned action is warranted within 12 months of receipt of the petition. Because the finding at the 12-month stage is based on a more thorough review of the available information, as compared to the narrow scope of review at the 90-day stage, a “may be warranted” finding does not prejudge the outcome of the status review.

    Under the ESA, a listing determination may address a species, which is defined to also include subspecies and, for any vertebrate species, any distinct population segment (DPS) that interbreeds when mature (16 U.S.C. 1532(16)). In 1991, we issued the Policy on Applying the Definition of Species Under the Endangered Species Act to Pacific Salmon (ESU Policy; 56 FR 58612; November 20, 1991), which explains that a Pacific salmon population will be considered a DPS, and hence a “species” under the ESA, if it represents an “evolutionarily significant unit” of the biological species. The two criteria for delineating an ESU are: (1) It is substantially reproductively isolated from other conspecific populations, and (2) it represents an important component in the evolutionary legacy of the species. The ESU Policy was used to define the UKTR Chinook salmon ESU in 1998 (63 FR 11482; March 9, 1998), and we use it exclusively for defining distinct population segments of Pacific salmon. A joint NMFS-U.S. Fish and Wildlife Service (USFWS) (jointly, “the Services”) policy clarifies the Services' interpretation of the phrase “distinct population segment” for the purposes of listing, delisting, and reclassifying a species under the ESA (DPS Policy; 61 FR 4722; February 7, 1996). In announcing this policy, the Services indicated that the ESU Policy for Pacific salmon was consistent with the DPS Policy and that NMFS would continue to use the ESU Policy for Pacific salmon.

    A species, subspecies, DPS, or ESU is “endangered” if it is in danger of extinction throughout all or a significant portion of its range, and “threatened” if it is likely to become endangered within the foreseeable future throughout all or a significant portion of its range (ESA sections 3(6) and 3(20), respectively, 16 U.S.C. 1532(6) and (20)). Pursuant to the ESA and our implementing regulations, we determine whether species are threatened or endangered based on any one or a combination of the following five ESA section 4(a)(1) factors: The present or threatened destruction, modification, or curtailment of habitat or range; overutilization for commercial, recreational, scientific, or educational purposes; disease or predation; inadequacy of existing regulatory mechanisms to address identified threats; or any other natural or manmade factors affecting the species' existence (16 U.S.C. 1533(a)(1), 50 CFR 424.11(c)).

    ESA-implementing regulations issued jointly by NMFS and USFWS (50 CFR 424.14(h)(1)(i)) define substantial scientific or commercial information in the context of reviewing a petition to list, delist, or reclassify a species as credible scientific or commercial information in support of the petition's claims such that a reasonable person conducting an impartial scientific review would conclude that the action proposed in the petition may be warranted. Conclusions drawn in the petition without the support of credible scientific or commercial information will not be considered “substantial information.” In reaching the initial (90-day) finding on the petition, we will consider the information described in sections 50 CFR 424.14(c), (d), and (g) (if applicable).

    Our determination as to whether the petition provides substantial scientific or commercial information indicating that the petitioned action may be warranted will depend in part on the degree to which the petition includes the following types of information: (1) Information on current population status and trends and estimates of current population sizes and distributions, both in captivity and the wild, if available; (2) identification of the factors under section 4(a)(1) of the ESA that may affect the species and where these factors are acting upon the species; (3) whether and to what extent any or all of the factors alone or in combination identified in section 4(a)(1) of the ESA may cause the species to be an endangered species or threatened species (i.e., the species is currently in danger of extinction or is likely to become so within the foreseeable future), and, if so, how high in magnitude and how imminent the threats to the species and its habitat are; (4) information on adequacy of regulatory protections and effectiveness of conservation activities by States as well as other parties, that have been initiated or that are ongoing, that may protect the species or its habitat; and (5) a complete, balanced representation of the relevant facts, including information that may contradict claims in the petition. See 50 CFR 424.14(d).

    If the petitioner provides supplemental information before the initial finding is made and states that it is part of the petition, the new information, along with the previously submitted information, is treated as a new petition that supersedes the original petition, and the statutory timeframes will begin when such supplemental information is received. See 50 CFR 424.14(g).

    We may also consider information readily available at the time the determination is made. We are not required to consider any supporting materials cited by the petitioner if the petitioner does not provide electronic or hard copies, to the extent permitted by U.S. copyright law, or appropriate excerpts or quotations from those materials (e.g., publications, maps, reports, letters from authorities). See 50 CFR 424.14(c)(6).

    The “substantial scientific or commercial information” standard must be applied in light of any prior reviews or findings we have made on the listing status of the species that is the subject of the petition. Where we have already conducted a finding on, or review of, the listing status of that species (whether in response to a petition or on our own initiative), we will evaluate any petition received thereafter seeking to list, delist, or reclassify that species to determine whether a reasonable person conducting an impartial scientific review would conclude that the action proposed in the petition may be warranted despite the previous review or finding. Where the prior review resulted in a final agency action—such as a final listing determination, 90-day not-substantial finding, or 12-month not-warranted finding—a petitioned action will generally not be considered to present substantial scientific and commercial information indicating that the action may be warranted unless the petition provides new information or analyses not previously considered.

    At the 90-day finding stage, we do not conduct additional research, and we do not solicit information from parties outside the agency to help us in evaluating the petition. We will accept the petitioners' sources and characterizations of the information presented if they appear to be based on accepted scientific principles, unless we have specific information in our files that indicates the petition's information is incorrect, unreliable, obsolete, or otherwise irrelevant to the requested action. Information that is susceptible to more than one interpretation or that is contradicted by other available information will not be dismissed at the 90-day finding stage, so long as it is reliable and a reasonable person conducting an impartial scientific review would conclude it supports the petitioners' assertions. In other words, conclusive information indicating the species may meet the ESA's requirements for listing is not required to make a positive 90-day finding. We will not conclude that a lack of specific information alone necessitates a negative 90-day finding if a reasonable person conducting an impartial scientific review would conclude that the unknown information itself suggests the species may be at risk of extinction presently or within the foreseeable future.

    To make a 90-day finding on a petition to list a species, we evaluate whether the petition presents substantial scientific or commercial information indicating the subject species may be either threatened or endangered, as defined by the ESA. First, we evaluate whether the information presented in the petition, in light of the information readily available in our files, indicates that the petitioned entity constitutes a “species” eligible for listing under the ESA. Next, we evaluate whether the information indicates that the species faces an extinction risk such that listing, delisting, or reclassification may be warranted; this may be indicated in information expressly discussing the species' status and trends, or in information describing impacts and threats to the species. We evaluate any information on specific demographic factors pertinent to evaluating extinction risk for the species (e.g., population abundance and trends, productivity, spatial structure, age structure, sex ratio, diversity, current and historical range, habitat integrity or fragmentation), and the potential contribution of identified demographic risks to extinction risk for the species. We then evaluate the potential links between these demographic risks and the causative impacts and threats identified in section 4(a)(1) of the ESA.

    Information presented on impacts or threats should be specific to the species and should reasonably suggest that one or more of these factors may be operative threats that act or have acted on the species to the point that it may warrant protection under the ESA. Broad statements about generalized threats to the species, or identification of factors that could negatively impact a species, do not constitute substantial information indicating that listing may be warranted. We look for information indicating that not only is the particular species exposed to a factor, but that the species may be responding in a negative fashion; then we assess the potential significance of that negative response.

    UKTR Chinook Salmon ESU

    We completed the first status review for UKTR Basin Chinook salmon in 1998 (Myers et al., 1998). Myers et al. (1998) defined the UKTR Chinook salmon ESU as including all spring-run and fall-run populations from the Trinity River and Klamath River upstream from the confluence of the Trinity River. Based on the information in the status review, we determined that the UKTR Chinook salmon ESU was not at a significant risk of extinction, nor was it likely to become endangered in the foreseeable future, and therefore did not warrant listing under the ESA (63 FR 11482; March 9, 1998). On January 28, 2011, the Secretary of Commerce received a petition from the Center for Biological Diversity (CBD), Oregon Wild, Environmental Protection Information Center, and The Larch Company, to list UKTR Chinook salmon under the ESA and designate critical habitat. We made a positive 90-day finding, conducted a status review, and made a 12-month not warranted finding on the petitioned actions (77 FR 19597; April 2, 2012). In reaching our not warranted conclusion, we confirmed our earlier finding that spring-run and fall-run Chinook salmon in the UKTR Basin constitute a single ESU and, consistent with our earlier finding, concluded that the overall extinction risk of the ESU was considered to be low over the subsequent 100 years.

    Evaluation of Petition and Information Readily Available in NMFS Files

    The petition contains information and arguments in support of listing Chinook salmon under the two alternatives requested by the Petitioners. Under the first listing alternative, the Petitioners request that we list as threatened or endangered the UKTR Chinook salmon ESU, in contrast to our previous finding in 2012 that listing this ESU was not warranted (77 FR 19597; April 2, 2012). In support of their request, the Petitioners present information about recent trends in abundance of the spring-run component of the UKTR Chinook salmon ESU, arguing that those trends indicate that the ESU should be listed. The Petitioners state that the total number of naturally spawning spring-run Chinook salmon since 1990 has averaged 9,983 spawners (range: 2,133 to 35,827); however, in recent years, the abundance of spring-run Chinook has declined. In fact, three out of the six worst years on record were in the past decade, with 4,215 spawners in 2014, 2,638 in 2015, and 2,133 in 2016. The Petitioners note that 2017 was likely to be even lower and that this trend places the ESU at risk of extinction. In our previous not warranted finding (77 FR 19597; April 2, 2012) we found that recent abundance estimates were low relative to historical abundance estimates and that this was most evident in two of the three spring-run populations units evaluated. Specifically, the Biological Review Team (BRT) that was asked to review the status of the UKTR Chinook salmon in 2011 noted concerns about the low numbers of spawners within the spring-run populations and while they concluded that these low numbers did not pose an immediate risk of extinction to the ESU, they were concerned that appropriate habitat and conditions that allow for the expression of the spring-run life history were limited (Williams et al. 2011). Given the new information presented by the Petitioners, which show a continued decline in spring-run spawners since the 2011 review, we find that a reasonable person would conclude that low spawner abundance may be impacting overall genetic diversity of the ESU to the point where the petitioned action may be warranted, and that further evaluation is necessary.

    The Petitioners also present information on the threats facing the spring-run component of the UKTR Chinook salmon ESU. The Petitioners argue that all five ESA section 4(a)(1) factors contribute to the need to list the species. However, we find that they have only provided support for two of the factors: Disease and the inadequacy of existing regulatory mechanisms. The Petitioners claim that recent observations indicate high rates of disease in juvenile Chinook salmon. In 2014, 81 percent of juvenile Chinook salmon sampled were infected with the lethal parasite Ceratonova shasta. In 2015, this percentage rose to 90 percent of sampled juvenile Chinook salmon. These high rates of infection were purportedly the result of poor water quality, low flows, and prolonged absence of flushing flows necessary to scour the river bed (Hillemeier et al. 2017). While we do not have additional information in our files on disease risks to Chinook salmon, we consider infection from C. shasta to pose a significant risk to coho salmon in the Klamath River basin (NMFS 2013). In the latest 5-year review of the threatened Southern Oregon/Northern California Coast Coho Salmon ESU, we found that severe infection of juvenile coho salmon by C. shasta may contribute to declining adult coho salmon returns in the Klamath basin. Risk of mortality from infection (referred to as ceratomyxosis) was greatest at higher temperatures, and given the drought conditions that have persisted for the last four years and associated high water temperatures, we concluded that the risk from ceratomyxosis has likely been higher in the last five years than in the previous five years (NMFS 2016). Based on the information from the Petitioners, infection and associated mortality from ceratomyxosis may also be a significant threat to Chinook salmon in the Klamath, particularly given these two species' similar life histories. Considering the information indicating a declining abundance of spring-run spawners, we find that a reasonable person would conclude that additional mortality of UKTR chinook salmon from disease indicates that the petitioned action may be warranted.

    The Petitioners also claim that current hatchery practices and harvest management are inadequate, with current exploitation rates of the species leading to the observed decline in the ESU. In support of their argument, the petitioners claim that the majority of the naturally spawning Chinook salmon in the Trinity basin are of hatchery origin. The Petitioners state that the high proportion of hatchery fish further supports their argument about the low number of returning spring-run Chinook salmon. The Petitioners also provide information on the inadequacy of harvest management. The Petitioners describe how fisheries managers have expressed the need to manage spring-run Chinook salmon. In 2003, the Klamath Fisheries Management Council reported to the Pacific Fisheries Management Council that they intended to develop management recommendations aimed at the conservation of spring-run Chinook salmon while preserving meaningful harvest opportunities for both ocean and river fisheries. The Petitioners claim that harvest management objectives were never set. We also do not have any information in our files to show that current regulatory mechanisms adequately address the threats identified above for spring-run Chinook salmon. Therefore, we find that a reasonable person would conclude that the inadequacy of existing regulatory measures to address threats of overutilization or disease of the UKTR Chinook salmon ESU indicate that the petitioned action may be warranted.

    Under the second recommended listing alternative, the Petitioners present new genetic evidence to suggest the spring-run Chinook salmon populations in the UKTR Basin may qualify as a separate ESU from the fall-run populations and request this new ESU to be listed based on the threats identified above. Based on biological, genetic, and ecological information compiled and reviewed as part of the status review for Chinook salmon (Myers et al., 1998), we included all spring-run and fall-run Chinook salmon populations in the Klamath River Basin upstream from the confluence of the Klamath and Trinity rivers in the UKTR Chinook salmon ESU (63 FR 11482; March 9, 1998). In our 2012 not warranted decision (77 FR 19597; April 2, 2012), we reconfirmed the configuration of the UKTR Chinook salmon ESU. In both cases, we found that spring-run and fall-run Chinook salmon populations in the UKTR Basin were genetically very similar and not reproductively isolated from each other. The Petitioners contend the findings from a recently published article on the evolutionary basis of premature migration in Pacific salmon (Prince et al. 2017) indicate that spring-run Chinook salmon in the UKTR Basin should be considered a separate ESU, and therefore eligible to be listed as threatened or endangered. Prince et al. (2017) suggest that their results indicate that premature migration (e.g. spring-run Chinook salmon) arose from a single evolutionary event within the species and, if lost, are not likely to re-evolve in time frames relevant to conservation planning. Therefore, the Petitioners contend that the new genetic information indicates that spring-run Chinook salmon in the UKTR Basin satisfy the criteria for a species to be considered an ESU because: (1) They are substantially reproductively isolated, and (2) they represent an important component in the evolutionary legacy of the species. We have reviewed the new genetic information and find that a reasonable person may conclude that spring-run Chinook salmon in the UKTR Basin would qualify as an ESU pursuant to our ESU Policy.

    Petition Finding

    After reviewing the information contained in the petition, as well as information readily available in our files, we conclude the petition presents substantial scientific information indicating the petitioned actions to list as threatened or endangered the UKTR Chinook salmon ESU or, alternatively, to create a new ESU to describe spring-run Chinook salmon in the UKTR Basin and list the new ESU as threatened or endangered may be warranted. Therefore, in accordance with section 4(b)(3)(A) of the ESA and NMFS' implementing regulations (50 CFR 424.14(h)(2)), we will commence a status review of the UKTR Chinook salmon ESU. During our status review, we will first consider the request to designate a new ESU to describe spring-run Chinook salmon in the UKTR Basin in light of our ESU Policy (56 FR 58612; November 20, 1991). If we determine that the spring-run component qualifies as a separate ESU, then we will evaluate its status to determine whether it is in danger of extinction or likely to become so within the foreseeable future throughout all or a significant portion of its range. Otherwise, we will evaluate the status of the existing UKTR Chinook salmon ESU to determine if it warrants listing. As required by section 4(b)(3)(B) of the ESA, we will publish a finding as to whether listing an ESU as endangered or threatened is warranted.

    Information Solicited

    To ensure that our status review is informed by the best available scientific and commercial information, we are opening a 60-day public comment period to solicit information on Chinook salmon in the UKTR Basin. We also solicited information on Chinook salmon in the UKTR Basin with our 90-day finding on the previous petition (76 FR 20302; April 12, 2011). Therefore, please do not re-submit information submitted in response to that previous finding. We request information from the public, concerned governmental agencies, Native American tribes, the scientific community, agricultural and forestry groups, conservation groups, fishing groups, industry, or any other interested parties concerning the current and/or historical status of Chinook salmon in the UKTR Basin. Specifically, we request information regarding: (1) Species abundance; (2) species productivity; (3) species distribution or population spatial structure; (4) patterns of phenotypic, genotypic, and life history diversity; (5) habitat conditions and associated limiting factors and threats; (6) ongoing or planned efforts to protect and restore the species and their habitats; (7) information on the adequacy of existing regulatory mechanisms, whether protections are being implemented, and whether they are proving effective in conserving the species; (8) data concerning the status and trends of identified limiting factors or threats; (9) information on targeted harvest (commercial and recreational) and bycatch of the species; (10) other new information, data, or corrections including, but not limited to, taxonomic or nomenclatural changes; and (11) information concerning the impacts of environmental variability and climate change on survival, recruitment, distribution, and/or extinction risk.

    We are also requesting information on areas that may qualify as critical habitat for Chinook salmon in the UKTR Basin. Please identify: Physical and biological features essential to the conservation of the species that may require special management considerations; areas occupied by the species containing those physical and biological features; and unoccupied areas essential for conservation of the species (16 U.S.C. 1533(a)(3)(A); 50 CFR 424.12).

    We request that all information be accompanied by: (1) Supporting documentation such as maps, bibliographic references, or reprints of pertinent publications; and (2) the submitter's name, address, and any association, institution, or business that the person represents.

    References Cited

    The complete citations for the references used in this document can be obtained by contacting NMFS (See FOR FURTHER INFORMATION CONTACT) or on our web page at: www.westcoast.fisheries.noaa.gov.

    Authority:

    The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: February 21, 2018. Samuel D. Rauch, III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.
    [FR Doc. 2018-03906 Filed 2-26-18; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 300 [Docket No. 171026999-8049-01] RIN 0648-BH36 Fisheries Off West Coast States; Highly Migratory Fisheries; Amendment 4 to Fishery Management Plan for West Coast Highly Migratory Species Fisheries; Revisions to the Biennial Management Cycle AGENCY:

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

    ACTION:

    Proposed rule; request for comments.

    SUMMARY:

    Based on a recommendation from the Pacific Fishery Management Council (Council) NMFS is proposing to revise regulations under the Magnuson-Stevens Fishery Conservation and Management Act (MSA) to implement Amendment 4 to the Fishery Management Plan for U.S. West Coast Highly Migratory Species (HMS FMP). The intent of Amendment 4 is to bring descriptions of the management context for HMS fisheries up to date, to better describe the Council's role in the process of making stock status determinations for highly migratory species (HMS), including the Council's evaluations of the best scientific information available (BSIA), and to change the schedule of the Council's three-meeting biennial management cycle for HMS stocks. Consistent with Amendment 4, this proposed rule would update and amend the descriptions of biennial management cycle activities in the regulations for the HMS FMP to allow the Council to shift the schedule of Council meetings for the consideration of HMS management actions from June, September, and November to September, November, and March. The changes proposed to biennial management cycle activities and the schedule are intended to better streamline international and domestic management processes for HMS. Amendment 4 and this proposed rule are administrative in nature and are not expected to affect activities authorized under the FMP or harvest levels of HMS.

    DATES:

    Comments on the proposed rule and supporting documents must be submitted in writing by April 13, 2018. However, please note that comments regarding the decision to approve, disapprove, or partially approve Amendment 4 to the HMS FMP must be submitted by the end of the comment period for the Notice of Availability (NOA) for Amendment 4, which was published separately in the Federal Register on January 23, 2018 (see the NOA at 83 FR 3108).

    ADDRESSES:

    You may submit comments on this document, identified by NOAA-NMFS-2017-0138, by any of the following methods:

    Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to http://www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2017-0138, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.

    Mail: Submit written comments to [email protected], NMFS West Coast Region Long Beach Office, 501 W. Ocean Blvd., Suite 4200, Long Beach, CA 90802. Include the identifier “NOAA-NMFS-2017-0138” in the comments.

    Instructions: Comments must be submitted by one of the above methods to ensure they 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 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).

    Copies of the proposed Amendment 4, Regulatory Impact Review (RIR) and other supporting documents are available via the Federal eRulemaking Portal: http://www.regulations.gov, docket NOAA-NMFS-2017-0138, or contact Amber Rhodes, NMFS West Coast Region, 562-980-3231, [email protected] or Heidi Taylor, NMFS West Coast Region, 562-980-4039, [email protected]

    FOR FURTHER INFORMATION CONTACT:

    Amber Rhodes, NMFS, 562-980-3231, [email protected] or Heidi Taylor, NMFS, 562-980-4039, [email protected]

    SUPPLEMENTARY INFORMATION:

    Background

    During the Council's 2016 biennial management cycle meetings for HMS and considerations for recent revisions to agency guidelines for National Standard 1 (81 FR 71858, October 18, 2016), key differences became evident regarding the management of HMS stocks versus other Council-managed stocks for which management activities are largely or fully within the scope of Council jurisdiction. In contrast to assessments for other Council-managed stocks, which are conducted by NMFS, most HMS assessments are conducted by teams of regional fishery management organization (RFMO) scientific committees, which may include scientists from the United States and other participating nations in Pacific HMS fisheries or international scientists who work at RFMOs. Additionally, NMFS employs peer review processes to determine whether the output of international HMS assessments meet the BSIA standard. (See the August 16, 2016, notice of regional peer review processes, 81 FR 54561.) These peer review processes are consistent with BSIA determinations for most U.S.-targeted stocks subject to international agreements. Following these steps, NMFS uses assessment outputs that meet the BSIA standard to determine stock status by applying the status determination criteria (i.e., maximum fishing mortality thresholds and minimum stock size thresholds) in the HMS FMP.

    During its September 2017 meeting, the Council decided to submit Amendment 4 to the HMS FMP to NMFS for review. In a January 23, 2018, Notice of Availability (83 FR 3108), NMFS announced that the Council submitted Amendment 4 to the Secretary of Commerce for approval, and requested comments on Amendment 4. Amendment 4 intends to bring descriptions of the management context for HMS fisheries up to date and to shift the schedule for the Council's biennial management cycle. Finalization of this proposed rule to revise regulations at 50 CFR 660.709 is contingent upon approval of Amendment 4 and NMFS responses to comments received on this proposed rule.

    Amendment 4 is intended to better align the Council's biennial management cycle for HMS with the timing of international stock assessments and stock status determinations. Most HMS are internationally assessed, and stock assessments for HMS, unlike assessments for domestically-managed stocks, are not routinely subject to the review of the Council's Scientific and Statistical Committee for purposes of determining BSIA. Therefore, the results from updated international assessments that have been determined to be BSIA may not be readily available to the Council during their June and September meetings for scoping, determining alternatives, and selecting preferred management recommendations to address the status of stocks deemed overfished or subject to overfishing. Thus, these decisions currently must occur on an ad hoc basis, sometimes resulting in inefficiencies and in difficulties in interpreting and applying outdated information. The changes to the current biennial management cycle included in Amendment 4 and implemented by this proposed rule would allow the Council to streamline domestic and international management activities, such as stock assessment and biological reference point reviews, and to better align schedules to meet statutory timelines in section 304(e) and (i) of the MSA (16 U.S.C. 1854(e) and (i)) for making recommendations for domestic regulations and international measures when stocks are determined to be overfished or subject to overfishing. Additionally, this rule's proposed revisions to 50 CFR 660.709 would ensure that the meeting schedule is not codified in regulations, thus allowing the Council to make changes to the schedule for its meetings in the biennial management cycle, consistent with the HMS FMP, without needing to seek a change in the regulatory language. Allowing the Council to make this type of adjustment without seeking a regulatory change improves the efficiency with which future changes to the biennial management cycle can be implemented.

    Proposed Regulations

    This proposed rule would amend 50 CFR 660.709 to update the descriptions of biennial management cycle activities under the HMS FMP and shift the schedule of Council meetings from June, September, and November to September, November, and March by referring to the schedule specified in the HMS FMP. Thus, the proposed regulations remove the need to make future schedule changes to the Council's biennial management cycle through a rulemaking.

    Classification

    Pursuant to section 304 (b)(1)(A) of the MSA (16 U.S.C. 1854(b)(1)(A)), the NMFS Assistant Administrator has determined that this proposed rule is consistent with Amendment 4 to the HMS FMP, other provisions of the MSA, and other applicable laws, subject to further consideration after public comment.

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

    The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. For Regulatory Flexibility Act (RFA) purposes only, NMFS has established a size standard for businesses, including their affiliates, whose primary industry is commercial fishing (see 50 CFR 200.2). A business primarily engaged in commercial fishing (NAICS 11411) is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $11 million for all its affiliated operations worldwide. However, this proposed rule to revise regulations at 50 CFR 660.709, consistent with Amendment 4 to the HMS FMP, is administrative in nature and will not directly affect the operations of any businesses, small or large, that are authorized to catch finfish under the HMS FMP. Because the proposed action does not include revisions to stock status determination criteria (i.e., minimum stock size thresholds or maximum fishing mortality thresholds) used to determine whether management unit species of the HMS FMP are subject to overfishing or are overfished, the proposed action will not directly affect fishing activities authorized under the HMS FMP or the harvest levels of these fisheries. Therefore, there are no significant economic impacts on a substantial number of small entities. As a result, an initial regulatory flexibility analysis is not required, and none has been prepared.

    There are no new collection-of-information requirements associated with this action that are subject to the Paperwork Reduction Act; however, existing collection-of-information requirements associated with the HMS FMP still apply. These requirements have been approved by the Office of Management and Budget (OMB control numbers 0648-0204, 0648-0223, 0648-0361, 0648-0498). Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection-of-information subject to the requirements of the PRA, unless that collection-of-information displays a currently valid OMB control number.

    List of Subjects in 50 CFR Part 660

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: February 22, 2018. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 660 is proposed to be amended as follows:

    PART 660—FISHERIES OFF WEST COAST STATES Subpart K—Highly Migratory Fisheries 1. The authority citation for part 660, subpart K, continues to read as follows: Authority:

    16 U.S.C. 1801 et seq.

    2. In § 660.709, remove paragraphs (a)(2) and (a)(3), redesignate paragraph (a)(4) as (a)(2), and revise paragraphs (a)(1) and (d) to read as follows:
    § 660.709 Annual specifications.

    (a) Procedure. (1) Each year, the HMSMT will deliver a stock assessment and fishery evaluation report to the Council for all HMS with any necessary recommendations for harvest guidelines, quotas or other management measures to protect HMS, including updated maximum sustainable yield (MSY) and optimum yield (OY) estimates based on the best available science. The Council's Scientific and Statistical Committee may review the estimates and make a recommendation on their suitability for management. As described in the fishery management plan, the Council will periodically review these recommendations and decide whether to adopt updated numerical estimates of MSY and OY, which are then submitted as recommendations for NMFS to review as part of the management measures review process.

    (d) Irrespective of the normal review process, the Council may propose management action to protect HMS at any time. The Council may adopt a management cycle different from the one described in the fishery management plan provided that such change is made by a majority vote of the Council and a 6-month notice of the change is given.

    [FR Doc. 2018-03963 Filed 2-26-18; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 600 [Docket No. 160908833-7999-01] RIN 0648-BG34 Requirements of the Vessel Monitoring System Type-Approval; Reopening of Public Comment Period AGENCY:

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

    ACTION:

    Proposed rule; reopening of public comment period.

    SUMMARY:

    The National Marine Fisheries Service is reopening the public comment period on the proposed rule on requirements of the Vessel Monitoring System Type-Approval that published on December 5, 2017. The comment period ended on January 4, 2018. NMFS did not receive any comments on the original proposed rule and has decided to re-open the comment period for 30 days to provide additional opportunity for informed public comment.

    DATES:

    The deadline for comments on the proposed rule published at 82 FR 57419 has been reopened from February 27, 2018 to March 29, 2018.

    ADDRESSES:

    You may submit comments on the proposed rule, as published on December 5, 2017 (82 FR 57419), identified by “NOAA-HQ-2017-0141” by any of the following methods:

    Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to http://www.regulations.gov/#!docketDetail;D=NOAA-HQ-2017-0141, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.

    Mail: Send written comments to Kelly Spalding, 1315 East West Highway, Room 3207, Silver Spring, MD 20910.

    Instructions: 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 by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personally identifiable information (e.g.; name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous).

    FOR FURTHER INFORMATION CONTACT:

    Kelly Spalding, Vessel Monitoring System Program Manager, Headquarters: 301-427-8269 or [email protected]

    SUPPLEMENTARY INFORMATION: Background

    On December 5, 2017, NMFS published in the Federal Register (82 FR 57419) a proposed rule on NMFS's proposed amendment to remove two sections of 50 CFR part 600, subpart Q, that require VMS type-approval holders (VMS vendors) to periodically renew their type-approvals. Currently, § 600.1512 of the VMS type approval regulations provides that type-approvals are valid for three years from the date on which NMFS publishes a notice in the Federal Register of the approval. Section 600.1513 requires that prior to the expiration of the three-year type-approval period, the VMS vendor must comply with the procedure set out for type-approval renewal. NMFS has found that the renewal process is unnecessary, has cost fishermen and approved VMS vendors additional time and expense, and has imposed unnecessary cost on the government and is therefore proposing to remove the renewal requirement from 50 CFR 600, Subpart Q. NMFS refers the reader to the December 5, 2017 proposed rule (82 FR 57419) for background information concerning the proposed rule as this notice does not repeat the information contained therein.

    Public Comment Reopening

    NMFS will re-open the comment period for 30 days to provide additional opportunity for informed public comment.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: February 22, 2018. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.
    [FR Doc. 2018-03945 Filed 2-26-18; 8:45 am] BILLING CODE 3510-22-P
    83 39 Tuesday, February 27, 2018 Notices DEPARTMENT OF AGRICULTURE Rural Housing Service Request for Proposals: Multi-Family Housing Transfer and Prepayment Technical Assistance Grants AGENCY:

    Rural Housing Service, USDA.

    ACTION:

    Notice.

    SUMMARY:

    This Request for Proposal (RFP or Notice) announces an availability of funds and the timeframe to submit proposals for Multi-Family Housing (MFH) Transfer and Prepayment Technical Assistance (TA) grants. Section 771 of the Consolidated Appropriations Act, 2017 appropriated $1,000,000 to provide grants to qualified non-profit organizations and public housing authorities (PHA). Selected grantees will use the funds to provide financial and legal TA to the Rural Housing Service (RHS) MFH loan applicants to facilitate the acquisition of RHS Section 515 properties with maturing Rural Development (RD) mortgages, in areas at risk of losing affordable housing. Consistent with Section 771 and the pilot program initiated by RHS on March 1, 2017 (available at: www.rd.usda.gov/files/RDUL-Nonprofit.pdf), this RFP is soliciting proposals from qualified non-profit organizations and PHA to provide TA to MFH loan applicants who are qualified non-profit organizations and PHA with their acquisitions of Section 515 properties with maturing mortgages.

    Work performed under these grants is expected to result in an increased submission of quality applications for transfers of Section 515 properties to eligible non-profit and PHA loan applicants as defined in RD regulations. Furthermore, it will result in the preservation and continued availability of decent, safe, and sanitary housing for eligible Rural Rental Housing (RRH) tenants and maximize the Government's ongoing return on the public's investment in rural areas.

    The grant funds must be used to assist eligible loan applicants with specific transactions to acquire Section 515 projects with maturing mortgages under the pilot program. Grant funds are available for obligation through September 30, 2018.

    DATES:

    February 27, 2018.

    ADDRESSES:

    Complete proposals should be addressed to Mirna Reyes-Bible, Finance and Loan Analyst, Preservation and Direct Loan Division, STOP 0781 (Room 1243-S), USDA Rural Development, 1400 Independence Avenue SW, Washington, DC 20250-0781 and must be received by 5:00 p.m. Eastern Daylight Time March 29, 2018 (deadline).

    You should contact a U.S. Department of Agriculture (USDA) Rural Development State Office if you have questions. You are encouraged to contact your State Office well in advance of the proposal deadline to ask any questions about the process. Contact information for State Offices can be found at https://www.rd.usda.gov/contact-us/state-offices.

    Program guidance as well as application guidance may be obtained at: https://www.rd.usda.gov/programs-services/multi-family-housing-direct-loans.

    Please review the grants.gov website at: http://grants.gov/applicants/organization/registration.jsp for instructions on the process of registering your organization as soon as possible to ensure you are able to meet the proposal deadline. Proposals received after the deadline will not be evaluated.

    RHS will date and time stamp incoming proposals to evidence timely receipt and; upon request, will provide the responding entities with a written acknowledgement of receipt.

    FOR FURTHER INFORMATION CONTACT:

    Mirna Reyes-Bible, Finance and Loan Analyst, Preservation and Direct Loan Division, STOP 0781 (Room 1243-S), USDA Rural Development, 1400 Independence Avenue SW, Washington, DC 20250-0781, telephone: (202) 720-1753 (this is not a toll free number), or via email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Overview Information

    Federal Agency Name: Rural Housing Service.

    Funding Opportunity Title: Request for Proposals: Multi-Family Housing Transfer and Prepayment Technical Assistance Grants.

    Announcement Type: Initial Announcement.

    Catalog of Federal Domestic Assistance: 10.447.

    Dates: The deadline for receipt of all proposals in response to this RFP is 5:00 p.m., Eastern Daylight Time, on March 29, 2018.

    Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act, the paperwork burden associated with this Notice has been approved by the Office of Management and Budget (OMB) under OMB Control Number 0570-0006.

    Funding Opportunity Description

    The TA grants authorized under this Notice are for the purpose of facilitating the transfer and preservation of existing RRH properties with maturing mortgages under Section 515 of the Housing Act of 1949, as amended. RHS regulations for the Section 515 program are published at 7 CFR part 3560. Proposals must demonstrate the responding entity's experience and expertise in all aspects of acquisition and rehabilitation of affordable MFH properties and their demonstrated capacity to provide advisory services in affordable housing. All responding entities must project the net Return on Investment (ROI) of the grant funds being requested to demonstrate the relative effectiveness and efficiency of grantee's proposed Statement of Work (SOW) for future Agency decisions and program revisions.

    Responding entities may submit separate requests involving properties in multiple local areas. For the purpose of this Notice, responding entities may and are encouraged to submit a grant proposal for multiple local areas provided they are within the same region as described in this section. A responding entity may apply to more than one region; however, separate proposals must be submitted for each region. Entities interested in responding to this Notice must consult with the Rural Development State Director in the proposal's region to develop a list of targeted local areas in their respective State Office jurisdictions. To effectively represent the geographic diversity of projects within the RD portfolio the Agency will consider and score all proposals on a regional basis. RHS intends to award at least one grant for each of the four geographic regions listed below.

    North-East: CT, DE, MA, MD, ME, NH, NJ, NY, PA, RI, VT, VI, WV South: AL, AR, FL, GA, KY, LA, NC, OK, MS, PR, SC, TN, TX, VI Mid-West: IL, IN, IA, KS, MI, MN, MO, NE, ND, OH, SD, WI West: AK, AZ, CA, CO, HI, ID, MT, NV, NM, OR, UT, WA, WY, WP I. Award Information

    RHS will evaluate and score the grant applications according to the criteria set forth in this Notice. RHS will select grantees based on the scoring as well as the goal of achieving the highest number of different grantees, areas and loan applicants, and cost-efficiency. The maximum award within a region will be $250,000. The maximum total expenditure for all TA services, including administrative costs, per project is $40,000.

    RHS has the authority under the Act to utilize up to 100 percent of the Section 771 appropriation for MFH TA grants. Funds not obligated to initial awardees by June 1, 2018, may be awarded to other non-profit and/or PHA applicants waiting for the TA grants based on scoring.

    When selecting a grantee, RHS may request changes to the SOW (see Part III of this Notice). Grantees must execute a Grant Agreement that will, among other things, incorporate a SOW (see Part III of this Notice) agreed to by the RHS. If the selected grantee does not accept the terms of RHS and/or does not deliver an executed Grant Agreement to RHS within ten business days after receiving the Grant Agreement with the agreed upon SOW, RHS may choose to rescind the award and select another grantee without further notice.

    II. Eligibility Information

    Eligibility for grants under this Notice is limited to non-profit organizations and PHAs meeting the requirements specified in this Notice.

    A. Expertise and Capacity

    Eligible grantees must have the knowledge, ability, technical expertise, practical experience, and capacity necessary to develop and package Section 515 property transfer transactions. They must also be able to demonstrate the ability to provide TA to non-profits and/or PHAs to facilitate their acquisition of Section 515 properties, including, but not limited to, the submission of loan application packages. In addition, all eligible grantees must possess the ability to exercise leadership, organize work, and prioritize assignments to meet work demands in a timely and cost efficient manner. Eligible grantees will include a proposed SOW (see Section III of this Notice) which will be evaluated as part of any eligibility qualification and award determination.

    B. Organization Status

    Responding entities must document each of the following in their response:

    1. Status as a non-profit and/or PHA.

    2. Good standing within the State you are organized.

    3. Legal authority to operate and deliver financial and legal TA under the applicable State law for the State(s) you propose to deliver the TA. Examples of acceptable documentation include but are not limited to bylaws, organizational charters, and statutes or regulations.

    4. No current or unresolved default or violation of any other Federal, State or local grant or loan agreement(s).

    5. Experience in providing TA for MFH affordable housing (describe in the SOW).

    6. The requirements above will also apply to any entity performing services on behalf of the respondent.

    III. SOW

    Responding entities must submit a detailed SOW describing each of the following requirements:

    1. An introduction/overview with a description of your plan to provide TA to non-profits and PHAs in the acquisition of Section 515 properties with maturing mortgages.

    2. Explain your organization's capabilities to execute your plan, focusing on the elements described in Section II.A of this RFP.

    3. Provide a timeline projection with when, how, and to whom you intend to provide the TA. Include a grant funds usage projection that corresponds with the timeline and illustrates administrative costs in dollars, and as a percentage of the TA services provided. Please see Section IV for more information regarding eligible costs.

    4. Describe the types of TA you propose to provide for non-profits and/or PHAs to enable them to submit successful transfer applications to RHS.

    5. Describe how you will access other funding sources for any needed development and/or construction, repair and rehabilitation of the MFH properties.

    6. Describe which services you will provide directly and which you will provide through third parties.

    7. Describe how you will identify potential sellers of properties to be acquired by non-profits and/or PHAs.

    8. Explain your process to use grant funds to non-profits and/or PHAs for actual legal and financial soft cost expenditures.

    9. Describe your direct and indirect administrative costs that would be associated with the administration of this grant.

    10. Describe any other strength and/or capability not included above that you believe qualifies you to administer this grant.

    11. Project the ROI of the requested grant funds to demonstrate the effectiveness and efficiency of your proposal. Describe the method being used to project an ROI, which must involve a detailed examination of outputs and outcomes.

    IV. Eligible Purposes

    Entities responding to this Notice are required to provide TA to non-profits and/or PHAs acquiring Section 515 projects with maturing mortgages for eligible expenses in any or all of the following areas: Assisting non-profits or PHAs locate potential Section 515 properties with maturing mortgages for transfer; providing TA in the transfer analysis, negotiation, underwriting, and application process; and working with the non-profit or PHA to identify other financial assistance and help secure funding from other sources for the purpose of leveraging those funds with RHS funds. Costs will be limited to those that are allowed under 2 CFR part 200. The provider will need to secure RHS' written approval for payment of any services not specifically listed below.

    1. Eligible purposes may include soft costs such as legal costs, tax consultation fee, financial analysis, transaction structuring analysis and documentation of other transaction details such as Capital Needs Assessments (CNA), appraisals, and market surveys or other consultation, advisory and non-construction services the buyer may be required to provide as part of the application process. Build materials, labor and trades or any costs or expenditures otherwise typically included as any hard costs for actual construction, repairs, prepayment, interest or principal payments or reductions or other costs not disclosed to and approved by the RHS National Office prior to being incurred will not be eligible for payment with any of the grant funds awarded under this Notice.

    2. Grant funds will not be used by the provider for TA activities that are not directly related to a specific transaction (such as outreach, conferences, provider personnel education/training, etc.).

    3. Grant funds will not be used by the provider for TA activities for transactions in which they have any direct or indirect ownership interest (regardless of whether it is an interest as a current or prospective owner).

    4. In addition, if selected for funding, the respondent will be required to revise their SOW to identify any changes in the geographic location of the targeted areas and will submit their revised SOW to the National Office for approval. Any revision must not lower the initial score used in selection. If a revision lowers the score, it will result in a review of the initial scores for all applications received in the region and the grant will be awarded to the responding entity in the same manner as previously prescribed in this Notice. When submitted for approval, the respondent must also submit a summary of their consultation with the RD State Directors. At grant closing, the revised SOW will be attached to, and become a part of, the Grant Agreement. Revision and consultation under this paragraph is not an eligible purpose.

    V. Proposal and Submission Information

    All proposals must be delivered in three identical binders organized as follows:

    A. Summary

    The proposal must include a summary page listing all of the following items. This information should be double-spaced between items and not be in narrative form:

    A. Responding entity's name,

    B. Responding entity's Taxpayer Identification Number,

    C. Responding entity's address,

    D. Responding entity's telephone number,

    E. Name of responding entity's contact person, telephone number, and address,

    F. Amount of grant requested,

    G. The MFH TA grant region for which the proposal is submitted (i.e., North-East, South, Mid-West, or West), and

    H. Responding entity's Dun and Bradstreet Data Universal Numbering System (DUNS) number, registration in the Central Contractor Registration (CCR) database prior to submitting a proposal pursuant to 2 CFR 25.200(b), and other supporting information to substantiate their legal authority and good standing. Organizations can receive a DUNS number at no cost by calling the dedicated toll-free DUNS Number request line at (866) 705-5711 or via the internet at http://www.dnb.com/. Additional information concerning this requirement can be obtained on the grants.gov website at http://www.grants.gov. Similarly, respondents may register for the CCR at https://uscontractingregistration.com or by calling (877) 252-2700. In addition, the responding entity must maintain registration in the CCR database at all times during which it has an active Federal award or an application or plan under construction by the Agency. Similarly, all recipients of Federal financial assistance are required to report information about first-tier sub-awards and executive compensation in accordance with 2 CFR part 170, so long as an entity respondent does not have an exception under 2 CFR 170.110(b), the grantee must have the necessary processes and systems in place to comply with the reporting requirements should the responding entity receive funding. See 2 CFR 170.200(b).

    B. Felonies and Federal Tax Delinquencies

    Awards made under this Notice are subject to Sections 745 and 746 of the Consolidated Appropriations Act, 2017 (Pub. L. 115-31) regarding corporate felony convictions and corporate Federal tax delinquencies. To comply with these provisions, all respondents must complete and include the proposed paragraph (A) of this representation, and all corporate respondents also must complete paragraphs (B) and (C) of this representation:

    (1) The responding entity: ______ [insert name] has __ has not __ (check one) filed articles of incorporation in one of the fifty States, the District of Columbia, or the various territories of the United States including American Samoa, Federated States of Micronesia, Guam, Midway Islands, Northern Mariana Islands, Puerto Rico, Republic of Palau, Republic of the Marshall Islands or the U.S. Virgin Islands.

    (2) Neither the responding entity nor any key principle or member of the controlling board, council, or governing body, ______ [insert name] has __ has not __ (check one) been convicted of a felony criminal violation under Federal or State law in the 24 months preceding the date of application. The entity has __ has not __ (check one) had any officer or agent of the respondent convicted of a felony criminal violation for actions taken on behalf of the respondent under Federal or State law in the 24 months preceding the date of the signature on the pre-application.

    (3) The responding entity ______ [insert name] has __ does not have __ (check one) any unpaid Federal tax liability that has been assessed, for which all judicial and administrative remedies have been exhausted or have lapsed, and that is not being paid in a timely manner pursuant to an Agreement with the authority responsible for collecting the tax liability.

    C. Organizational and Financial Status

    Proposals must include organizational status documents reflecting the criteria in Section II.B of this Notice, as well as financial statements to evidence the responding entity's status as a properly organized private or public non-profit or PHA and its financial ability to carry out the objectives of the grant program. If other entities will be working on behalf of the grantees, working agreements between the respondent and those entities must be submitted as part of the proposal and any associated cost must be included in the responding entity's budget.

    Responding entities must also disclose all RHS projects in which the respondent and or its third-party affiliates have a direct or indirect ownership interest.

    D. Organizational Expertise and Experience

    Responding entities must provide a capabilities statement describing the respondent's qualifications under Section II.A to provide TA on Section 515 transfers and loan applications.

    1. Narrative

    The responding entity must include a narrative describing its knowledge, demonstrated ability, and practical experience in providing training and TA to MFH applicants of loans or grants for the development or rehabilitation of MFH, and the number of projects to which they have provided such assistance. This includes its knowledge and demonstrated ability in estimating development and construction costs of MFH and for obtaining the necessary permits and clearances.

    The responding entity must also explain why the targeted areas are at risk for loss of affordable housing.

    2. Specific MFH Experience

    For purposes of demonstrating past MFH experience of responding entities, the Agency will consider experience with MFH programs beyond USDA MFH programs.

    The responding entity must identify the types of TA they proposed to offer will be delivered to the potential purchasers. Proposals must identify types of MFH financial assistance (loans, grants, tax credits, leveraged funding, etc.) for which the responding entity has applied in the last 5 years, as well as the success ratio of those applications.

    Proposals must also identify any applications of a third-party for MFH financial assistance where the responding entity assisted in the development and packaging of the application in the last 5 years, as well as the success ratio of those applications.

    Proposals must identify third parties to whom the responding entity has provided TA on applications for financial assistance for the development, rehabilitation or transfer of MFH projects in the last 5 years.

    Proposals must identify MFH projects for which the responding entity assisted in estimating transfer, development and rehabilitation/construction costs and obtaining permit and clearances in the last 5 years.

    Proposals must identify specific MFH projects for which the responding entity has been able to leverage funding from two or more sources for transfer, rehabilitation, or development.

    For the projects and applications above, information must be provided concerning the number of housing units, their size, their design, and the amount of grant and loan funds that were secured.

    3. Key Personnel

    Proposals must include the resumes of the Key Personnel that will perform the day-to-day administration of this grant. Describe each Key Personnel's ability to perform the proposal's activities, and past experience in successfully managing grants. Also include an organizational plan that includes a staffing chart complete with name, job title, salary, hours, timelines, and descriptions of employee duties to achieve the objectives of the grant program.

    4. Agents

    If the responding entity intends to have other entities working on its behalf, the narrative must identify those entities and address their ability to meet the stated eligibility requirements.

    E. SOW

    Proposals must include a detailed SOW (see Section III of this Notice). The ROI description and method of evaluation is an integral part of the SOW and is a critical component of the selection process and is required under the Government Performance and Results Act of 1993 (Pub. L. 103-62).

    F. Scoring Criteria Worksheet

    Proposals must include a separate one-page information sheet listing each of the “Proposal Scoring Criteria” contained in Section VI of this Notice, followed by the page numbers of all relevant material and documentation that is contained in the proposal that supports these criteria.

    VI. Proposal Review Information

    Only those respondents deemed to be qualified under Sections V.A, V.B and V.C of this Notice will be scored under this section. The review process designed for this RFP will evaluate the degree to which the proposal sets forth measurable realistic objectives that are consistent with this Notice and can be completed within realistic time frames consistent with the proposal and processing guidance established by RD transfer regulations. Proposals will only compete against other proposals within the same region previously identified in this Notice. Selection points will be awarded as follows:

    A. Key Personnel

    1. Key Personnel has successful verifiable experience performing the requirements of this RFP:

    Less than 2 years: 0 points 2-5 years: 5 points More than 5-8 years: 10 points More than 8-12 years: 20 points More than 12 years: 30 points

    2. Key Personnel has successful verifiable experience managing grants through their lifecycle:

    1 or less grants: 0 points 2-4 grants: 5 points 5-8 grants: 10 points 9-12 grants: 20 points 13 or more grants: 30 points B. Target Areas

    1. The more areas the proposal commits to targeting, the more points will be awarded. Points will be given based on the number of areas within a region that the responding entity has targeted:

    5 or less targeted areas: 0 points 6 targeted areas: 5 points 7 targeted areas: 10 points 8 targeted areas: 15 points 9 or more targeted areas: 20 points

    2. RHS wants the responding entity to cover as much of the grant region as possible and as supported by the respective RD State Office(s). For this reason, additional points will be awarded to grant proposals that target areas in more than two States within the same region. All responses to this Notice only compete within the regions previously identified. The grant proposal commits to targeting areas in the following number of States:

    Less than 3 States: 0 points 3 or 4 States: 5 points 5 or 6 States: 10 points 7 or 8 States: 15 points 9 or more States: 20 points C. Multifamily Housing Experience

    1. The number of individually successful (approved, obligated or completed) multi-family loan or grant applications the responding entity has assisted in developing and packaging:

    0-1 applications: 0 points 2-3 applications: 5 points 4-6 applications: 10 points 7-9 applications: 20 points 10 or more applications: 30 points

    2. The number of clients seeking loans or grants for the development, rehabilitation, or transfer of multi-family projects to whom the respondent has provided training and TA.

    0-1 clients: 0 points 2-3 clients: 5 points 4-6 clients: 10 points 7-9 clients: 15 points 10 or more clients: 20 points

    3. The number of multi-family projects for which the respondent has assisted in estimating transfer, development and rehabilitation/construction costs and obtaining the necessary permits and clearances:

    0 to 1 projects: 0 points 2 to 4 projects: 5 points 5 to 7 projects: 10 points 8 to 9 projects: 15 points 10 or more projects: 20 points

    4. The number of times the responding entity has been able to leverage funding from two or more sources for the transfer, rehabilitation, or development of a multi-family project.

    0 to 1 times: 0 points 2 to 4 times: 5 points 5 to 10 times: 10 points 11 to 15 times: 15 points 16 or more times: 20 points D. Administrative Costs

    Administrative costs as a percentage of grant funds used:

    More than 20%: 0 points 15% or more but less 20%: 5 points 10% or more but less 15%: 15 points 5% or more but less 10%: 25 points Less than 5%: 40 points E. Additional Factors

    In the event two or more proposals within a region are scored with an equal amount of points, the Agency will make selections based on achieving the maximum number of areas, regions, grantees and loan applicants being served, as well as cost-efficiency.

    All proposals received under this Notice and grantees will be screened for eligibility to participate in the grant program using Treasury's Do Not Pay Portal in compliance with the Improper Payments Elimination and Recovery Improvement Act.

    RHS will notify all responding entities whether their proposal has been accepted or rejected and provide appeal rights under 7 CFR part 11, as appropriate.

    Paperwork Reduction Act

    The reporting requirements contained in this Notice have been approved by the OMB under Control Number 0575-0181.

    Non-Discrimination Statement

    In accordance with Federal civil rights law and U.S. Department of Agriculture (USDA) civil rights regulations and policies, the USDA, its Agencies, offices, employees, and institutions participating in or administering USDA programs are prohibited from discriminating based on race, color, national origin, religion, sex, gender identity (including gender expression), sexual orientation, disability, age, marital status, familial/parental status, income derived from a public assistance program, political beliefs, or reprisal or retaliation for prior civil rights activity, in any program or activity conducted or funded by USDA (not all bases apply to all programs). Remedies and complaint filing deadlines vary by program or incident.

    Persons with disabilities who require alternative means of communication for program information (e.g., Braille, large print, audiotape, American Sign Language, etc.) should contact the responsible Agency or USDA's TARGET Center at (202) 720-2600 (voice and TTY) or contact USDA through the Federal Relay Service at (800) 877-8339. Additionally, program information may be made available in languages other than English.

    To file a program discrimination complaint, complete the USDA Program Discrimination Complaint Form, AD-3027, found online at http://www.ascr.usda.gov/complaint_filing_cust.html and at any USDA office or write a letter addressed to USDA and provide in the letter all of the information requested in the form. To request a copy of the complaint form, call (866) 632-9992, submit your completed form or letter to USDA by:

    Mail: U.S. Department of Agriculture, Director, Office of Adjudication, 1400 Independence Avenue SW, Washington, DC 20250-9410;

    Fax: (202) 690-7442; or

    Email: [email protected].

    USDA is an equal opportunity provider, employer, and lender.

    Dated: February 15, 2018. Curtis M. Anderson, Acting Administrator, Rural Housing Service.
    [FR Doc. 2018-03900 Filed 2-26-18; 8:45 am] BILLING CODE 3410-XV-P
    COMMISSION ON CIVIL RIGHTS Notice of Public Meeting of the Maine Advisory Committee to the U.S. Commission on Civil Rights AGENCY:

    U.S. Commission on Civil Rights.

    ACTION:

    Announcement of meeting.

    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 that the Maine Advisory Committee (Committee) will hold a meeting on Tuesday, February 27, 2018, at 1:00 p.m. EST for the purpose of preparing for its public meeting on voting rights issues in the state.

    DATES:

    The meeting will be held on Tuesday, February 27, 2018, at 1:00 p.m. EST

    FOR FURTHER INFORMATION CONTACT:

    Evelyn Bohor, at [email protected] or 202-376-7533.

    SUPPLEMENTARY INFORMATION:

    Public Call Information: Dial: 1-888-724-9516, Conference ID: 315918.

    Members of the public can listen to the discussion. This meeting is available to the public through the above listed toll free number. Any interested member of the public may call this number and listen to the meeting. An open comment period will be provided to allow members of the public to make a statement as time allows. The conference call operator will ask callers to identify themselves, the organization they are affiliated with (if any), and an email address prior to placing callers into the conference room. Callers can expect to incur regular charges for calls they initiate over wireless lines, according to their wireless plan. 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. Persons with hearing impairments may also follow the proceedings by first calling the Federal Relay Service at 1-800-877-8339 and providing the Service with the conference call number and conference ID number.

    Members of the public are also entitled to submit written comments; the comments must be received in the regional office within 30 days following the meeting. Written comments may be mailed to the Eastern Regional Office, U.S. Commission on Civil Rights, 1331 Pennsylvania Ave., Suite 1150, Washington, DC 20425. They may also be faxed to the Commission at (202) 376-7548, or emailed to Evelyn Bohor at [email protected]. Persons who desire additional information may contact the Eastern Regional Office at (202) 376-7533.

    Records generated from this meeting may be inspected and reproduced at the Regional Programs Unit Office, as they become available, both before and after the meeting. Records of the meeting will be available via www.facadatabase.gov under the Commission on Civil Rights, Maine Advisory Committee link (http://www.facadatabase.gov/committee/meetings.aspx?cid=252). Persons interested in the work of this Committee are directed to the Commission's website, http://www.usccr.gov, or may contact the Regional Programs Unit Office at the above email or street address.

    Agenda Welcome and Roll Call Discussion: Voting Rights in Maine Public Comment Future Plans and Actions Adjournment

    Exceptional Circumstance: Pursuant to 41 CFR 102-3.150, the notice for this meeting is given less than 15 calendar days prior to the meeting because of the exceptional circumstance of this Committee doing work on the FY 2018 statutory enforcement report.

    Dated: February 22, 2018. David Mussatt, Supervisory Chief, Regional Programs Unit.
    [FR Doc. 2018-03910 Filed 2-26-18; 8:45 am] BILLING CODE P
    DEPARTMENT OF COMMERCE International Trade Administration [A-351-825; A-351-847] Stainless Steel Bar From Brazil; and Certain Carbon and Alloy Steel Cut-to-Length Plate From Brazil: Correction to the Opportunity To Request Administrative Review Notice AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    FOR FURTHER INFORMATION CONTACT:

    Brenda E. Waters, AD/CVD Operations, Customs Liaison Unit, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-4735.

    SUPPLEMENTARY INFORMATION:

    Background

    On February 1, 2018, the Department published its opportunity to request administrative review of the antidumping duty orders and incorrectly listed the case number for stainless steel bar from Brazil and inadvertently listed the wrong period of review (POR) for certain carbon and alloy steel cut-to-length plate from Brazil. The correct case number for stainless steel bar from Brazil is A-351-825; and the correct POR for certain carbon and alloy steel cut-to-length plate from Brazil is September 22, 2016, through January 31, 2018.1

    1See Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity To Request Administrative Review, 83 FR 4639 (February 1, 2018).

    This notice serves as a correction notice.

    Dated: January 21, 2018. James Maeder, Associate Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations performing the duties of Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations.
    [FR Doc. 2018-03920 Filed 2-26-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-533-879, A-570-066] Polytetrafluoroethylene Resin From India and the People's Republic of China: Postponement of Preliminary Determinations in the Less-Than-Fair-Value Investigations AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    DATES:

    Applicable February 27, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Mark Kennedy at (202) 482-7883 (India), and Thomas Schauer at (202) 482-0410 (the People's Republic of China (China)), AD/CVD Operations, Office I, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230.

    SUPPLEMENTARY INFORMATION: Background

    On October 18, 2017, the Department of Commerce (Commerce) initiated less-than-fair-value (LTFV) investigations of imports of polytetrafluoroethylene (PTFE) resin from India and the People's Republic of China.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. The revised deadline for the preliminary results of these investigations is March 12, 2018.2

    1See Polytetrafluoroethylene Resin from India and the People's Republic of China: Initiation of Less-Than-Fair-Value Investigations, 82 FR 49587 (October 26, 2017) (Initiation Notice).

    2See Memorandum, “Deadlines Affected by the Shutdown of the Federal Government,” dated January 23, 2018 (Tolling Memorandum). All deadlines in this segment of the proceeding have been extended by 3 days.

    Postponement of Preliminary Determination

    Section 733(b)(1)(A) of the Tariff Act of 1930, as amended (the Act), requires Commerce to issue the preliminary determination in a LTFV investigation within 140 days after the date on which Commerce initiated the investigation. However, section 733(c)(1)(A)(b)(1) of the Act permits Commerce to postpone the preliminary determination until no later than 190 days after the date on which Commerce initiated the investigation if: (A) The petitione 3 makes a timely request for a postponement; or (B) Commerce concludes that the parties concerned are cooperating, that the investigation is extraordinarily complicated, and that additional time is necessary to make a preliminary determination. Under 19 CFR 351.205(e), the petitioner must submit a request for postponement 25 days or more before the scheduled date of the preliminary determination and must state the reasons for the request. Commerce will grant the request unless it finds compelling reasons to deny the request.

    3 The petitioner is The Chemours Company FC LLC.

    On February 12, 2018, the petitioner submitted a timely request that Commerce postpone the preliminary determination in the LTFV investigation.4 The petitioner stated that it requests postponement of the preliminary determinations of these investigations for the following reasons: the respondents selected for individual examination have requested and been granted extensions of time to file responses to the original questionnaire, which necessarily have delayed the filing of deficiency comments by the petitioner; and additionally, Commerce has only begun to issue supplemental questionnaires, and there will not be sufficient time for the petitioner to review and respond to these questionnaires prior to the current date of the preliminary determination.5

    4See Letters from the petitioner, “Polytetrafluoroethylene (PTFE) Resin from India: Petitioner's Request to Postpone the Antidumping Investigation Preliminary Determination,” dated February 12, 2018 and “Polytetrafluoroethylene (PTFE) Resin from the People's Republic of China: Petitioner's Request to Postpone the Antidumping Investigation Preliminary Determination,” dated February 12, 2018 (Requests for Postponement).

    5See Requests for Postponement at 2.

    For the reasons stated above and because there are no compelling reasons to deny the request, Commerce, in accordance with section 733(c)(1)(A) of the Act, is postponing the deadline for the preliminary determination by 50 days (i.e., 190 days after the date on which this investigation was initiated). As a result, Commerce will issue its preliminary determination no later than April 30, 2018. In accordance with section 735(a)(1) of the Act and 19 CFR 351.210(b)(1), the deadline for the final determination of this investigation will continue to be 75 days after the date of publication of the preliminary determination, unless postponed at a later date.

    This notice is issued and published pursuant to section 733(c)(2) of the Act and 19 CFR 351.205(f)(1).

    Dated: February 20, 2018. Christian Marsh, Deputy Assistant Secretary for Enforcement and Compliance.
    [FR Doc. 2018-03921 Filed 2-26-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-570-069, A-542-802, and A-549-835] Rubber Bands From the People's Republic of China, Sri Lanka, and Thailand: Initiation of Less-Than-Fair-Value Investigations AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    DATES:

    Applicable February 20, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Paul Stolz at (202) 482-4474 and Stephanie Berger at (202) 482-2483 (the People's Republic of China (China)); Cindy Robinson at (202) 482-3797 (Sri Lanka); and Laurel LaCivita at (202) 482-4243 and Joseph Degreenia at (202) 482-6030 (Thailand); AD/CVD Operations, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230.

    SUPPLEMENTARY INFORMATION:

    The Petitions

    On January 30, 2018, the U.S. Department of Commerce (Commerce) received antidumping duty (AD) and countervailing duty (CVD) Petitions concerning imports of rubber bands from China, Sri Lanka, and Thailand filed in proper form on behalf of Alliance Rubber Co. (Alliance, the petitioner).1 The petitioner is a domestic producer of rubber bands.2

    1See the petitioner's letter, “Petition for Imposition of Antidumping and Countervailing Duties on Rubber Bands from Thailand, China and Sri Lanka,” dated January 30, 2018 (the Petitions). For the purposes of the instant notice, all mentions of `the Petitions,' herein, refer specifically to the AD Petitions.

    2See Volume I of the Petitions, at 5-6.

    On February 2 and February 12, 2018, Commerce requested supplemental information pertaining to certain areas of the AD Petitions.3 The petitioner filed responses to these requests on February 8 and February 13, 2018.4 On February 16, 2018, based on a telephone conversation between Commerce and counsel to the petitioner, the petitioner agreed to certain clarifications to the scope.5

    3See Commerce's letters, “Petition for the Imposition of Antidumping and Countervailing Duties on Imports of Rubber Bands from the People's Republic of China, Sri Lanka, and Thailand: Supplemental Questions” (General Issues Supplemental Questionnaire); “Petition for the Imposition of Antidumping Duties on Imports of Rubber Bands from the People's Republic of China: Supplemental Questions” (China AD Supplemental Questionnaire); “Petition for the Imposition of Antidumping Duties on Imports of Rubber Bands from Sri Lanka: Supplemental Questions” (Sri Lanka AD Supplemental Questionnaire); and “Petition for the Imposition of Antidumping Duties on Imports of Rubber Bands from Thailand: Supplemental Questions” (Thailand AD Supplemental Questionnaire). All four of these documents are dated February 2, 2018. See also Commerce's memoranda, “Petitions for the Imposition of Antidumping and Countervailing Duties on Rubber Bands from the People's Republic of China, Sri Lanka, and Thailand: Phone Call with Counsel to the Petitioner” (Second General Issues Supplemental Questionnaire); “Petition for the Imposition of Antidumping Duties on Rubber Bands from the People's Republic of China: Phone Call with Counsel to the Petitioner” (China Second AD Supplemental Questionnaire); “Petition for the Imposition of Antidumping Duties on Rubber Bands from the Sri Lanka: Phone Call with Counsel to the Petitioner” (Sri Lanka Second AD Supplemental Questionnaire); and “Petition for the Imposition of Antidumping Duties on Rubber Bands from Thailand: Phone Call with Counsel to the Petitioner” (Thailand Second AD Supplemental Questionnaire). All four of these documents are dated February 12, 2018.

    4See the petitioner's separate letters letters regarding General Issues, China, Sri Lanka and Thailand, each entitled, “Petition for the Imposition of Antidumping and Countervailing Duties on Rubber Bands from Thailand, China and Sri Lanka—Responses to Supplemental Questionnaires” (respectively, General Issues Supplement, Sri Lanka AD Supplement, China AD Supplement, and Thailand AD Supplement). All four of these documents are dated February 8, 2018. See also the petitioner's separate letters regarding General Issues, China, Sri Lanka, and Thailand, each entitled, “Petition for the Imposition of Antidumping and Countervailing Duties on Rubber Bands from Thailand, China and Sri Lanka—Supplemental Responses to Supplemental Questionnaires: Responses of Petitioner Alliance Rubber Co. to Department of Commerce's February 12, 2018 General Issues Questionnaire” (respectively, Second General Issues Supplement, Second China AD Supplement, Second Sri Lanka AD Supplement, and Second Thailand AD Supplement). All four of these documents are dated February 13, 2018.

    5See memorandum, “Phone Call with Counsel to the Petitioner Regarding Scope Clarification,” dated February 16, 2018 (Scope Clarification Memorandum).

    In accordance with section 732(b) of the Tariff Act of 1930, as amended (the Act), the petitioner alleges that imports of rubber bands from China, Sri Lanka, and Thailand are being, or are likely to be, sold in the United States at less than fair value within the meaning of section 731 of the Act, and that such imports are materially injuring, or threatening material injury to, the domestic industry producing rubber bands in the United States. Consistent with section 732(b)(1) of the Act, the Petitions are accompanied by information reasonably available to the petitioner supporting its allegations.

    Commerce finds that the petitioner filed the Petitions on behalf of the domestic industry because the petitioner is an interested party as defined in section 771(9)(C) of the Act. Commerce also finds that the petitioner demonstrated sufficient industry support with respect to the initiation of the AD investigations that the petitioner is requesting.6

    6See the “Determination of Industry Support for the Petitions” section, infra.

    Periods of Investigation

    Because the Petitions were filed on January 30, 2018, pursuant to 19 CFR 351.204(b)(1), the period of investigation (POI) for the Sri Lanka and Thailand investigations is January 1, 2017, through December 31, 2017. Because China is a non-market economy (NME) country, pursuant to 19 CFR 351.204(b)(1), the POI for the China investigation is July 1, 2017, through December 31, 2017.

    Scope of the Investigations

    The products covered by these investigations are rubber bands from China, Sri Lanka, and Thailand. For a full description of the scope of these investigations, see the Appendix to this notice.

    Comments on Scope of the Investigations

    During our review of the Petitions, Commerce issued questions to, and received responses from, the petitioner pertaining to the proposed scope to ensure that the scope language in the Petitions is an accurate reflection of the products for which the domestic industry is seeking relief.7 As a result of these exchanges, the scope of the Petitions was modified to clarify the description of merchandise covered by the Petitions. The description of the merchandise covered by this initiation, as described in the Appendix to this notice, reflects these clarifications.

    7See General Issues Supplemental Questionnaire, at 3-4 and Second General Issues Supplemental Questionnaire; see also General Issues Supplement at 4-6, and Second General Issues Supplement at 1; and Scope Clarification Memorandum.

    As discussed in the preamble to Commerce's regulations, we are setting aside a period for interested parties to raise issues regarding product coverage (scope).8 Commerce will consider all comments received from interested parties and, if necessary, will consult with interested parties prior to the issuance of the preliminary determinations. If scope comments include factual information,9 all such factual information should be limited to public information. To facilitate preparation of its questionnaires, Commerce requests that all interested parties submit such comments by 5:00 p.m. Eastern Time (ET) on March 12, 2018, which is 20 calendar days from the signature date of this notice. Any rebuttal comments, which may include factual information, must be filed by 5:00 p.m. ET on March 22, 2018, which is 10 calendar days from the initial comments deadline.10

    8See Antidumping Duties; Countervailing Duties; Final Rule, 62 FR 27296, 27323 (May 19, 1997).

    9See 19 CFR 351.102(b)(21) (defining “factual information”).

    10See 19 CFR 351.303(b).

    Commerce requests that any factual information the parties consider relevant to the scope of the investigations be submitted during this time period. However, if a party subsequently finds that additional factual information pertaining to the scope of the investigations may be relevant, the party may contact Commerce and request permission to submit the additional information. All such comments must be filed on the records of each of the concurrent AD and CVD investigations, in accordance with the filing requirements, discussed immediately below.

    Filing Requirements

    All submissions to Commerce must be filed electronically using Enforcement and Compliance's Antidumping Duty and Countervailing Duty Centralized Electronic Service System (ACCESS).11 An electronically filed document must be received successfully in its entirety by the time and date it is due. Documents exempted from the electronic submission requirements must be filed manually (i.e., in paper form) with Enforcement and Compliance's APO/Dockets Unit, Room 18022, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230, and stamped with the date and time of receipt by the applicable deadlines.

    11See Antidumping and Countervailing Duty Proceedings: Electronic Filing Procedures; Administrative Protective Order Procedures, 76 FR 39263 (July 6, 2011); see also Enforcement and Compliance; Change of Electronic Filing System Name, 79 FR 69046 (November 20, 2014) for details of Commerce's electronic filing requirements, effective August 5, 2011. Information on help using ACCESS can be found at https://access.trade.gov/help.aspx and a handbook can be found at https://access.trade.gov/help/Handbook%20on%20Electronic%20Filling%20Procedures.pdf.

    Comments on Product Characteristics for AD Questionnaires

    Commerce requests comments from interested parties regarding the appropriate physical characteristics of rubber bands to be reported in response to Commerce's AD questionnaires. This information will be used to identify the key physical characteristics of the merchandise under consideration in order to report the relevant costs of production accurately as well as to develop appropriate product-comparison criteria.

    Interested parties may provide any information or comments that they feel are relevant to the development of an accurate list of physical characteristics. Specifically, they may provide comments as to which characteristics are appropriate to use as: (1) General product characteristics, and (2) product-comparison criteria. We note that it is not always appropriate to use all product characteristics as product-comparison criteria. We base product-comparison criteria on meaningful commercial differences among products. In other words, although there may be some physical product characteristics utilized by manufacturers to describe rubber bands, it may be that only a select few product characteristics take into account commercially meaningful physical characteristics. In addition, interested parties may comment on the order in which the physical characteristics should be used in matching products. Generally, Commerce attempts to list the most important physical characteristics first and the least important characteristics last.

    In order to consider the suggestions of interested parties in developing and issuing the AD questionnaires, all product characteristics comments must be filed by 5:00 p.m. ET on March 12, 2018. Any rebuttal comments must be filed by 5:00 p.m. ET on March 19, 2018. All comments and submissions to Commerce must be filed electronically using ACCESS, as explained above, on the records of the China, Sri Lanka, and Thailand less-than-fair-value investigations.

    Determination of Industry Support for the Petitions

    Section 732(b)(1) of the Act requires that a petition be filed on behalf of the domestic industry. Section 732(c)(4)(A) of the Act provides that a petition meets this requirement if the domestic producers or workers who support the petition account for: (i) At least 25 percent of the total production of the domestic like product; and (ii) more than 50 percent of the production of the domestic like product produced by that portion of the industry expressing support for, or opposition to, the petition. Moreover, section 732(c)(4)(D) of the Act provides that, if the petition does not establish support of domestic producers or workers accounting for more than 50 percent of the total production of the domestic like product, Commerce shall: (i) Poll the industry or rely on other information in order to determine if there is support for the petition, as required by subparagraph (A); or (ii) determine industry support using a statistically valid sampling method to poll the “industry.”

    Section 771(4)(A) of the Act defines the “industry” as the producers as a whole of a domestic like product. Thus, to determine whether a petition has the requisite industry support, the statute directs Commerce to look to producers and workers who produce the domestic like product. The International Trade Commission (ITC), which is responsible for determining whether “the domestic industry” has been injured, must also determine what constitutes a domestic like product in order to define the industry. While both Commerce and the ITC must apply the same statutory definition regarding the domestic like product,12 they do so for different purposes and pursuant to a separate and distinct authority. In addition, Commerce's determination is subject to limitations of time and information. Although this may result in different definitions of the like product, such differences do not render the decision of either agency contrary to law.13

    12See section 771(10) of the Act.

    13See USEC, Inc. v. United States, 132 F. Supp. 2d 1, 8 (CIT 2001) (citing Algoma Steel Corp., Ltd. v. United States, 688 F. Supp. 639, 644 (CIT 1988), aff'd 865 F.2d 240 (Fed. Cir. 1989)).

    Section 771(10) of the Act defines the domestic like product as “a product which is like, or in the absence of like, most similar in characteristics and uses with, the article subject to an investigation under this title.” Thus, the reference point from which the domestic like product analysis begins is “the article subject to an investigation” (i.e., the class or kind of merchandise to be investigated, which normally will be the scope as defined in the Petitions).

    With regard to the domestic like product, the petitioner does not offer a definition of the domestic like product distinct from the scope of the Petitions. Based on our analysis of the information submitted on the record, we have determined that rubber bands, as defined in the scope, constitute a single domestic like product, and we have analyzed industry support in terms of that domestic like product.14

    14 For a discussion of the domestic like product analysis, see Antidumping Duty Investigation Initiation Checklist: Rubber Bands from China (China AD Initiation Checklist), at Attachment II, Analysis of Industry Support for the Antidumping and Countervailing Duty Petitions Covering Rubber Bands from the People's Republic of China, Sri Lanka, and Thailand (Attachment II); Antidumping Duty Investigation Initiation Checklist: Rubber Bands from Sri Lanka (Sri Lanka AD Initiation Checklist), at Attachment II; and Antidumping Duty Investigation Initiation Checklist: Rubber Bands from Thailand (Thailand AD Initiation Checklist), at Attachment II. These checklists are dated concurrently with, and hereby adopted by, this notice and on file electronically via ACCESS. Access to documents filed via ACCESS is also available in the Central Records Unit, Room B8024 of the main Department of Commerce building.

    In determining whether the petitioner has standing under section 732(c)(4)(A) of the Act, we considered the industry support data contained in the Petitions with reference to the domestic like product as defined in the “Scope of the Investigations,” in the Appendix to this notice. To establish industry support, the petitioner provided its own net sales values of the domestic like product in 2017, and compared this to the estimated total sales values of the domestic like product for the entire domestic industry.15 Because total industry production data for the domestic like product for 2017 are not reasonably available to the petitioner, and the petitioner has established that sales values and shipments are a reasonable proxy for production data,16 we have relied on the data the petitioner provided for purposes of measuring industry support.17

    15See General Issues Supplement, at 8 and GEN-10S; see also Second General Issues Supplement, at 2-3.

    16See Second General Issues Supplement, at 2-3.

    17Id. For further discussion, see China AD Initiation Checklist, at Attachment II; Sri Lanka AD Initiation Checklist, at Attachment II; and Thailand AD Initiation Checklist, at Attachment II.

    Our review of the data provided in the Petitions, the General Issues Supplement, the Second General Issues Supplement, and other information readily available to Commerce indicates that the petitioner has established industry support for the Petitions.18 First, the Petitions established support from domestic producers (or workers) accounting for more than 50 percent of the total production of the domestic like product and, as such, Commerce is not required to take further action in order to evaluate industry support (e.g., polling).19 Second, the domestic producers (or workers) have met the statutory criteria for industry support under section 732(c)(4)(A)(i) of the Act because the domestic producers (or workers) who support the Petitions account for at least 25 percent of the total production of the domestic like product.20 Finally, the domestic producers (or workers) have met the statutory criteria for industry support under section 732(c)(4)(A)(ii) of the Act because the domestic producers (or workers) who support the Petitions account for more than 50 percent of the production of the domestic like product produced by that portion of the industry expressing support for, or opposition to, the Petitions.21 Accordingly, Commerce determines that the Petitions were filed on behalf of the domestic industry within the meaning of section 732(b)(1) of the Act.

    18See China AD Initiation Checklist, at Attachment II; Sri Lanka AD Initiation Checklist, at Attachment II; and Thailand AD Initiation Checklist, at Attachment II.

    19See section 732(c)(4)(D) of the Act; see also China AD Initiation Checklist, at Attachment II; Sri Lanka AD Initiation Checklist, at Attachment II; and Thailand AD Initiation Checklist, at Attachment II.

    20See China AD Initiation Checklist, at Attachment II; Sri Lanka AD Initiation Checklist, at Attachment II; and Thailand AD Initiation Checklist, at Attachment II.

    21Id.

    Commerce finds that the petitioner filed the Petitions on behalf of the domestic industry because it is an interested party as defined in section 771(9)(C) of the Act, and it has demonstrated sufficient industry support with respect to the AD investigations that it is requesting that Commerce initiate.22

    22Id.

    Allegations and Evidence of Material Injury and Causation

    The petitioner alleges that the U.S. industry producing the domestic like product is being materially injured, or is threatened with material injury, by reason of the imports of the subject merchandise sold at less than normal value (NV). In addition, the petitioner alleges that subject imports exceed the negligibility threshold provided for under section 771(24)(A) of the Act.23

    23See General Issues Supplement, at 9 and Exhibit B.

    The petitioner contends that the industry's injured condition is illustrated by a significant and increasing volume of subject imports, reduced market share, underselling and price depression or suppression, lost sales and revenues, and a negative impact on the domestic industry's financial performance.24 We have assessed the allegations and supporting evidence regarding material injury, threat of material injury, and causation, and we have determined that these allegations are properly supported by adequate evidence, and meet the statutory requirements for initiation.25

    24See Volume I of the Petitions, at 16-19, 25-47 and Exhibits GEN-3 through GEN-8, GEN-10 and GEN-12; see also General Issues Supplement, at 8-16 and Exhibits A, B, and GEN-10S; and Second General Issues Supplement, at 3 and Exhibit A.

    25See China AD Initiation Checklist, at Attachment III, “Analysis of Allegations and Evidence of Material Injury and Causation for the Antidumping and Countervailing Duty Petitions Covering Rubber Bands from the People's Republic of China, Sri Lanka, and Thailand” (Attachment III); see also Sri Lanka AD Initiation Checklist, at Attachment III; see also Thailand AD Initiation Checklist, at Attachment III.

    Allegations of Sales at Less Than Fair Value

    The following is a description of the allegations of sales at less than fair value upon which Commerce based its decision to initiate AD investigations of imports of rubber bands from China, Sri Lanka, and Thailand. The sources of data for the deductions and adjustments relating to U.S. price and NV are discussed in greater detail in the country-specific initiation checklists.

    Export Price

    For China, Sri Lanka, and Thailand, the petitioners based export price (EP) on pricing information or price quotes for rubber bands produced in, and exported from, those countries and sold or offered for sale in the United States.26

    26See China AD Initiation Checklist, Sri Lanka AD Initiation Checklist, and Thailand AD Initiation Checklist.

    Where appropriate, the petitioner made deductions from U.S. price consistent with the terms of sale, as applicable.27

    27Id.

    Normal Value

    For Sri Lanka and Thailand, the petitioner was unable to obtain home market or third-country prices for rubber bands; therefore, the petitioner calculated normal value based on constructed value (CV) pursuant to section 773(a)(4) of the Act. See the section “Normal Value Based on Constructed Value” below.28

    28 In accordance with section 505(a) of the Trade Preferences Extension Act of 2015, amending section 773(b)(2) of the Act, for these investigations, Commerce will request information necessary to calculate the CV and cost of production (COP) to determine whether there are reasonable grounds to believe or suspect that sales of the foreign like product have been made at prices that represent less than the COP of the product. Commerce no longer requires a COP allegation to conduct this analysis.

    With respect to China, Commerce considers China to be an NME country.29 In accordance with section 771(18)(C)(i) of the Act, any determination that a foreign country is an NME country shall remain in effect until revoked by Commerce. Therefore, we continue to treat China as an NME country for purposes of the initiation of this investigation. Accordingly, NV in China is appropriately based on factors of production (FOPs) valued in a surrogate market economy country, in accordance with section 773(c) of the Act.30 In the course of this investigation, all parties, and the public, will have the opportunity to provide relevant information related to the granting of separate rates to individual exporters.

    29See Antidumping Duty Investigation of Certain Aluminum Foil from the People's Republic of China: Affirmative Preliminary Determination of Sales at Less-Than-Fair Value and Postponement of Final Determination, 82 FR 50858, 50861 (November 2, 2017), and accompanying decision memorandum, China's Status as a Non-Market Economy.

    30See China AD Initiation Checklist.

    The petitioner claims that Thailand is an appropriate surrogate country for China because: (1) Commerce has evaluated the per capita gross domestic product (GDP) of Thailand in numerous cases and determined that Thailand is at the level of economic development comparable to China based on per-capita Gross National Income; (2) Thailand is a significant producer of comparable merchandise as well as a significant exporter of subject merchandise; and (3) the data for valuing FOPs, factory overhead, selling, general and administrative (SG&A) expenses and profit are publicly available, current, and reliable.31 Based on the information provided by the petitioner, we believe it is appropriate to use Thailand as a surrogate country for initiation purposes.

    31See Volume III of Petitions, at 3.

    Interested parties will have the opportunity to submit comments regarding surrogate country selection and, pursuant to 19 CFR 351.301(c)(3)(i), will be provided an opportunity to submit publicly available information to value FOPs within 30 days before the scheduled date of the preliminary determination.

    Factors of Production

    Because information regarding the volume of inputs consumed by Chinese producers/exporters was not reasonably available, the petitioner relied on its actual consumption of direct materials, direct labor, energy, scrap offset, and packing for comparable rubber bands, adjusted for known differences in usage between the United States and China.32 The petitioner valued the estimated FOPs using surrogate values from Thailand,33 and used the average POI exchange rate to convert the data to U.S. dollars.34

    32Id. at 1 and 4 and Exhibit AD-CH-2.

    33Id. at Exhibit AD-CH-3; see also China AD Supplement, at Exhibit AD-CH-S3; and Second China AD Supplement, at Exhibit AD-CH-SS3.

    34Id.

    Normal Value Based on Constructed Value

    As noted above, for Sri Lanka and Thailand, the petitioner was unable to obtain home market or third-country prices for rubber bands; therefore, the petitioner based NV on CV pursuant to section 773(a)(4) of the Act. Pursuant to section 773(b)(3) of the Act, CV consists of the cost of manufacturing (COM); selling, general and administrative (SG&A) expenses; financial expenses; profit; and packing expenses.

    For Sri Lanka, the petitioner calculated the COM based on its own input factors of production and usage rates for raw materials, energy, packing and scrap offset. The input factors of production were valued using publicly available data on costs specific to Sri Lanka, where available, and the petitioner's cost experience. For Sri Lanka, labor and energy costs were valued using publicly available sources from Sri Lanka and the petitioner's cost experience.35 The petitioner calculated factory overhead, SG&A, financial expenses and profit based on the experience of a Sri Lankan producer of comparable merchandise.36

    35See Sri Lanka AD Initiation Checklist.

    36Id.

    For Thailand, the petitioner calculated the COM based on its own input factors of production and usage rates for raw materials, labor, energy, packing, and a scrap offset.37 The input factors of production were valued using publicly available data on costs specific to Thailand, during the proposed POI.38 Specifically, the prices for raw material and packing inputs were based on publicly available import data for Thailand.39 Labor and energy costs were valued using publicly available sources for Thailand.40 The petitioner calculated factory overhead, SG&A, and profit for Thailand based on the experience of a Thai producer of rubber bands.41

    37See Thailand AD Initiation Checklist.

    38Id.

    39Id.

    40Id.

    41Id.

    Fair Value Comparisons

    Based on the data provided by the petitioner, there is reason to believe that imports of rubber bands from China, Sri Lanka, and Thailand are being, or are likely to be, sold in the United States at less than fair value. Based on comparisons of EP to NV in accordance with sections 772 and 773 of the Act, the estimated dumping margins for rubber bands for each of the countries covered by this initiation are as follows: (1) China—27.27 percent; 42 , (2) Sri Lanka—56.54 to 133.13 percent; 43 , and (3) Thailand—28.92 to 78.36 percent.44

    42See China AD Initiation Checklist.

    43See Sri Lanka AD Initiation Checklist.

    44See Thailand AD Initiation Checklist.

    Initiation of Less-Than-Fair-Value Investigations

    Based upon the examination of the Petitions, we find that the Petitions meet the requirements of section 732 of the Act. Therefore, we are initiating AD investigations to determine whether imports of rubber bands from China, Sri Lanka, and Thailand are being, or are likely to be, sold in the United States at less than fair value. In accordance with section 733(b)(1)(A) of the Act and 19 CFR 351.205(b)(1), unless postponed, we will make our preliminary determinations no later than 140 days after the date of this initiation.

    Under the Trade Preferences Extension Act of 2015, numerous amendments to the AD and CVD laws were made.45 The 2015 law does not specify dates of application for those amendments. On August 6, 2015, Commerce published an interpretative rule, in which it announced the applicability dates for each amendment to the Act, except for amendments contained in section 771(7) of the Act, which relate to determinations of material injury by the ITC.46 The amendments to sections 771(15), 773, 776, and 782 of the Act are applicable to all determinations made on or after August 6, 2015, and, therefore, apply to these AD investigations.47

    45See Trade Preferences Extension Act of 2015, Public Law 114-27, 129 Stat. 362 (2015).

    46See Dates of Application of Amendments to the Antidumping and Countervailing Duty Laws Made by the Trade Preferences Extension Act of 2015, 80 FR 46793 (August 6, 2015).

    47Id. at 46794-95. The 2015 amendments may be found at https://www.congress.gov/bill/114th-congress/house-bill/1295/text/pl.

    Respondent Selection

    In the Petitions, the petitioner named 12, four, and 22 producers/exporters, respectively, as accounting for the majority of exports of rubber bands products to the United States from China, Sri Lanka, and Thailand.48 With regard to China, in accordance with our standard practice for respondent selection in cases involving NME countries, we intend to issue quantity and value (Q&V) questionnaires to each potential respondent and, if necessary, base respondent selection on the responses received. In addition, Commerce will post the Q&V questionnaire along with filing instructions on the Enforcement and Compliance website at http://www.trade.gov/enforcement/news.asp.

    48See Volume I of the Petitions, at Exhibit GEN-2. See also General Issues Supplement at 2-3.

    Exporters/producers of rubber bands from China that do not receive Q&V questionnaires by mail may still submit a response to the Q&V questionnaire and can obtain a copy from the Enforcement and Compliance website. The Q&V response must be submitted by all exporters/producers from China no later than 5:00 p.m. E.T. on March 6, 2018, which is two weeks from the signature date of this notice. All Q&V responses must be filed electronically via ACCESS.

    With regard to Sri Lanka and Thailand, following standard practice in AD investigations involving market economy countries, in the event Commerce determines that the number of companies is large and it cannot individually examine each company based upon Commerce's resources, where appropriate, Commerce intends to select respondents based on U.S. Customs and Border Protection (CBP) data for U.S. imports under the appropriate Harmonized Tariff Schedule of the United States numbers listed with the scope in the Appendix, below. We also intend to release the CBP data under Administrative Protective Order (APO) to all parties with access to information protected by APO on the record within five business days of publication of this Federal Register notice. Comments regarding the CBP data and respondent selection should be submitted seven calendar days after the placement of the CBP data on the record of these investigations. Parties wishing to submit rebuttal comments should submit those comments five calendar days after the deadline for the initial comments. Comments must be filed electronically using ACCESS. An electronically-filed document must be received successfully in its entirety by Commerce's electronic records system, ACCESS, by 5:00 p.m. ET by the dates noted above. We intend to make our decision regarding respondent selection within 20 days of publication of this notice.

    Separate Rates

    In order to obtain separate-rate status in an NME investigation, exporters and producers must submit a separate-rate application.49 The specific requirements for submitting a separate-rate application in the China investigation are outlined in detail in the application itself, which is available on Commerce's website at http://enforcement.trade.gov/nme/nme-sep-rate.html. The separate-rate application will be due 30 days after publication of this initiation notice.50 Exporters and producers who submit a separate-rate application and have been selected as mandatory respondents will be eligible for consideration for separate-rate status only if they respond to all parts of Commerce's AD questionnaire as mandatory respondents. Commerce requires that companies from China submit a response to both the Q&V questionnaire and the separate-rate application by the respective deadlines in order to receive consideration for separate-rate status. Companies not filing a timely Q&V response will not receive separate-rate consideration.

    49See Policy Bulletin 05.1: Separate-Rates Practice and Application of Combination Rates in Antidumping Investigation involving Non-Market Economy Countries (April 5, 2005), available at http://enforcement.trade.gov/policy/bull05-1.pdf (Policy Bulletin 05.1).

    50 Although in some past investigations this deadline was 60 days, consistent with 19 CFR 351.301(a), which states that “the Secretary may request any person to submit factual information at any time during a proceeding,” this deadline is now 30 days.

    Use of Combination Rates

    Commerce will calculate combination rates for certain respondents that are eligible for a separate rate in an NME investigation. The Separate Rates and Combination Rates Bulletin states:

    {while} continuing the practice of assigning separate rates only to exporters, all separate rates that the Department will now assign in its NME Investigation will be specific to those producers that supplied the exporter during the period of investigation. Note, however, that one rate is calculated for the exporter and all of the producers which supplied subject merchandise to it during the period of investigation. This practice applies both to mandatory respondents receiving an individually calculated separate rate as well as the pool of non-investigated firms receiving the weighted-average of the individually calculated rates. This practice is referred to as the application of “combination rates” because such rates apply to specific combinations of exporters and one or more producers. The cash-deposit rate assigned to an exporter will apply only to merchandise both exported by the firm in question and produced by a firm that supplied the exporter during the period of investigation.51

    51See Policy Bulletin 05.1 at 6 (emphasis added).

    Distribution of Copies of the Petitions

    In accordance with section 732(b)(3)(A)(i) of the Act and 19 CFR 351.202(f), copies of the public version of the Petitions have been provided to the governments of China, Sri Lanka, and Thailand via ACCESS. To the extent practicable, we will attempt to provide a copy of the public version of the Petitions to each exporter named in the Petitions, as provided under 19 CFR 351.203(c)(2).

    ITC Notification

    We will notify the ITC of our initiation, as required by section 732(d) of the Act.

    Preliminary Determinations by the ITC

    The ITC will preliminarily determine, within 45 days after the date on which the Petitions were filed, whether there is a reasonable indication that imports of rubber bands from China, Sri Lanka, and/or Thailand are materially injuring or threatening material injury to a U.S. industry.52 A negative ITC determination for any country will result in the investigation being terminated with respect to that country.53 Otherwise, the investigations will proceed according to statutory and regulatory time limits.

    52See section 733(a) of the Act.

    53Id.

    Submission of Factual Information

    Factual information is defined in 19 CFR 351.102(b)(21) as: (i) Evidence submitted in response to questionnaires; (ii) evidence submitted in support of allegations; (iii) publicly available information to value factors under 19 CFR 351.408(c) or to measure the adequacy of remuneration under 19 CFR 351.511(a)(2); (iv) evidence placed on the record by Commerce; and (v) evidence other than factual information described in (i)-(iv). Any party, when submitting factual information, must specify under which subsection of 19 CFR 351.102(b)(21) the information is being submitted 54 and, if the information is submitted to rebut, clarify, or correct factual information already on the record, to provide an explanation identifying the information already on the record that the factual information seeks to rebut, clarify, or correct.55 Time limits for the submission of factual information are addressed in 19 CFR 351.301, which provides specific time limits based on the type of factual information being submitted. Interested parties should review the regulations prior to submitting factual information in these investigations.

    54See 19 CFR 351.301(b).

    55See 19 CFR 351.301(b)(2).

    Extensions of Time Limits

    Parties may request an extension of time limits before the expiration of a time limit established under 19 CFR 351.301, or as otherwise specified by the Secretary. In general, an extension request will be considered untimely if it is filed after the expiration of the time limit established under 19 CFR 351.301. For submissions that are due from multiple parties simultaneously, an extension request will be considered untimely if it is filed after 10:00 a.m. ET on the due date. Under certain circumstances, we may elect to specify a different time limit by which extension requests will be considered untimely for submissions which are due from multiple parties simultaneously. In such a case, we will inform parties in the letter or memorandum setting forth the deadline (including a specified time) by which extension requests must be filed to be considered timely. An extension request must be made in a separate, stand-alone submission; under limited circumstances we will grant untimely-filed requests for the extension of time limits. Parties should review Extension of Time Limits; Final Rule, 78 FR 57790 (September 20, 2013), available at http://www.thefederalregister.org/fdsys/pkg/FR-2013-09-20/html/2013-22853.htm, prior to submitting factual information in these investigations.

    Certification Requirements

    Any party submitting factual information in an AD or CVD proceeding must certify to the accuracy and completeness of that information.56 Parties are hereby reminded that revised certification requirements are in effect for company/government officials, as well as their representatives. Investigations initiated on the basis of petitions filed on or after August 16, 2013, and other segments of any AD or CVD proceedings initiated on or after August 16, 2013, should use the formats for the revised certifications provided at the end of the Final Rule. 57 Commerce intends to reject factual submissions if the submitting party does not comply with applicable revised certification requirements.

    56See section 782(b) of the Act.

    57See Certification of Factual Information to Import Administration during Antidumping and Countervailing Duty Proceedings, 78 FR 42678 (July 17, 2013) (Final Rule); see also frequently asked questions regarding the Final Rule, available at http://enforcement.trade.gov/tlei/notices/factual_info_final_rule_FAQ_07172013.pdf.

    Notification to Interested Parties

    Interested parties must submit applications for disclosure under APO in accordance with 19 CFR 351.305. On January 22, 2008, Commerce published Antidumping and Countervailing Duty Proceedings: Documents Submission Procedures; APO Procedures, 73 FR 3634 (January 22, 2008). Parties wishing to participate in these investigations should ensure that they meet the requirements of these procedures (e.g., the filing of letters of appearance as discussed at 19 CFR 351.103(d)).

    This notice is issued and published pursuant to sections 732(c)(2) and 777(i) of the Act, and 19 CFR 351.203(c).

    Dated: February 20, 2018. Christian Marsh, Deputy Assistant Secretary for Enforcement and Compliance. Appendix Scope of the Investigations

    The products subject to these investigations are bands made of vulcanized rubber, with a flat length, as actually measured end-to-end by the band lying flat, no less than 1/2 inch and no greater than 10 inches; with a width, which measures the dimension perpendicular to the length, actually of at least 3/64 inch and no greater than 2 inches; and a wall thickness actually from 0.020 inch to 0.125 inch. Vulcanized rubber has been chemically processed into a more durable material by the addition of sulfur or other equivalent curatives or accelerators. Subject products are included regardless of color or inclusion of printed material on the rubber band's surface, including but not limited to, rubber bands with printing on them, such as a product name, advertising, or slogan, and printed material (e.g., a tag) fastened to the rubber band by an adhesive or another temporary type of connection. The scope includes vulcanized rubber bands which are contained or otherwise exist in various forms and packages, such as, without limitation, vulcanized rubber bands included within a desk accessory set or other type of set or package, and vulcanized rubber band balls. The scope excludes products that consist of an elastomer loop and durable tag all-in-one, and bands that are being used at the time of import to fasten an imported product. Merchandise covered by these investigations is currently classified in the Harmonized Tariff Schedule of the United States (HTSUS) under subheading 4016.99.3510. Merchandise covered by the scope may also enter under HTSUS subheading 4016.99.6050. While the HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of the investigations is dispositive.

    [FR Doc. 2018-03923 Filed 2-26-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [C-549-836, C-570-070, C-542-803] Rubber Bands From Thailand, the People's Republic of China, and Sri Lanka: Initiation of Countervailing Duty Investigations AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    DATES:

    Applicable February 20, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Frances Veith at (202) 482-4295 or Shana Lee at (202) 482-6386 (Thailand), Kristen Johnson at (202) 482-4793 (China), and Patricia Tran at (202) 482-1503 (Sri Lanka), AD/CVD Operations, Office III, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230.

    SUPPLEMENTARY INFORMATION:

    The Petitions

    On January 30, 2018, the U.S. Department of Commerce (Commerce) received countervailing duty (CVD) petitions concerning imports of rubber bands from Thailand, the People's Republic of China (China), and Sri Lanka, filed in proper form on behalf of Alliance Rubber Co. (the petitioner).1 The CVD Petitions were accompanied by antidumping duty (AD) petitions concerning imports of rubber bands from Thailand, China, and Sri Lanka. The petitioner is a domestic producer of rubber bands.2

    1See Letter from the petitioner “Petition for the Imposition of Antidumping and Countervailing Duties: Rubber Bands from Thailand, China and Sri Lanka,” dated January 30, 2018 (Petitions).

    2Id. at Volume I of the Petitions at 1.

    On February 2, 2018, Commerce requested supplemental information pertaining to certain areas of the Petitions.3 The petitioner filed responses to these requests on February 8, 2018, which included revised scope language.4 On February 12, 2018, Commerce held a conference call with the petitioner to discuss the scope of the investigation, industry support, and injury.5 The petitioner filed a response to address issues discussed on the conference call on February 13, 2018.6 On February 16, 2018, based on a telephone conversation between Commerce and counsel to the petitioner, the petitioner made certain clarifications to the scope.7

    3See Letter from Commerce to the petitioner, “Petition for the Imposition of Countervailing Duties on Imports of Rubber Bands from Sri Lanka: Supplemental Questions,” (Sri Lanka CVD Petition Supplemental Questionnaire); “Petition for the Imposition of Antidumping and Countervailing Duties on Imports of Rubber Bands from the People's Republic of China, Sri Lanka, and Thailand: Supplemental Questions,” (General Issues Petition Supplemental Questionnaire); “Petition for the Imposition of Countervailing Duties on Imports of Rubber Bands from the People's Republic of China (China): Supplemental Questions,” (China CVD Petition Supplemental Questionnaire); “Petition for the Imposition of Countervailing Duties on Imports of Rubber Bands from Thailand: Supplemental Questions,” (Thailand CVD Petition Supplemental Questionnaire) dated February 2, 2018.

    4See Letter from petitioner to Commerce, “Petition for the Imposition of Antidumping and Countervailing Duties on Rubber Bands from Thailand, China and Sri Lanka—Responses to Supplemental Questionnaires,” dated February 8, 2018 (General Issues Supplemental Response, Thailand CVD Petition Supplemental Response, China CVD Petition Supplemental Response, and Sri Lanka CVD Petition Supplemental Response).

    5See Memorandum to the File, “Petition for the Imposition of Antidumping and Countervailing Duties on Rubber Bands from the People's Republic of China, Sri Lanka, and Thailand,” dated February 12, 2018 (Phone Memorandum).

    6See Letter from petitioner to Commerce, “Petition for the Imposition of Antidumping and Countervailing Duties on Rubber Bands from Thailand, China and Sri Lanka—Supplemental Responses to Supplemental Questionnaires,” dated February 13, 2018 (Second General Issues Supplemental Response).

    7See Memorandum to the File, “Phone Call with Counsel to the Petitioner Regarding Scope Clarification,” dated February 16, 2018 (Second Phone Memorandum).

    In accordance with section 702(b)(1) of the Tariff Act of 1930, as amended (the Act), the petitioner alleges that the Royal Thai Government (RTG), the Government of China (GOC), and the Government of Sri Lanka (GOSL) are providing countervailable subsidies, within the meaning of sections 701 and 771(5) of the Act, to producers of rubber bands in Thailand, China, and Sri Lanka, respectively, and imports of such products are materially injuring, or threatening material injury to, the domestic rubber bands industry in the United States. Consistent with section 702(b)(1) of the Act and 19 CFR 351.202(b), for those alleged programs on which we are initiating a CVD investigation, the Petitions are accompanied by information reasonably available to the petitioner supporting its allegations.

    Commerce finds that the petitioner filed the Petitions on behalf of the domestic industry because the petitioner is an interested party as defined in section 771(9)(C) of the Act. Commerce also finds that the petitioner demonstrated sufficient industry support necessary for the initiation of the requested CVD investigation.8

    8See “Determination of Industry Support for the Petitions” section, below.

    Periods of Investigation

    Because the Petitions were filed on January 30, 2018, the periods of investigation are January 1, 2017, through December 31, 2017.

    Scope of the Investigations

    The products covered by these investigations are rubber bands from Thailand, China, and Sri Lanka. For a full description of the scope of these investigations, see the “Scope of the Investigation,” in the Appendix to this notice.

    Comments on Scope of the Investigations

    During our review of the Petitions, Commerce issued questions to, and received responses from, the petitioner pertaining to the proposed scope to ensure that the scope language in the Petitions is an accurate reflection of the product for which the domestic industry is seeking relief.9 Commerce also held a conference call with the petitioner regarding the scope language.10 As a result of these exchanges, the scope of the Petitions was modified to clarify the description of merchandise covered by the Petitions.11 The description of the merchandise covered by this initiation, as described in the Appendix to this notice, reflects these clarifications.

    9See General Issues Supplemental Response.

    10See Phone Memorandum.

    11See General Issues Supplemental Response at 6.

    As discussed in the Preamble to Commerce's regulations, we are setting aside a period for interested parties to raise issues regarding product coverage (scope).12 Commerce will consider all comments received from interested parties and, if necessary, will consult with interested parties prior to the issuance of the preliminary determination. If scope comments include factual information, all such factual information should be limited to public information.13 To facilitate preparation of its questionnaires, Commerce requests all interested parties submit such comments by 5:00 p.m. Eastern Time (ET) on March 12, 2018 (20 calendar days from the signature date of this notice). Any rebuttal comments, which may include factual information, must be filed by 5:00 p.m. ET on March 22, 2018 (10 calendar days from the initial comments deadline).14

    12See Antidumping Duties; Countervailing Duties, Final Rule, 62 FR 27296, 27323 (May 19, 1997) (Preamble).

    13See 19 CFR 351.102(b)(21) (defining “factual information”).

    14See 19 CFR 351.303(b).

    Commerce requests that any factual information parties consider relevant to the scope of the investigations be submitted during this period. However, if a party subsequently finds that additional factual information pertaining to the scope of the investigations may be relevant, the party may contact Commerce and request permission to submit the additional information. All such submissions must be filed on the records of each of the concurrent AD and CVD investigations.

    Filing Requirements

    All submissions to Commerce must be filed electronically using Enforcement and Compliance's Antidumping Duty and Countervailing Duty Centralized Electronic Service System (ACCESS).15 An electronically filed document must be received successfully in its entirety by the time and date it is due. Documents exempted from the electronic submission requirements must be filed manually (i.e., in paper form) with Enforcement and Compliance's APO/Dockets Unit, Room 18022, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230, and stamped with the date and time of receipt by the applicable deadlines.

    15See Antidumping and Countervailing Duty Proceedings: Electronic Filing Procedures; Administrative Protective Order Procedures, 76 FR 39263 (July 6, 2011). See also Enforcement and Compliance: Change of Electronic Filing System Name, 79 FR 69046 (November 20, 2014) for details of Commerce's electronic filing requirements, which went into effect on August 5, 2011. Information on help using ACCESS can be found at https://access.trade.gov/help.aspx, and a handbook can be found at https://access.trade.gov/help/Handbook%20on%20Electronic%20Filling%20Procedures.pdf.

    Consultations

    Pursuant to sections 702(b)(4)(A)(i) and (ii) of the Act, Commerce notified representatives of the RTG, GOC, and GOSL of the receipt of the CVD Petitions, and provided them the opportunity for consultations with respect to the Petitions.16 Commerce held consultations with the GOC on February 7, 2018,17 the GOSL on February 14, 2018,18 and the RTG on February 14, 2018.19

    16See Letter from Erin Begnal, Director, AD/CVD Operations, Office III, to the Royal Thai Embassy, “Countervailing Duty Petition on Rubber Bands from Thailand: Invitation for Consultations to Discuss the Countervailing Duty Petition,” dated January 31, 2018; Letter from Erin Begnal, Director, AD/CVD Operations, Office III, to the Embassy of the People's Republic of China, “Countervailing Duty Petition on Rubber Bands from the People's Republic of China: Invitation for Consultations to Discuss the Countervailing Duty Petition,” dated January 30, 2018; and Letter from Erin Begnal, Director, AD/CVD Operations, Office III, to the Embassy of Sri Lanka, “Countervailing Duty Petition on Rubber Bands from Sri Lanka: Invitation for Consultations to Discuss the Countervailing Duty Petition,” dated January 30, 2018.

    17See Memorandum, “Countervailing Duty Petitions on Cast Iron Soil Pipe and Rubber Bands from the People's Republic of China: Consultations with Officials of the Government of China,” dated February 8, 2018.

    18See Memorandum, “Countervailing Duty Petition on Rubber Bands from Sri Lanka: Consultations with Officials of the Government of Sri Lanka,” dated February 14, 2018.

    19See Memorandum, “Consultations with Government Officials from the Royal Thai Embassy,” dated February 14, 2018.

    Determination of Industry Support for the Petitions

    Section 702(b)(1) of the Act requires that a petition be filed on behalf of the domestic industry. Section 702(c)(4)(A) of the Act provides that a petition meets this requirement if the domestic producers or workers who support the petition account for: (i) At least 25 percent of the total production of the domestic like product; and (ii) more than 50 percent of the production of the domestic like product produced by that portion of the industry expressing support for, or opposition to, the petition. Moreover, section 702(c)(4)(D) of the Act provides that, if the petition does not establish support of domestic producers or workers accounting for more than 50 percent of the total production of the domestic like product, Commerce shall: (i) Poll the industry or rely on other information in order to determine if there is support for the petition, as required by subparagraph (A); or (ii) determine industry support using a statistically valid sampling method to poll the “industry.”

    Section 771(4)(A) of the Act defines the “industry” as the producers, as a whole, of a domestic like product. Thus, to determine whether a petition has the requisite industry support, the statute directs Commerce to look to producers and workers who produce the domestic like product. The International Trade Commission (ITC), which is responsible for determining whether “the domestic industry” has been injured, must also determine what constitutes a domestic like product in order to define the industry. While both Commerce and the ITC must apply the same statutory definition regarding the domestic like product,20 they do so for different purposes and pursuant to a separate and distinct authority. In addition, Commerce's determination is subject to limitations of time and information. Although this may result in different definitions of the like product, such differences do not render the decision of either agency contrary to law.21

    20See section 771(10) of the Act.

    21See USEC, Inc. v. United States, 132 F. Supp. 2d 1, 8 (CIT 2001) (citing Algoma Steel Corp., Ltd. v. United States, 688 F. Supp. 639, 644 (CIT 1988), aff'd 865 F.2d 240 (Fed. Cir. 1989)).

    Section 771(10) of the Act defines the domestic like product as “a product which is like, or in the absence of like, most similar in characteristics and uses with, the article subject to an investigation under this title.” Thus, the reference point from which the domestic like product analysis begins is “the article subject to an investigation” (i.e., the class or kind of merchandise to be investigated, which normally will be the scope as defined in the Petition).

    With regard to the domestic like product, the petitioner does not offer a definition of the domestic like product distinct from the scope of the investigations. Based on our analysis of the information submitted on the record, we have determined that rubber bands, as defined in the scope, constitute a single domestic like product and we have analyzed industry support in terms of that domestic like product.22

    22 For a discussion of the domestic like product analysis, see Countervailing Duty Investigation Initiation Checklist: Rubber Bands from China (China CVD Initiation Checklist), at Attachment II, Analysis of Industry Support for the Antidumping and Countervailing Duty Petition Covering Rubber Bands from the People's Republic of China, Sri Lanka, and Thailand (Attachment II); Countervailing Duty Investigation Initiation Checklist: Rubber Bands from Sri Lanka (Sri Lanka CVD Initiation Checklist), at Attachment II; and Countervailing Duty Investigation Initiation Checklist: Rubber Bands from Thailand (Thailand CVD Initiation Checklist), at Attachment II. These checklists are dated concurrently with, and hereby adopted by, this notice and on file electronically via ACCESS. Access to documents filed via ACCESS is also available in the Central Records Unit, Room B8024 of the main Department of Commerce building.

    In determining whether the petitioner has standing under section 702(c)(4)(A) of the Act, we considered the industry support data contained in the Petitions with reference to the domestic like product as defined in the “Scope of the Investigations,” in the Appendix to this notice. To establish industry support, the petitioner provided its own net sales values of the domestic like product in 2017, and compared this to the estimated total sales value of the domestic like product for the entire domestic industry.23 Because total industry production data for the domestic like product for 2017 are not reasonably available to the petitioner, and the petitioner has established that sales values and shipments are a reasonably proxy for production data,24 we have relied on the data the petitioner provided for purposes of measuring industry support.25

    23See General Issues Supplemental Response, at 8 and GEN-10S; see also Second General Issues Supplemental Response, at 2-3.

    24See Second General Issues Supplemental Response, at 2-3.

    25Id. For further discussion, see China CVD Initiation Checklist, at Attachment II; Sri Lanka CVD Initiation Checklist, at Attachment II; and Thailand CVD Initiation Checklist, at Attachment II.

    Our review of the data provided in the Petitions, the General Issues Supplemental Response, the Second General Issues Supplemental Response, and other information readily available to Commerce indicates that the petitioner has established industry support for the Petitions.26 First, the Petitions established support from domestic producers (or workers) accounting for more than 50 percent of the total production of the domestic like product and, as such, Commerce is not required to take further action in order to evaluate industry support (e.g., polling).27 Second, the domestic producers (or workers) have met the statutory criteria for industry support under section 702(c)(4)(A)(i) of the Act because the domestic producers (or workers) who support the Petitions account for at least 25 percent of the total production of the domestic like product.28 Finally, the domestic producers (or workers) have met the statutory criteria for industry support under section 702(c)(4)(A)(ii) of the Act because the domestic producers (or workers) who support the Petitions account for more than 50 percent of the production of the domestic like product produced by that portion of the industry expressing support for, or opposition to, the Petitions.29 Accordingly, Commerce determines that the Petitions were filed on behalf of the domestic industry within the meaning of section 702(b)(1) of the Act.

    26See China CVD Initiation Checklist, at Attachment II; Sri Lanka CVD Initiation Checklist, at Attachment II; and Thailand CVD Initiation Checklist, at Attachment II.

    27See section 702(c)(4)(D) of the Act; see also China CVD Initiation Checklist, at Attachment II; Sri Lanka CVD Initiation Checklist, at Attachment II; and Thailand CVD Initiation Checklist, at Attachment II.

    28See China CVD Initiation Checklist, at Attachment II; Sri Lanka CVD Initiation Checklist, at Attachment II; and Thailand CVD Initiation Checklist, at Attachment II.

    29Id.

    Commerce finds that the petitioner filed the Petitions on behalf of the domestic industry because it is an interested party as defined in section 771(9)(C) of the Act, and it has demonstrated sufficient industry support with respect to the CVD investigations that it is requesting that Commerce initiate.30

    30Id.

    Injury Test

    Because China, Sri Lanka, and Thailand are “Subsidies Agreement Countries” within the meaning of section 701(b) of the Act, section 701(a)(2) of the Act applies to these investigations. Accordingly, the ITC must determine whether imports of the subject merchandise from China, Sri Lanka, and Thailand materially injure, or threaten material injury to, a U.S. industry.

    Allegations and Evidence of Material Injury and Causation

    The petitioner alleges that imports of the subject merchandise are benefitting from countervailable subsidies and that such imports are causing, or threaten to cause, material injury to the U.S. industry producing the domestic like product. In addition, the petitioner alleges that subject imports exceed the negligibility threshold provided for under section 771(24)(A) of the Act.31 In CVD petitions, section 771(24)(B) of the Act provides that imports of subject merchandise from developing and least developed countries must exceed the negligibility threshold of four percent. The petitioner demonstrates that imports from Thailand and Sri Lanka, which have been designated as developing and least developed countries under sections 771(36)(A) and 771(36)(B) of the Act, respectively, exceed the negligibility threshold of four percent.32

    31See General Issues Supplemental Response, at 9 and Exhibit B.

    32Id.

    The petitioner contends that the industry's injured condition is illustrated by a significant and increasing volume of subject imports; reduced market share; underselling and price depression or suppression; lost sales and revenues; and a negative impact on the domestic industry's financial performance.33 We have assessed the allegations and supporting evidence regarding material injury, threat of material injury, and causation, and we have determined that these allegations are properly supported by adequate evidence, and meet the statutory requirements for initiation.34

    33See Volume I of the Petition, at 16-19, 25-47 and Exhibits GEN-3 through GEN-8, GEN-10 and GEN-12; see also General Issues Supplemental Response, at 8-16 and Exhibits A, B, and GEN-10S; and Second General Issues Supplemental Response, at 3 and Exhibit A.

    34See China CVD Initiation Checklist, at Attachment III, Analysis of Allegations and Evidence of Material Injury and Causation for the Antidumping and Countervailing Duty Petition Covering Rubber Bands from the People's Republic of China, Sri Lanka, and Thailand (Attachment III); Sri Lanka CVD Initiation Checklist, at Attachment III; and Thailand CVD Initiation Checklist, at Attachment III.

    Initiation of CVD Investigations

    Based on the examination of the Petitions, we find that they meet the requirements of section 702 of the Act. Therefore, we are initiating CVD investigations to determine whether imports of rubber bands from Thailand, China, and Sri Lanka benefit from countervailable subsidies conferred by the RTG, GOC, and GOSL, respectively. In accordance with section 703(b)(1) of the Act and 19 CFR 351.205(b)(1), unless postponed, we will make our preliminary determinations no later than 65 days after the date of this initiation.

    Numerous amendments to the AD and CVD laws were made pursuant to the Trade Preferences Extension Act of 2015.35 The amendments to sections 776 and 782 of the Act are applicable to all determinations made on or after August 6, 2015, and, therefore, apply to these CVD investigations.36

    35See Trade Preferences Extension Act of 2015, Public Law 114-27, 129 Stat. 362 (2015). See also Dates of Application of Amendments to the Antidumping and Countervailing Duty Laws Made by the Trade Preferences Extension Act of 2015, 80 FR 46793 (August 6, 2015) (Applicability Notice). The 2015 amendments may be found at https://www.congress.gov/bill/114th-congress/house-bill/1295/text/pl.

    36See Applicability Notice, 80 FR at 46794-95.

    Thailand

    Based on our review of the Petition, we find that there is sufficient information to initiate a CVD investigation on all of the 10 alleged programs. For a full discussion of the basis for our decision to initiate on each program, see the Thai CVD Initiation Checklist. A public version of the initiation checklist for the Thai CVD investigation is available on ACCESS.

    China

    Based on our review of the Petition, we find that there is sufficient information to initiate a CVD investigation on some or all aspects of the 16 alleged subsidy programs. For three of these 16 programs, we are partially initiating. Furthermore, we have determined that two of the alleged programs should be initiated as one program providing export loans from state-owned banks, reducing the 16 alleged programs into an initiation of 15 programs. For a full discussion of the basis for our decision to initiate on each program, see China CVD Initiation Checklist. A public version of the initiation checklist for this investigation is available on ACCESS.

    Sri Lanka

    Based on our review of the Petition, we find that there is sufficient information to initiate a CVD investigation on all of the 20 alleged programs. For a full discussion of the basis for our decision to initiate on each program, see the Sri Lanka CVD Initiation Checklist. A public version of the initiation checklist for this investigation is available on ACCESS.

    Respondent Selection

    The petitioner named 22 companies in Thailand,37 12 companies in China,38 and four companies in Sri Lanka,39 as producers/exporters of rubber bands. Commerce intends to follow its standard practice in CVD investigations and calculate company-specific subsidy rates in these investigations. In the event Commerce determines that the number of companies is large and it cannot individually examine each company based upon Commerce's resources, where appropriate, Commerce intends to select mandatory respondents based on U.S. Customs and Border Protection (CBP) data for U.S. imports of rubber bands from Thailand, China, and Sri Lanka during the POI under the appropriate Harmonized Tariff Schedule of the United States numbers listed in the “Scope of the Investigation,” in the Appendix.

    37See Volume I of the Petition, at Exhibit GEN-2.

    38Id.

    39Id.

    On February 14, 2018, Commerce released CBP data under Administrative Protective Order (APO) to all parties with access to information protected by APO and indicated that interested parties wishing to comment regarding the CBP data and respondent selection must do so within three business days of the publication date of the notice of initiation of these CVD investigations.40 Commerce will not accept rebuttal comments regarding the CBP data or respondent selection.

    40See Memorandum to the File, “Countervailing Duty Petition on Rubber Bands from the People's Republic of China: U.S. Customs Data for Respondent Selection,” dated February 14, 2018; and “Countervailing Duty Petition on Rubber Bands from Sri Lanka: U.S. Customs Data for Respondent Selection,” dated February 14, 2018; and “Rubber Bands from the Kingdom of Thailand Countervailing Duty Petition: Release of Customs Data from U.S. Customs and Border Protection,” dated February 14, 2018.

    Interested parties must submit applications for disclosure under APO in accordance with 19 CFR 351.305(b). Instructions for filing such applications may be found on the Commerce's website at http://enforcement.trade.gov/apo.

    Comments must be filed electronically using ACCESS. An electronically filed document must be received successfully, in its entirety, by ACCESS no later than 5:00 p.m. ET on the date noted above. We intend to finalize our decisions regarding respondent selection within 20 days of publication of this notice.

    Distribution of Copies of the Petition

    In accordance with section 702(b)(4)(A)(i) of the Act and 19 CFR 351.202(f), copies of the public version of the Petitions have been provided to the RTG, GOC, and GOSL via ACCESS. To the extent practicable, we will attempt to provide a copy of the public version of the Petitions to each exporter named in the Petitions, as provided under 19 CFR 351.203(c)(2).

    ITC Notification

    We will notify the ITC of our initiation, as required by section 702(d) of the Act.

    Preliminary Determinations by the ITC

    The ITC will preliminarily determine, within 45 days after the date on which the Petitions were filed, whether there is a reasonable indication that imports of rubber bands from Thailand, China, and Sri Lanka are materially injuring, or threatening material injury to, a U.S. industry.41 A negative ITC determination for any country will result in the investigation being terminated with respect to that country.42 Otherwise, these investigations will proceed according to statutory and regulatory time limits.

    41See section 703(a)(2) of the Act.

    42See section 703(a)(1) of the Act.

    Submission of Factual Information

    Factual information is defined in 19 CFR 351.102(b)(21) as: (i) Evidence submitted in response to questionnaires; (ii) evidence submitted in support of allegations; (iii) publicly available information to value factors under 19 CFR 351.408(c) or to measure the adequacy of remuneration under 19 CFR 351.511(a)(2); (iv) evidence placed on the record by Commerce; and (v) evidence other than factual information described in (i)-(iv). 19 CFR 351.301(b) requires any party, when submitting factual information, to specify under which subsection of 19 CFR 351.102(b)(21) the information is being submitted 43 and, if the information is submitted to rebut, clarify, or correct factual information already on the record, to provide an explanation identifying the information already on the record that the factual information seeks to rebut, clarify, or correct.44 Time limits for the submission of factual information are addressed in 19 CFR 351.301, which provides specific time limits based on the type of factual information being submitted. Interested parties should review the regulations prior to submitting factual information in these investigations.

    43See 19 CFR 351.301(b).

    44See 19 CFR 351.301(b)(2).

    Extensions of Time Limits

    Parties may request an extension of time limits before the expiration of a time limit established under 19 CFR 351.301, or as otherwise specified by the Secretary. In general, an extension request will be considered untimely if it is filed after the expiration of the time limit established under 19 CFR 351.301. For submissions that are due from multiple parties simultaneously, an extension request will be considered untimely if it is filed after 10:00 a.m. ET on the due date. Under certain circumstances, we may elect to specify a different time limit by which extension requests will be considered untimely for submissions which are due from multiple parties simultaneously. In such a case, we will inform parties in the letter or memorandum setting forth the deadline (including a specified time) by which extension requests must be filed to be considered timely. An extension request must be made in a separate, stand-alone submission; under limited circumstances we will grant untimely-filed requests for the extension of time limits. Parties should review Extension of Time Limits; Final Rule, 78 FR 57790 (September 20, 2013), available at http://www.thefederalregister.org/fdsys/pkg/FR-2013-09-20/html/2013-22853.htm, prior to submitting factual information in these investigations.

    Certification Requirements

    Any party submitting factual information in an AD or CVD proceeding must certify to the accuracy and completeness of that information.45 Parties must use the certification formats provided in 19 CFR 351.303(g).46 Commerce intends to reject factual submissions if the submitting party does not comply with the applicable revised certification requirements.

    45See section 782(b) of the Act.

    46See Certification of Factual Information to Import Administration During Antidumping and Countervailing Duty Proceedings, 78 FR 42678 (July 17, 2013) (“Final Rule”); see also frequently asked questions regarding the Final Rule, available at http://enforcement.trade.gov/tlei/notices/factual_info_final_rule_FAQ_07172013.pdf.

    Notification to Interested Parties

    Interested parties must submit applications for disclosure under APO in accordance with 19 CFR 351.305. On January 22, 2008, Commerce published Antidumping and Countervailing Duty Proceedings: Documents Submission Procedures; APO Procedures, 73 FR 3634 (January 22, 2008). Parties wishing to participate in these investigations should ensure that they meet the requirements of these procedures (e.g., the filing of letters of appearance as discussed at 19 CFR 351.103(d)).

    This notice is issued and published pursuant to sections 702 and 777(i) of the Act and 19 CFR 351.203(c).

    Dated: February 20, 2018. Christian Marsh, Deputy Assistant Secretary for Enforcement and Compliance. Appendix Scope of the Investigations

    The products subject to these investigations are bands made of vulcanized rubber, with a flat length, as actually measured end-to-end by the band lying flat, no less than 1/2 inch and no greater than 10 inches; with a width, which measures the dimension perpendicular to the length, actually of at least 3/64 inch and no greater than 2 inches; and a wall thickness actually from 0.020 inch to 0.125 inch. Vulcanized rubber has been chemically processed into a more durable material by the addition of sulfur or other equivalent curatives or accelerators. Subject products are included regardless of color or inclusion of printed material on the rubber band's surface, including but not limited to, rubber bands with printing on them, such as a product name, advertising, or slogan, and printed material (e.g., a tag) fastened to the rubber band by an adhesive or another temporary type of connection. The scope includes vulcanized rubber bands which are contained or otherwise exist in various forms and packages, such as, without limitation, vulcanized rubber bands included within a desk accessory set or other type of set or package, and vulcanized rubber band balls. The scope excludes products that consist of an elastomer loop and durable tag all-in-one, and bands that are being used at the time of import to fasten an imported product. Merchandise covered by these investigations is currently classified in the Harmonized Tariff Schedule of the United States (HTSUS) under subheading 4016.99.3510. Merchandise covered by the scope may also enter under HTSUS subheading 4016.99.6050. While the HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of the investigations is dispositive.

    [FR Doc. 2018-03922 Filed 2-26-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration Notice of Request for Applicants for Appointment to the United States-Mexico Energy Business Council AGENCY:

    International Trade Administration, Department of Commerce.

    ACTION:

    Notice.

    SUMMARY:

    In 2016, agencies of the Governments of the United States and Mexico established the U.S.-Mexico Energy Business Council (the “Council”). This notice announces 10 membership opportunities for appointment as U.S. representatives to the U.S. Section of the Council for a term beginning in June 2018 and ending in June 2020.

    DATES:

    All applications must be received by the Office of North America by 5:00 p.m. Eastern Standard Time (EST) on April 30, 2018.

    ADDRESSES:

    Please submit applications to Leslie Wilson, International Trade Specialist, Office of North America, U.S. Department of Commerce either by email at [email protected] (preferred method) or by mail to U.S. Department of Commerce, 1401 Constitution Avenue NW, Room 30014, Washington, DC 20230.

    FOR FURTHER INFORMATION CONTACT:

    Leslie Wilson, Office of North America, U.S. Department of Commerce, telephone: (202) 482-0704, email: [email protected]

    SUPPLEMENTARY INFORMATION:

    The U.S. Department of Commerce, the U.S. Department of Energy, the Ministry of Economy of the United Mexican States, and the Ministry of Energy of the United Mexican States established the Council in March 2016. The objective of the Council is to bring together representatives of the respective energy industries of the United States and Mexico to discuss issues of mutual interest, particularly ways to strengthen the economic and commercial ties between energy industries in the two countries, and communicating actionable, non-binding recommendations to the U.S. and Mexican Governments.

    For more information, please consult the Terms of Reference of the Council (copy and paste link into browser): https://www.trade.gov/hled/documents/Signed%20US-MEX%20Energy%20Business%20Council%20Terms%20(May%202016%20-%20English).pdf.

    The Department of Commerce is seeking applicants for membership on the U.S. Section of the Council. Each applicant must be a senior representative (e.g., Chief Executive Officer, Vice President, Regional Manager, Senior Director, or holder of a similar position) of a U.S.-owned or controlled individual company, trade association, or private sector organization that is incorporated in and has its main headquarters in the United States and whose activities include a focus on the manufacture, production, commercialization and/or trade in goods and services for the energy industry in Mexico. Each applicant must also be a U.S. citizen, or otherwise legally authorized to work in the United States, and be able to travel to Mexico or locations in the United States to attend Council meetings, as well as U.S. Section and Committee meetings. In addition, the applicant may not be a registered foreign agent under the Foreign Agents Registration Act of 1938, as amended.

    Applications for membership in the U.S. Section by eligible individuals, including applications by current U.S. section members for reappointment, will be evaluated on the following criteria:

    —A demonstrated commitment by the entity to be represented to the Mexican market, including as applicable either through exports or investment. —A demonstrated strong interest in Mexico and its economic development. —The ability to offer to the work of the Council a broad perspective and business experience specific to the energy industry. —The ability to address cross-cutting issues that affect the entity's entire energy industry sub-sector. —The ability to dedicate organizational resources to initiate and be responsible for activities in which the Council will be active.

    U.S. Section members will also be selected on the basis of who is best qualified to carry out the objectives of the Council to:

    —Promote increased two-way investment in the energy industry; —Promote two-way trade in goods and services produced by and used in the energy industry, including the oil and gas, renewable energy, electricity, nuclear energy, and energy efficiency sub-sectors; —Promote the development of binational value chains in the production of goods and services in the energy sector; —Promote the development of modern energy infrastructure and bolster energy efficiency and security; —Foster an enabling environment for the rapid development, deployment, and integration of new energy industry technologies—including clean renewable energy technologies—into the marketplace; —Improve competitiveness through innovation and entrepreneurship in the energy industry, to include the promotion of technology exchanges and research partnerships; and —Partner in skills development to create solutions in training and education to address evolving energy industry workforce needs.

    In selecting members of the U.S. Section, the U.S. Government selection committee, composed of representatives from the Department of Commerce and the Department of Energy, will attempt to ensure that the Section represents a cross-section of small, medium-sized and large firms.

    U.S. Section members will receive no compensation for their participation in Council-related activities. They shall not be considered as special government employees. Individual U.S. Section members will be responsible for all travel and related expenses associated with their participation in the Council, including attendance at Committee and Section meetings. Only appointed U.S. Section members may participate in Council meetings; substitutes and alternates may not be designated. U.S. Section members are expected to serve for two-year terms, but may be reappointed.

    To apply for membership in the U.S. Section, please submit the following information as instructed in the ADDRESS and DATES captions above:

    —Name(s) and title(s) of the applicant; —Name and address of the headquarters of the entity that employs the applicant; —Location of incorporation or establishment; —Size of the represented entity, in terms of annual sales and number of employees; —As applicable, the size of the entity's export trade, investment, and nature of operations or interest in Mexico; and —A brief statement of why the applicant should be considered, including information about the applicant's ability to initiate and be responsible for activities in which the Council will be active.

    All applicants will be notified of whether they have been selected once the application window closes and selection of U.S. Section members has been made.

    Dated: February 21, 2018. Geri Word, Director for the Office of North America.
    [FR Doc. 2018-03937 Filed 2-26-18; 8:45 am] BILLING CODE 3510-HE-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration Submission for OMB Review; Comment Request

    The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).

    Agency: National Oceanic and Atmospheric Administration (NOAA).

    Title: Economic Impacts of Hawaii Reef Diving and Snorkeling.

    OMB Control Number: 0648-xxxx.

    Form Number(s): None.

    Type of Request: Regular (request for a new information collection).

    Number of Respondents: 4,150.

    Average Hours per Response: 10 minutes.

    Burden Hours: 692.

    Needs and Uses: This request is for a new collection of information.

    The objective of the survey will be to understand divers' and snorkelers' expenditures associated with recreational coral reef diving activities in Hawaii. The survey will also collect information on divers' attitudes, preferences, and concerns about recreational diving and coral reefs health in Hawaii. We are conducting this survey to improve our understanding of divers' expenditure patterns and to estimate the economic impact of coral reef related spending. Results of the survey will be used to inform coastal resource management planning and establish a baseline for outreach and education. The expenditure survey is also expected to provide useful information for local economic and business interests. A similar survey (OMB Control No. 0648-0746) was implemented in south Florida and was successfully completed in November 2017.

    Affected Public: Individuals or households.

    Frequency: One time.

    Respondent's Obligation: Voluntary.

    This information collection request may be viewed at reginfo.gov. Follow the instructions to view Department of Commerce collections currently under review by OMB.

    Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to [email protected] or fax to (202) 395-5806.

    Dated: February 21, 2018. Sarah Brabson, NOAA PRA Clearance Officer.
    [FR Doc. 2018-03878 Filed 2-26-18; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XG028 Marine Mammals; File No. 21238 AGENCY:

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

    ACTION:

    Notice; receipt of application.

    SUMMARY:

    Notice is hereby given that the Center for Whale Research (Responsible Party: Kenneth Balcomb III), 355 Smuggler's Cove Road, Friday Harbor, WA, 98250, has applied in due form for a permit to conduct research on marine mammals.

    DATES:

    Written, telefaxed, or email comments must be received on or before March 29, 2018.

    ADDRESSES:

    The application and related documents are available for review by selecting “Records Open for Public Comment” from the “Features” box on the Applications and Permits for Protected Species (APPS) home page, https://apps.nmfs.noaa.gov, and then selecting File No. 21238 from the list of available applications.

    These documents are also available upon written request or by appointment in the Permits and Conservation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301) 427-8401; fax (301) 713-0376.

    Written comments on this application should be submitted to the Chief, Permits and Conservation Division, at the address listed above. Comments may also be submitted by facsimile to (301) 713-0376, or by email to [email protected] Please include the File No. in the subject line of the email comment.

    Those individuals requesting a public hearing should submit a written request to the Chief, Permits and Conservation Division at the address listed above. The request should set forth the specific reasons why a hearing on this application would be appropriate.

    FOR FURTHER INFORMATION CONTACT:

    Shasta McClenahan or Amy Hapeman, (301) 427-8401.

    SUPPLEMENTARY INFORMATION:

    The subject permit is requested under the authority of the Marine Mammal Protection Act of 1972, as amended (MMPA; 16 U.S.C. 1361 et seq.), the regulations governing the taking and importing of marine mammals (50 CFR part 216), the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531 et seq.), and the regulations governing the taking, importing, and exporting of endangered and threatened species (50 CFR parts 222-226).

    The applicant proposes to take 19 species of cetaceans and four species of pinnipeds primarily in the inland marine waters of Washington State, may also include territorial waters up to 200 miles offshore of Oregon, California, and Alaska. The ESA listed species include blue (Balaenoptera musculus), fin (B. physalus), (Megaptera novaeangliae), North Pacific right (Eubalaena japonica), sperm (Physeter macrocephalus), and Southern Resident killer (Orcinus orca) whales, and the Western stock of Steller sea lions (Eumetopias jubatus). The primary objective of the research is to monitor the population size, demographics, range, movement, social structure, health, and body condition of Southern resident killer whales, and secondarily, to monitor the population size and demographics of other marine mammals in the study area. Research activities would include manned and unmanned aerial surveys and vessel surveys for counts, photography, photo-identification, video recording, observation, passive acoustic recording, and opportunistic sampling of sloughed skin, feces, and predation remains. The permit would expire five years after the date of issuance.

    In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), an initial determination has been made that the activity proposed is categorically excluded from the requirement to prepare an environmental assessment or environmental impact statement.

    Concurrent with the publication of this notice in the Federal Register, NMFS is forwarding copies of the application to the Marine Mammal Commission and its Committee of Scientific Advisors.

    Dated: February 21, 2018. Julia Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service.
    [FR Doc. 2018-03874 Filed 2-26-18; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration Submission for OMB Review; Comment Request

    The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).

    Agency: National Oceanic and Atmospheric Administration (NOAA).

    Title: Alaska Region Logbook and Activity Family of Forms.

    OMB Control Number: 0648-0213.

    Form Number(s): None.

    Type of Request: Regular (extension of a currently approved information collection).

    Number of Respondents: 445.

    Average Hours per Response: 35 minutes per active response and 5 minutes per inactive response for Catcher Vessel Longline and Pot Gear DFL; 18 minutes for active response and 5 minutes for inactive response for Catcher Vessel Trawl Gear DFL; 7 minutes for Mothership Check-in/Check-out Report; 50 minutes per active response and 5 minutes per inactive response for Catcher/processor Longline and Pot Gear DCPL; 5 minutes for Shoreside Processor Check-in/Check-out Report; 20 minutes for Product Transfer Report; 14 minutes for Vessel Activity Report.

    Burden Hours: 15,654.

    Needs and Uses: This request is for extension of a currently approved information collection.

    The Magnuson-Stevens Fishery Conservation and Management Act 16 U.S.C. 1801 et seq. authorizes the North Pacific Fishery Management Council to prepare and amend fishery management plans for any fishery in waters under its jurisdiction. National Marine Fisheries Service, Alaska Region (NMFS) manages (1) the crab fisheries in the Exclusive Economic Zone waters off the coast of Alaska under the Fishery Management Plan for Bering Sea and Aleutian Islands Crab, (2) groundfish under the Fishery Management Plan for the Groundfish of the Bering Sea and Aleutian Islands Management Area, and (3) groundfish under the Fishery Management Plan for Groundfish of the Gulf of Alaska. The International Pacific Halibut Commission (IPHC) and NMFS manage fishing for Pacific halibut (Hippoglossus stenolepis) through regulations established under the authority of the Northern Pacific Halibut Act of 1982. The IPHC promulgates regulations governing the halibut fishery under the Convention between the United States and Canada for the Preservation of the Halibut Fishery of the Northern Pacific Ocean and Bering Sea.

    Vessels required to have a Federal Fisheries Permit are issued free daily fishing logbooks (DFLs) for harvesters and daily cumulative production logbooks (DCPL) for processors to record groundfish, Crab Rationalization Program crab, Individual Fishing Quota (IFQ) halibut, IFQ sablefish, Western Alaska Community Development Quota Program halibut, and prohibited species catch information. Catcher vessels under 60 ft (18.3 m) length overall are not required to maintain DFLs. Multiple self-copy logsheets within each logbook are available for distribution to the harvester, processor, observer program, and NOAA Office for Law Enforcement. The longline or pot gear logbooks have an additional logsheet for submittal to the IPHC.

    As electronic logbooks become available, paper logbooks are discontinued and removed from this collection. The forms and DFL and DCPL logsheets may be viewed on the NMFS Alaska Region Home Page at https://alaskafisheries.noaa.gov/fisheries/rr-log.

    In addition to the logbooks, this collection includes the check-in/check-out reports for shoreside processors and motherships, the product transfer report, and the U.S. vessel activity report.

    Affected Public: Business or other for-profit organizations; individuals or households.

    Frequency: Daily.

    Respondent's Obligation: Mandatory.

    This information collection request may be viewed at reginfo.gov. Follow the instructions to view Department of Commerce collections currently under review by OMB.

    Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to [email protected] or fax to (202) 395-5806.

    Dated: February 21, 2018. Sarah Brabson, NOAA PRA Clearance Officer.
    [FR Doc. 2018-03876 Filed 2-26-18; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration Proposed Information Collection; Comment Request; Permits for Incidental Taking of Endangered or Threatened Species AGENCY:

    National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Notice.

    SUMMARY:

    The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.

    DATES:

    Written comments must be submitted on or before April 30, 2018.

    ADDRESSES:

    Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW, Washington, DC 20230 (or via the internet at [email protected]

    FOR FURTHER INFORMATION CONTACT:

    Requests for additional information or copies of the information collection instrument and instructions should be directed to Celeste Stout, (301) 427-8436 or [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Abstract

    This request is for an extension of a currently approved information collection.

    The Endangered Species Act of 1973 (ESA; 16 U.S.C. 1531 et seq.) imposed prohibitions against the taking of endangered species. In 1982, Congress revised the ESA to allow permits authorizing the taking of endangered species incidental to otherwise lawful activities. The corresponding regulations (50 CFR part 222.222) established procedures for persons to apply for such a permit. In addition, the regulations set forth specific reporting requirements for such permit holders.

    The regulations contain three sets of information collections: (l) Applications for incidental take permits, (2) applications for certificates of inclusion, and (3) reporting requirements for permits issued. Certificates of inclusion are only required if a general permit is issued to a representative of a group of potential permit applicants, rather than requiring each entity to apply for and receive a permit.

    The required information is used to evaluate the impacts of the proposed activity on endangered species, to make the determinations required by the ESA prior to issuing a permit, and to establish appropriate permit conditions.

    When a species is listed as threatened, section 4(d) of the ESA requires the Secretary to issue whatever regulations are deemed necessary or advisable to provide for conservation of the species. In many cases those regulations reflect blanket application of the section 9 take prohibition. However, the National Marine Fisheries Service (NMFS) recognizes certain exceptions to that prohibition, including habitat restoration actions taken in accord with approved state watershed action plans. While watershed plans are prepared for other purposes in coordination with or fulfillment of various state programs, a watershed group wishing to take advantage of the exception for restoration activities (rather than obtaining a section 10 permit) would have to submit the plan for NMFS review.

    II. Method of Collection

    Currently, most information is collected on paper, but in some instances, there is electronic access and capability.

    III. Data

    OMB Number: 0648-0230.

    Form Number: None.

    Type of Review: Regular submission (extension of a currently approved information collection).

    Affected Public: Individuals or households; business or other for-profit; not-for-profit institutions, and state, local, or tribal government.

    Estimated Number of Respondents: 48.

    Estimated Time per Response: 80 hours for a permit application (including Habitat Conservation Plans), 40 minutes for transfer of an incidental take permit; 8 hours for a permit report, 30 minutes for a Certificate of Inclusion and 10 hours for a watershed plan.

    Estimated Total Annual Burden Hours: 795.

    Estimated Total Annual Cost to Public: $1,000 in recordkeeping/reporting costs.

    IV. Request for Comments

    Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.

    Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.

    Dated: February 21, 2018. Sarah Brabson, NOAA PRA Clearance Officer.
    [FR Doc. 2018-03881 Filed 2-26-18; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XG026 Marine Mammals; File No. 21966 AGENCY:

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

    ACTION:

    Notice; receipt of application.

    SUMMARY:

    Notice is hereby given that Mystic Aquarium, 55 Coogan Boulevard, Mystic, CT 06355 (Responsible Party: Katie Cubina), has applied in due form for a permit to collect, receive, import, and export marine mammal parts for scientific research.

    DATES:

    Written, telefaxed, or email comments must be received on or before March 29, 2018.

    ADDRESSES:

    The application and related documents are available for review by selecting “Records Open for Public Comment” from the “Features” box on the Applications and Permits for Protected Species (APPS) home page, https://apps.nmfs.noaa.gov, and then selecting File No. 21966 from the list of available applications.

    These documents are also available upon written request or by appointment in the Permits and Conservation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301) 427-8401; fax (301) 713-0376.

    Written comments on this application should be submitted to the Chief, Permits and Conservation Division, at the address listed above. Comments may also be submitted by facsimile to (301) 713-0376, or by email to [email protected] Please include the File No. 21966 in the subject line of the email comment.

    Those individuals requesting a public hearing should submit a written request to the Chief, Permits and Conservation Division at the address listed above. The request should set forth the specific reasons why a hearing on this application would be appropriate.

    FOR FURTHER INFORMATION CONTACT:

    Shasta McClenahan or Jennifer Skidmore, (301) 427-8401.

    SUPPLEMENTARY INFORMATION:

    The subject permit is requested under the authority of the Marine Mammal Protection Act of 1972, as amended (MMPA; 16 U.S.C. 1361 et seq.), the regulations governing the taking and importing of marine mammals (50 CFR part 216), the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531 et seq.), the regulations governing the taking, importing, and exporting of endangered and threatened species (50 CFR parts 222-226), and the Fur Seal Act of 1966, as amended (16 U.S.C. 1151 et seq.).

    The applicant proposes to collect, receive, import, and export biological samples from up to 5,000 pinnipeds and 5,000 cetaceans annually for scientific research. Receipt, import, and export is requested worldwide. The foreign and domestic sources of samples may include captive animals, subsistence harvests, other authorized researchers, animals that died incidental to legal commercial fisheries, and marine mammal strandings in foreign countries. The requested duration of the permit is 5 years.

    In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), an initial determination has been made that the activity proposed is categorically excluded from the requirement to prepare an environmental assessment or environmental impact statement.

    Concurrent with the publication of this notice in the Federal Register, NMFS is forwarding copies of the application to the Marine Mammal Commission and its Committee of Scientific Advisors.

    Dated: February 21, 2018. Julia Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service.
    [FR Doc. 2018-03875 Filed 2-26-18; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XF957 Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Cook Inlet Pipeline Cross Inlet Extension 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 Harvest Alaska, LLC (Harvest), a subsidiary of Hilcorp, for authorization to take marine mammals incidental to installing two pipelines in Cook Inlet. 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 29, 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-oil-and-gas 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:

    Jaclyn Daly, 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-oil-and-gas. 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.

    NMFS has defined “unmitigable adverse impact” in 50 CFR 216.103 as an impact resulting from the specified activity:

    (1) That is likely to reduce the availability of the species to a level insufficient for a harvest to meet subsistence needs by: (i) Causing the marine mammals to abandon or avoid hunting areas; (ii) directly displacing subsistence users; or (iii) placing physical barriers between the marine mammals and the subsistence hunters; and

    (2) That cannot be sufficiently mitigated by other measures to increase the availability of marine mammals to allow subsistence needs to be met.

    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.

    Accordingly, NMFS is preparing an Environmental Assessment (EA) to consider the environmental impacts associated with the issuance of the proposed IHA. NMFS' EA will be made available at www.nmfs.noaa.gov/pr/permits/incidental/oilgas.htm. 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 May 16, 2017, NMFS received a request from Harvest Alaska (Harvest) for an IHA to take six species of marine mammals incidental to installing two pipelines as part of the Cook Inlet Extension Project, Cook Inlet, Alaska. Harvest submitted a revised application on October 20, 2017 and again on January 29, 2018 which NMFS determined was adequate and complete on January 30, 2018. Harvest's request is for take of small numbers of Cook Inlet beluga whales (Delphinapterus leucas), humpback whales, (Megaptera novaeangliae), killer whales (Orcinus orca), harbor porpoise (Phocoena phocoena), harbor seals (Phoca vitulina) and Steller sea lions (Eumetopias jubatus) by Level B harassment only. The IHA would be valid from April 15, 2018 through March 31, 2019. Neither Harvest nor NMFS expects serious injury or mortality to result from this activity and, therefore, an IHA is appropriate.

    Description of Proposed Activity Overview

    The proposed Cook Inlet Pipeline Cross Inlet Extension Project (CIPL Project) includes the installation of two new steel subsea pipelines in the waters of Cook Inlet. Work includes moving subsea obstacles out of the pipeline corridor, pulling two pipelines (one oil, one gas) into place on the seafloor, securing pipelines with sandbags, and connecting the pipelines to the existing Tyonek platform. The positioning and installation of the offshore pipeline would be accomplished using a variety of pipe pulling, positioning, and securing methods supported by dive boats, tug boats, and/or barges and winches. Work would be limited to the pipeline corridor from Ladd Landing to the Tyonek Platform and could occur for up to 110 days. The installation of the subsea pipelines, specifically presence of and noise generated from work vessels has the potential to take marine mammals by harassment. Harvest requests authorization to take small numbers of six species of marine mammals incidental to the project.

    Dates and Duration

    The proposed project would take place for approximately 110 days from April 15 through October 31, 2018. Work would be staged with repositioning of obstacles (e.g., boulders) lasting approximately 15 days, pipe pulling lasting approximately 11 days (weather permitting) and the remainder of the project, including equipment mobilization, pipeline securing, pipeline connection to the Tyonek platform, and demobilization constituting the remainder of the 110 day project.

    Specific Geographic Region

    Cook Inlet is a complex Gulf of Alaska estuary (as described in BOEM 2016) that covers roughly 7,700 square miles (mi2; 20,000 square kilometers (km2)), with approximately 840 miles (mi) (1,350 linear kilometer (km)) of coastline (Rugh et al., 2000). Cook Inlet is generally divided into upper and lower regions by the East and West Forelands (see Figure 1-1). Northern Cook Inlet bifurcates into Knik Arm to the north and Turnagain Arm to the east. Overall, Cook Inlet is shallow, with an area-weighted mean depth of 148 feet (ft) (44.7 meters (m)). The physical oceanography of Cook Inlet is characterized by complex circulation with variability at tidal, seasonal, annual, and inter-annual timescales (Musgrave and Statscewich 2006). This region has the fourth largest tidal range in the world and as a result, extensive tidal mudflats that are exposed at low tides occur throughout Cook Inlet, especially in the upper reaches. These tides are also the driving force of surface circulation. Strong tidal currents drive the circulation in the greater Cook Inlet area with average velocities ranging from 1.5 to 3 m per second (3 to 6 knots).

    The project area is located a few kilometers north of the village of Tyonek between Ladd Landing and the Tyonek Platform (see Figure 1-2 of Harvest's application). On April 11, 2011, NMFS designated two areas as critical habitat comprising 7,800 km2 (3,016 mi2) of marine habitat. The project area is within critical habitat area 2, which includes known fall and winter Cook Inlet beluga foraging and transiting areas (see Figure 4-1 in Harvest's application).

    Detailed Description of Specific Activity

    The project includes the installation of two new steel subsea pipelines in the waters of Cook Inlet: A 10-inch (in) nominal diameter gas pipeline (Tyonek W 10) between the Tyonek Platform and the Beluga Pipeline (BPL) Junction, and the 8-in nominal diameter oil pipeline (Tyonek W 8) between the existing Tyonek Platform and Ladd Landing (see Figure 1-1 in Harvest's application). The length of the Tyonek W 10 pipeline would be approximately 11.1 km (6.9 mi) with 2.3 km (1.4 mi) onshore and 8.9 km (5.5 mi) offshore in Cook Inlet waters. The Tyonek W 8 pipeline would be approximately 8.9 km (5.5 mi) in Cook Inlet waters. The purpose and need of the CIPL Project is to allow for the transportation of natural gas directly from the Tyonek Platform to the Beluga Pipeline (BPL) on the west side of Cook Inlet for use in the Southcentral natural gas system and to support future oil development at Tyonek Platform. At this time, Harvest would not connect the Tyonek 8 oil pipeline to the Tyonek platform or make the oil pipeline operational.

    The proposed method of construction is to fabricate the pipelines in approximately 0.8 km (0.5 mi) segments onshore in the cleared pull area. Each pipeline section would be inspected and hydrotested, and coatings would be verified. Additional segments would be welded together, section splice welds inspected, and coatings applied to welds in the onshore fabrication area. The entire 0.8 km (0.5 mi) section would be pulled offshore following connection of each new segment, until the pipeline section is approximately half of the entire offshore length of the pipeline. This section would then be pulled into place where the 10-in line can be connected to Tyonek Platform. The 8-in line would be capped subsea adjacent to the platform for future connection to the platform. Thereafter, a second section would be constructed using the same technique as the first. It would be pulled into place where it can be connected to the first section using a subsea mechanical connection.

    Pipeline segments/sections would be pulled from shore using a winch mounted on an anchored pull barge. The barge would be repositioned and anchored during slack tide, by two 120 ft tugs with a horsepower of 5,358 at 900 revolutions per minute (RPM). The barge will be secured by four anchors and repositioned during the slack tides. The pipe pull itself will take place through the tide periods to minimize cross currents and maximize control of pipeline routing. An additional winch onshore would maintain alignment of the pipeline during pulling and the winch on the pull barge would pull the pipeline from shore out to the platform. A dive boat would be used to pull the tag line to the main winch line. Both pipelines would be installed concurrently. Once a segment for one pipeline has been pulled, the corresponding segment for the other pipeline would be pulled, until the long sections for both pipelines have been constructed. A sonar survey (operating at or above 200 kilohertz (kHz)) would be used to confirm that the pipe is being installed in the correct position and location.

    In the tidal transition zone, the pipeline would be exposed on the ground surface. The exposed pipelines would be buried through the tidal transition zone and each would be connected to its respective onshore pipeline and shutdown valve station. The proposed method for pipeline burial in the transition zone is by trenching adjacent to the pipeline using the open cut method, placing the pipeline in the trench, followed by direct burial of the pipeline to a depth of approximately 1.8 m (6 ft). Each pipeline would be buried in a separate trench. The trench from the cut in the bluff would be continued into the tidal zone area and would be dug from the beach side as far offshore as possible. The barge Ninilchik would then be anchored as close to the beach as possible and the trench continued for the required distance from shore to adequately protect the pipe from ice damage. This would be done from the barge with the crane equipped with a clam shell bucket or backhoe. Trenching in the tidal transition zone would take place during low tide to allow shore-based excavators maximum distance into the tidal zone. Work in the intertidal zone in waters less than 30-ft (9-m) deep work would occur for approximately 2-4 hours per slack tide over a 4- to 6-week period.

    Further offshore, the barge, dive boat and divers would be used to install sand bags over the pipelines for anchoring and stabilization. Stabilization is expected to take about 10-11 days. Upon completion of pipeline stabilization activities, the dive boat would be used to install cathodic protection (anode sleds) along the pipelines. Sonar surveys would be completed after installation to confirm that pipeline placement is correct. Sonar equipment would operate at frequencies above 200 kHz, outside the hearing sensitivity range of any marine mammals in the area, so would have no potential for take of marine mammals and is not addressed further in this document.

    Once each 2.5-mi section of each pipeline have been pulled into place, divers would measure the specific distances between the sections. Steel spool sections with gaskets that would connect the two sections of each pipeline would be fabricated onshore; divers would use the spool sections to connect the pipeline segments underwater. The dive boat would be operating intermittently during the nine-day period needed to complete the underwater connections. The barge would be stationary, with tugs powered on and standing-by.

    The subsea gas pipeline (Tyonek W10) would be connected to a new riser at the Tyonek Platform by new subsea connections. In addition to modifications to existing piping, a shutdown valve would be installed. An existing pipeline lateral (from platform to subsea flange) would be capped and abandoned in place; it would be available for future use. The connections would be fabricated onshore, transported to the platform on a workboat, and lowered to the seafloor. A dive boat, tug, and barge would facilitate the connection from new pipeline to the base of the new gas riser. The dive boat would be operating intermittently during the 9-day period needed to complete the underwater connections. A set of underwater tools may be used for a brief period to expose the location where the new subsea gas pipeline would be connected to the existing pipeline and prepare the pipeline for connection. These tools may include a hydraulic wrench, pneumatic grinder, and a hydraulic breaker and pressure washer (i.e., Garner Denver Series Pressure Washer) for removing concrete from existing infrastructure. The use of these tools would only be required during one dive for a short duration (less than 30 minutes).

    Prior to initiating pipeline pulling activities, obstacles along the pull path would be repositioned. A subsea sonar survey was conducted in Spring 2017 to identify any obstacles that could damage the pipe during installation or impede the pipe pulling activities. A number of items 1.5 me (5 ft) in diameter or greater were identified during the survey and would be relocated to a position that does not interfere with the pipeline route. A maximum of 50 obstacles (e.g., boulders) would be moved away from the pipeline corridor using a barge-mounted crane or tug-mounted tow cable. During slack tide, divers would attach a 500-600 ft long pull cable to the obstacle. The cable would then be pulled by a tug or, for larger objects, rolled up on a winch on the barge. Because divers can only attach cables during slack tide, Harvest anticipates this work to take approximately 15 days.

    In total, approximately 100-110 barge moves will be required intermittently over the 110-day period. There are four anchors for the barge and two anchors that will provide hold-back force for pulling pipe. Approximately four anchors will be set at each slack tide which occurs threetimes/day. Slack tide lasts approx. 1.5-2 hours. During slack tide, tugs will be moving anchors and repositioning the barge if possible depending on conditions and timing. Each anchor is 30,000 pounds with 15 ft of chain and 4,200 ft of wire cable. Tugs engines will be on 24-hours per day; however, they would be “standing by” during pipe pulling when engine vessel noise is minimal. Tugs cannot turn off engines when not working due to strong currents. Actual time estimated for tugs to be working is a maximum of 12 hours per day. Dive boats will be secured to the barge for the majority of time, which will not require engines to be on or engaged. During the project, a work boat would be onsite to support the barges (e.g., supply equipment) and a crew boat would shuttle crew back and forth between the barge/vessels and the beach.

    Harvest provided source levels for the various vessels that would be used for the project. They also estimated pipe pulling source levels may be similar to a bucket dredge if the pipe hits something on the seafloor resulting in a peak source level of 179 decibels (dB). We believe this to be a gross overestimate because Cook Inlet is comprised of silty, muddy substrates and Harvest would move obstacles prior to initiating pipe pulling. However, no pipe pulling acoustic data is available; therefore, we include the proposed source level here. We note that while any one of these individual sources operating alone would not necessarily be expected to result harassment of marine mammals, the overall cumulative elevation in noise from a combination of sources as well as the presence of equipment in what is typically a natural, undeveloped environment (see further discussion below) may result in take of marine mammals. Table 1 contains construction scenarios during the phased project and associated use duration.

    Table 1—Construction Scenarios, Associated Equipment and Estimated Source Levels During the 108-Day CIPL Project Project component/scenario Noise source Approximate
  • duration
  • (days)
  • Approximate
  • hours
  • per day
  • Obstruction Removal and Pipeline pulling (subtidal) Tug (120 ft) x 2
  • Dive boat 1
  • Sonar boat 2
  • Work boat (120 ft) 1
  • Crew boat (48 ft) 1
  • Barge anchoring 3
  • 68
  • 28
  • 9
  • 68
  • 68
  • 10-12
  • 9
  • 12
  • 9
  • 9
  • Pipeline pulling (intertidal) Tug x 2
  • Barge anchoring
  • Crew boat
  • 16
  • 16
  • 10-12
    Trenching (transition zone) Tug x 2
  • Backhoe/bucket dredge 4 (beach-based)
  • 10
  • 10
  • 12
  • 12
  • Mid-line Pipeline Tie-In Work Tug x 2
  • Dive boat
  • Work boat
  • Barge anchoring
  • 7
  • 4
  • 7
  • 7
  • 10-12
  • 9
  • 12
  • 6
  • Connections of Tyonek Platform Tug x 2
  • Work boat
  • Dive boat
  • Underwater tools (hydraulic wrench, pneumatic grinder, and pressure washer)
  • 7
  • 7
  • 7
  • 7
  • 10-12
  • 8
  • 9
  • 30 minutes
  • Total Duration 5 Tug x 2
  • Dive boat
  • Sonar boat
  • Work/crew boat
  • 108
  • 39
  • 9
  • 108
  • 1 The dive boat, crew boat, and work boat durations are shorter than tugs because they would be tied to the barge most of the time. Main engines would not be running while tied up, but a generator and compressors would be running to support diving operations. 2 Sonar boat engine noise only. Sonar equipment would operate at frequencies over 200 kHz. 3 Barge is equipped with four anchors. 4 Backhoe and tug will be used approximately 2-4 hours per low/slack tide to complete transition zone installation. 5 Total time does not include allowance of 6 weather days because vessels would not operating during those days.
    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; 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 Cook Inlet and summarizes information related to the population or stock, including regulatory status under the MMPA and the Endangered Species Act (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. Alaska SARs (Muto et al., 2016). All values presented in Table 2 are the most recent available at the time of publication and are available in the 2016 SARs (Muto et al., 2016) available online at: www.nmfs.noaa.gov/pr/sars/draft.htm.

    Table 2—Need a title here Common name Scientific name Stock ESA/MMPA status; strategic (Y/N) 1 Stock
  • abundance
  • (CV, Nmin,
  • most recent
  • abundance
  • survey) 2
  • PBR 3 Annual
  • M/SI 4
  • Order Cetartiodactyla—Cetacea—Superfamily Mysticeti (baleen whales) Family Eschrichtiidae Gray whale Eschrichtius robustus Eastern North Pacific -;N 20,990 (0.05, 20125, 2011) 624 132 Family Balaenopteridae (rorquals) Fin whale Balaenoptera physalus Northeast Pacific Stock E;Y 1,368 (1,368, 0.34, 2010) UND 0.6 Minke whale Balaenoptera acutorostrata Gulf of Alaska -;N unk N/A 0 Humpback whale Megaptera novaeangliae Central North Pacific E;Y 10,103 (0.3, 7890, 2006) 83 24 Humpback whale Megaptera novaeangliae Western North Pacific E;Y 1,107 (0.3, 865, 2006) 3 2.6 Superfamily Odontoceti (toothed whales, dolphins, and porpoises) Family Delphinidae Beluga whale Delphinapterus leucas Cook Inlet E;Y 312 (0.1, 287, 2014) UND 0 Killer whale Orcinus orca Alaska Resident -;N 2,347 (unk, 2,347, 2012) 24 1 Killer whale Orcinus orca Gulf of Alaska, Aleurian, Bering Sea Transient -;N 587 (unk, 587, 2012) 5.9 1 Family Phocoenidae (porpoises) Harbor porpoise Phocoena phocoena Gulf of Alaska -;Y 31,046 (0.214, N/A, 1998) UND 72 Dall's porpoise Phocoenoides dalli Alaska -;N 83,400 (0.097, N/A, 1993) UND 38 Order Carnivora—Superfamily Pinnipedia Family Otariidae (eared seals and sea lions) Steller sea lion Eumetopias jubatus Western U.S. E;Y 50,983 (unk, 50,983, 2015) 306 236 Family Phocidae (earless seals) Harbor seal Phoca vitulina Cook Inlet/Shelikof Strait -;N 27,386 (unk, 25,651, 2011) 770 234 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. 3 UND is an undetermined Potential Biological Removal (PBR). 4 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 2. However, the rarity of animals in the action and temporal and/or spatial occurrence of gray whales, fin whales, minke whales, and Dall's porpoise is such that take is not expected to occur, and they are not discussed further beyond the explanation provided here. Dall's porpoise occur in Cook Inlet but primarily in the lower portions south of the Forelands. Dall's porpoise are considered rare in the action area. Fin whale sightings in Cook Inlet are rare. During the NMFS aerial beluga surveys from 2001 to 2014 a total of nine groups were reported; all of which occurred south Kachemak Bay which is located in Lower Cook Inlet approximately 100 miles southeast of the project area. Minke whales are also known to occur primarily in Lower Cook Inlet and are rare. From 1994 to 2012, only three minke whales were observed during the NMFS aerial surveys. In Lower Cook Inlet there have been several documented sightings of gray whales over the years; however, sighting in the Upper Inlet are rare. For reasons of rarity and distribution, we do not discuss these species further.

    Beluga Whale

    Beluga whales inhabiting Cook Inlet are one of five distinct stocks based on the following types of data: Distribution, population response, phenotype, and genotype (Muto et al., 2016). During ice-free months, Cook Inlet beluga whales are typically concentrated near river mouths (Rugh et al., 2010). The fall-winter-spring distribution of this stock is not fully determined; however, there is evidence that most whales in this population inhabit upper Cook Inlet year-round (Hansen and Hubbard 1999, Rugh et al., 2004, Shelden et al., 2015, Castellote et al., 2016).

    The Cook Inlet beluga whale stock was designated as depleted under the MMPA (65 FR 34590, 21 May 2000), and on 22 October 2008, NMFS listed Cook Inlet beluga whales as endangered under the ESA (73 FR 62919, 22 October 2008). Bi-annually, NMFS conducts aerial surveys to determine stock abundance. The most recent survey occurred in June 2016 with the next survey scheduled for June 2018. Aerial surveys during June documenting the early summer distribution and abundance of beluga whales in Cook Inlet were conducted by NMFS each year from 1993 to 2012 (Rugh et al., 2000, 2005; Shelden et al., 2013), after which NMFS began biennial surveys in 2014 (Shelden et al., 2015b) (Fig. 2). The abundance estimate for beluga whales in Cook Inlet is based on counts by aerial observers and video analysis of whale groups Based on population data, there is a declining trend in abundance. From 1999 to 2014, the rate of decline was 1.3 percent (SE = 0.7%) per year, with a 97 percent probability that the growth rate is declining (i.e., less than zero), while the 10-year trend (2004-2014) is −0.4 percent per year (with a 76 percent probability of declining) (Shelden et al., 2015b). Threats that have the potential to impact this stock and its habitat include the following: Changes in prey availability due to natural environmental variability, ocean acidification, and commercial fisheries; climatic changes affecting habitat; predation by killer whales; contaminants; noise; ship strikes; waste management; urban runoff; construction projects; and physical habitat modifications that may occur as Cook Inlet becomes increasingly urbanized (Moore et al., 2000, Lowry et al., 2006, Hobbs et al., 2015, NMFS, 2106a). Planned projects that may alter the physical habitat of Cook Inlet include; highway improvements; mine construction and operation; oil and gas exploration and development; and expansion and improvements to ports.

    NMFS has tagged animals to identify daily patterns of movement. During summers from 1999 to 2002, satellite tags were attached to 18 beluga whales to determine their distribution through the fall and winter months (Hobbs et al., 2005, Goetz et al., 2012). Tags on four of these whales transmitted for only a few days and transmissions stopped in September for another whale (Shelden et al., 2015a). Ten tags transmitted whale locations from September through November and, of those, three transmitted into January, three into March, and one into late May (Hobbs et al., 2005, Goetz et al., 2012). All tagged beluga whales remained in Cook Inlet, primarily in Upper Inlet waters. Kernel-density probability distribution maps were generated from tag data and indicate habitat use of the area of the specified activity is low from spring through the fall as whales are concentrated higher in the inlet by the Susitna Delta, Beluaga River, and Knik and Turnigan Arm. These findings are also corroborated by the aerial survey data which documents very few sightings in the action area in June. NMFS also records sightings reported opportunistically. Six sightings near Tyonek are on record from April through October 2000 through 2014 with group size ranging from 3 to 14 animals (K. Shelden, pers. comm., January 25, 2018).

    Subsistence harvest of beluga whales in Cook Inlet is historically important to one local village (Tyonek) and the Alaska Native subsistence hunter community in Anchorage. Following the significant decline in Cook Inlet beluga whale abundance estimates between 1994 and 1998, the Federal government took actions to conserve, protect, and prevent further declines in the abundance of these whales. In 1999 and 2000, Public Laws 106-31 and 106-553 established a moratorium on Cook Inlet beluga whale harvests except for subsistence hunts conducted under cooperative agreements between NMFS and affected Alaska Native organizations. A long-term harvest plan set allowable harvest levels for a 5-year period, based on the average abundance in the previous 5-year period and the growth rate during the previous 10-year period. A harvest is not allowed if the previous 5-year average abundance is less than 350 beluga whales. Due to population estimates below 350, no hunt has occurred since 2005 when two whales were taken under an interim harvest plan.

    NMFS designated critical habitat for Cook Inlet beluga whales in 2011 (Figure A-1; NMFS 2011). In its critical habitat designation, NMFS identified two distinct areas (Areas 1 and 2) that are used by Cook Inlet beluga whales for different purposes at different times of year. Area 1 habitat is located in the northernmost region of Cook Inlet and consists of shallow tidal flats, river mouths, and estuarine areas, important for foraging and calving. Beluga whales concentrate in Area 1 during the spring and summer months for these purposes (Goetz et al., 2012). Area 1 has the highest concentrations of beluga whales from spring through fall (approximately March through October), as well as the greatest potential for adverse impact from anthropogenic threats (FR 2009). Area 2 habitat was designated for the area's importance to fall and winter feeding, as well as transit. Area 2 includes the Cook Inlet waters south of Area 1 habitat, as well as Kachemak Bay and foraging areas along the western shore of Lower Cook Inlet (Hobbs et al., 2005). Based on dive behavior and analysis of stomach contents from Cook Inlet belugas, it is assumed that Area 2 habitat is an active feeding area during fall and winter months when the spatial distribution and diversity of winter prey likely influence the wider beluga winter range (NMFS 2008b).

    Spring and Summer Distribution—Cook Inlet beluga whales show “obvious and repeated use of certain habitats,” specifically through high concentrations in the Upper Cook Inlet (critical habitat Area 1) during spring and summer months (NMFS 2008a). From approximately April through September, Cook Inlet belugas are highly concentrated in Upper Cook Inlet, feeding mainly on gadids (Gadidae spp.) and anadromous fish, including eulachon and Pacific salmon. The eulachon and all five Pacific salmon species: Chinook, pink, coho, sockeye, and chum spawn in rivers throughout Cook Inlet. Eulachon is the earliest anadromous species toappear, arriving in Upper Cook Inlet in April with major spawning runs in the Susitna and Twentymile rivers in May and July (NMFS 2008). The arrival of the eulachon appears to draw Cook Inlet beluga whales to the northern regions of Cook Inlet where they concentrate to feed on the early spring run, sometimes feeding on the eulachon exclusively before salmon arrive in the Upper Inlet (Abookire and Piatt 2005; Litzow et al., 2006).

    Annual aerial surveys conducted in June from 1998 through 2008 covering all of Cook Inlet observed the beluga whales to be almost entirely absent from mid and lower portions of the inlet and the majority located between the Little Susitna River and Fire Island in the Upper Inlet (Rugh et al., 2010). The greatest concentrations of individuals were observed in the mouth of the Susitna River and extending into the Knik Arm and toward Turnagain Arm. Only between two and 10 individuals were observed during the survey in the Lower Inlet, in Kachemak Bay. Those low sample size provides for statistical uncertainty; however, direct observations during aerial surveys provide strong evidence Cook Inlet belugas restrict their movements during spring and summer months to the extreme north of the inlet (e.g., Rugh et al., 2010).

    The Alaska Department of Fish and Game (ADF&G) collected seasonal distribution data on Cook Inlet belugas using passive acoustic recorders deployed year-round at 13 locations in Cook Inlet from 2008 to 2013 (Castellote et al., 2016). Each device was equipped with two types of recorders, an ecological acoustic recorder that monitored for low-frequency (0 to 12.5 kHz) social signals and a cetacean and porpoise detector for high-frequency (20 to 160 kHz) echolocation signals. During this study, a single recorder was deployed at Trading Bay. This device collected 9,734 acoustic effort hours (AEH) during the summer months (May to October) and 11,609 AEH during the winter months (November to April) over a 3-year period. Beluga detections were characterized by any echolocation, call, or whistle detected for any hour as a detection positive hour (DPH).

    A recent acoustic study found a relatively constant pattern of variation in beluga whale presence between summer and winter months. During the summer, the percent of belugas detected positively per hour (% DPH) was highest in Upper Cook Inlet, primarily in Eagle Bay (12.4 percent), Little Susitna River (7.6 percent), and Beluga River (4.8 percent) and lowest in the Lower Inlet (less than 1 percent), which includes Trading Bay. During the winter, the highest percent DPH was at the Beluga River (6.0 percent), while Trading Bay had the second highest percent DPH during these same months (Castellote et al., 2016). These findings agreed with the past aerial and telemetry data.

    Fall and Winter Distribution- Beginning in October, beluga whales become less concentrated, increasing their range and dispersing into deeper waters of the upper and mid-region of Cook Inlet. In late summer and fall (August to October), Cook Inlet belugas use the streams on the west side of Cook Inlet from the Susitna River south to Chinitna Bay, sometimes moving up to 35 miles upstream to follow fish migrations (NMFS 2008a). Direct winter observation of beluga whales is less frequent than in summer; however, Hobbs et al. (2005) estimated the Cook Inlet beluga whale distribution during fall and winter months based on known locations of satellite-tagged beluga whales from 1999 through 2003 (National Marine Mammal Laboratory (NMML) 1999, 2000, 2001, 2002-2003). Estimated Cook Inlet beluga whale distributions from August through March indicate that individuals concentrate their range in the upper region of Cook Inlet through September but have a much increased range from October to March, utilizing more areas of the inlet. The predicted winter range has a more southerly focal point than in summer, with the majority of time spent in the mid-region of the inlet beginning in December.

    Although there are indications that belugas may travel to the extreme south of Cook Inlet, the available data show belugas remaining in the upper to mid-Inlet through the winter months. Most likely, the dispersal in late fall and winter results from belugas' need to forage for prey in bottom or mid-waters rather than at river mouths after the seasonal salmon runs have ceased. As salmon runs begin to decline for the year, Cook Inlet belugas change to a diet of fish found in nearshore bays, estuaries, and deeper waters, including cod (Gadus morhua), Pacific staghorn sculpin (Leptocottus armatus), flatfish such as starry flounder (Platichthys stellatus), and yellowfin sole (Limanda aspera) (Hobbs et al., 2008).

    If beluga whale are in the CIPL project area, they are not expected to linger during the proposed work period (April through October) but are expected to being moving north between the Beluga River (Susitna River delta) and the McArthur River (Trading Bay) or cross the inlet from the Beluga River to Point Possession/Chickaloon Bay, presumably looking for opportunities to feed on returning anadromous fish and outmigrating smolt (pers. comm., email from K. Shelden, October 13, 2017). The distance between the project site and dense concentrations of foraging marine mammals at the mouths of major spawning rivers in upper Cook Inlet is approximately 20 to 30 kms (12 to 18 mi) and over 50 km (31 mi) between the pipeline corridor and foraging areas in Knik and Turnagain Arms.

    Harbor Seal

    Harbor seals have been observed throughout Cook Inlet. During the winter, they are primarily aquatic, but through the summer months they spend more time hauled out onshore to rest, molt, and avoid predation. During the summer months, when not hauled out, harbor seals can be found foraging at the mouths of large rivers, primarily on the west side of the inlet (Boveng et al., 2012). A multi-year study of seasonal movements and abundance of harbor seals in Cook Inlet was conducted between 2004 and 2007. This study involved multiple aerial surveys throughout the year, and the data indicated a stable population of harbor seals during the August molting period (Boveng et al., 2012).

    Steller Sea Lion

    In 1990, the Steller sea lion was added to the list of ESA species (55 FR 49204). During the early 1990s, advances in genetic technology helped to identify two distinct population segments (DPS) of Steller sea lions within the North Pacific range. The eastern DPS of Steller sea lions ranges from California north to Cape Suckling, Alaska; the western DPS ranges from Cape Suckling west to Japan, including Cook Inlet. The population estimate of western DPS sea lions decreased by 40 percent in the 1990s. (Loughlin and York 2000). In 1997, the western DPS was reclassified as endangered under the ESA. Critical habitat was designated for Steller sea lions; however, it does not occur within Cook Inlet.

    Steller sea lions do not show regular patterns of migration. Most adult Steller sea lions occupy rookeries during pupping and breeding season (late May to early July). No rookeries are known to exist in the upper or mid-areas of Cook Inlet, but several have been identified approximately 130 mi to the south, at the extreme southern tip of the Kenai Peninsula (NMFS 2008b). Steller sea lions have an extensive range during the winter months and often travel far out to sea and use deep waters in excess of 1,000 m (NMFS 2008b).

    The western DPS of Steller Sea Lion occurs in Cook Inlet but ranges south of Anchor Point around the offshore islands and along the west coast of the Upper Inlet in several bays such as Chinitna and Iniskin (Rugh et al., 2005a). Designated rookeries and haulout sites include those near the mouth of the Cook Inlet, which is well south of the Forelands and the Action Area. Critical habitat has not been designated in mid- to upper Cook Inlet and Steller sea lions are considered rare in upper Cook Inlet.

    Harbor Porpoise

    Harbor porpoises are ubiquitous throughout most of Alaska. Their range includes all nearshore areas from Southeast Alaska up to Point Barrow, including the Aleutian Islands (Gaskin 1984; Christman and Aerts 2015). The Alaska harbor porpoise population is separated into three stocks for management purposes. These include the Southeast Alaska stock, GOA stock, and the Bering Sea stock. Harbor porpoises in Cook Inlet are considered part of the GOA stock, most recently estimated at 25,987 (Hobbs and Waite 2010).

    Harbor porpoises forage on much of the same prey as belugas; their relative high densities in the Lower Inlet may be due to greater availability of preferred prey and less competition with belugas (Shelden et al., 2014). Although densities appear to be higher in the Lower Inlet, sightings in the Upper Inlet are not uncommon (Nemeth et al., 2007).

    Harbor porpoise sightings occur in all months of open water in the Upper Inlet but appear to peak in April to June and September to October. Small numbers of harbor porpoises have been consistently reported in the Upper Inlet between April and October, except recently higher numbers than typical have been observed. The highest monthly counts include 17 harbor porpoises reported for spring through fall 2006 by Prevel Ramos et al., (2008), 14 for spring of 2007 by Brueggeman et al., (2007a), 12 for fall of 2007 by Brueggeman et al., (2008), and 129 for spring through fall in 2007 by Prevel Ramos et al., (2008) between Granite Point and the Susitna River during 2006 and 2007; the reason for the recent spike in numbers (129) of harbor porpoises in the upper Cook Inlet is unclear and quite disparate with results of past surveys, suggesting it may be an anomaly. The spike occurred in July, which was followed by sightings of 79 harbor porpoise in August, 78 in September, and 59 in October in 2007. The number of porpoises counted more than once was unknown. Harbor porpoise may occur in large groups; however, this is more typical in the Lower Inlet and more commonly they occur in groups of one to three animals (Sheldon et al., 2014).

    Killer Whales

    Killer whale distribution in Alaska ranges from the southern Chukchi Sea, west along the Aleutian Islands, and south to Southeast Alaska. As a species, killer whales have been divided into two separate genetically distinct groups; these are resident and transient ecotypes (Hoelzel and Dover 1991; Hoelzel et al., 1998, 2002; Barrett-Lennard 2000). The resident ecotypes feed exclusively on fish, while the transient whales consume only marine mammals (Saulitis et al., 2000).

    Killer whales representing both ecotypes are known to occur in Cook Inlet. The subgroups include the Alaska Resident, GOA, Aleutian Islands, and Bering Sea Transient stocks. Recent population estimates of these ecotypes are 2,347 resident and 587 transient (Muto et al., 2016). During the NMFS aerial beluga surveys from 2001 to 2014, a total of 15 groups (62 individuals) were observed; all sightings took place in the lower part of the inlet, south of Anchor River (Figure A-7). Shelden et al. (2003) compiled anecdotal reports of killer whales and systematic surveys in Cook Inlet to determine effects of predations on beluga whales. Based on their findings, out of the 122 reported sightings, only 18 were in the Upper Inlet (Shelden et al., 2003).

    Humpback Whale

    On October 11, 2016, NMFS revised the listing status of the humpback whale into 14 DPSs and the species-level endangered listing was removed (81 FR 62259). Now, 2DPSs are listed as endangered, 2DPSs are threatened, and the remaining 10 DPSs are no longer listed under the ESA. Three DPSs of humpback whales occur in waters off the coast of Alaska: The Western North Pacific DPS, listed as endangered under the ESA; the Mexico DPS, a threatened species; and the Hawaii DPS, which is no longer listed as endangered or threatened under the ESA. Humpback whales in the Gulf of Alaska are most likely to be from the Hawaii DPS (89 percent probability) (Wade et al., 2016). Humpback whales that occur in Cook Inlet, albeit infrequently, are considered part of the Hawaii DPS.

    The GOA is one of the summer feeding grounds humpback whales migrate to each year (Baker et al., 1986). The GOA feeding area includes Prince William Sound to the Shumagin Islands, including Kodiak Island (Muto et al., 2016). Three humpback whale DPSs make up the GOA feeding group; these are the Hawaii DPS (not listed), the Mexico DPS (Threatened), and the Western North Pacific DPS (Endangered) (Wade et al., 2016).

    Capture and recapture methods using more than 18,000 fluke identification photographs suggest a large percentage of the GOA feeding group is comprised of the Hawaii DPS. Data from the same study indicate that the Mexico DPS also contributes to the GOA feeding group; the study was also the first to show that some whales from the Western North Pacific stock migrate to the Aleutian Islands and could potentially be part of the GOA group (Barlow et al., 2011).

    In the summer, humpback whales are present regularly and feed outside of Cook Inlet, including Shelikof Strait, Kodiak Island bays, the Barren Islands, and the Kenai and Alaska peninsulas. However, there have been several projects in Cook Inlet that have observed humpback whales in Lower Cook Inlet during the summer. From 2001 to 2014, the NMFS aerial beluga survey of Cook Inlet recorded a total of 198 humpback sightings; the majority of which occurred south of Homer. In 2014 five humpback whale groups were observed on the east side of Cook Inlet during the surveys conducted as part of the Apache project (Lomac-MacNair et al., 2014). Three of these sightings, including the mother-calf pair, were observed north of the Forelands but still well south of the Project Area.

    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 hearing 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 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 kHz;

    • Pinnipeds in water; Otariidae (eared seals): Generalized hearing is estimated to occur between 60 Hz and 39 kHz.

    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. Six marine mammal species (four cetacean and two pinniped (one otariid and one phocid) species) have the reasonable potential to be taken by the proposed project. Of the cetacean species that may be present, one is classified as low-frequency cetaceans (i.e., all mysticete species), two are classified as mid-frequency cetaceans (i.e., all delphinid and ziphiid species and the sperm whale), and one is classified as high-frequency cetaceans (i.e., harbor porpoise and Kogia spp.).

    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.

    The proposed project includes the use of various types of vessels (e.g., tugs, dive boat, sonar boat), a large barge secured by four anchors, continuous types of work (e.g., trenching, moving obstacles barge anchoring, use of a underwater tools) that, collectively, would emit consistent, low levels of noise into Cook Inlet for an extended period of time (110 days) in a concentrated area. Unlike projects that involve discrete noise sources with known potential to harass marine mammals (e.g., pile driving, seismic surveys), both the noise sources and impacts from the pipeline installation project are less well documented and, for reasons described below, may range from Level B harassment to exposure to noise that does not result in harassment. The various scenarios that may occur during this project extend from vessels in stand-by mode (tug engines on and maintaining position) to multiple vessels and operations occurring at once. Here, we make conservative assessments of the potential to harass marine mammals incidental to the project and, in the Estimated Take section, accordingly propose to authorize take, by Level B harassment.

    The proposed project has the potential to harass marine mammals from exposure to noise and the physical presence of working vessels (e.g., tugs pushing barges) other construction activities such as removing obstacles from the pipeline path, pulling pipelines, anchoring the barge, divers working underwater with noise-generating equipment, trenching, etc. In this case, NMFS considers potential harassment from the collective use of industrial vessels working in a concentrated area for an extended period of time and noise created when moving obstacles, pulling pipelines, trenching in the intertidal transition zone, and moving barges two to three times per day using two tugs. Essentially, the project area will become be a concentrated work area in an otherwise non-industrial, serene setting. In addition, the presence of the staging area on land and associated work close to shore may harass hauled-out harbor seals.

    Auditory Effects

    NMFS defines a noise-induced threshold shift (TS) as “a change, usually an increase, in the threshold of audibility at a specified frequency or portion of an individual's hearing range above a previously established reference level” (NMFS, 2016). The amount of threshold shift is customarily expressed in dB (ANSI 1995, Yost 2007). A TS can be permanent (PTS) or temporary (TTS). As described in NMFS (2016), there are numerous factors to consider when examining the consequence of TS, including, but not limited to, the signal temporal pattern (e.g., impulsive or non-impulsive), likelihood an individual would be exposed for a long enough duration or to a high enough level to induce a TS, the magnitude of the TS, time to recovery (seconds to minutes or hours to days), the frequency range of the exposure (i.e., spectral content), the hearing and vocalization frequency range of the exposed species relative to the signal's frequency spectrum (i.e., how animal uses sound within the frequency band of the signal; e.g., Kastelein et al., 2014), and the overlap between the animal and the source (e.g., spatial, temporal, and spectral). When analyzing the auditory effects of noise exposure, it is often helpful to broadly categorize sound as either impulsive—noise with high peak sound pressure, short duration, fast rise-time, and broad frequency content—or non-impulsive. When considering auditory effects, vibratory pile driving is considered a non-impulsive source while impact pile driving is treated as an impulsive source.

    Permanent Threshold Shift—NMFS defines PTS as a permanent, irreversible increase in the threshold of audibility at a specified frequency or portion of an individual's hearing range above a previously established reference level (NMFS 2016). Available data from humans and other terrestrial mammals indicate that a 40 dB threshold shift approximates PTS onset (see NMFS 2016 for review).

    Temporary Threshold Shift—NMFS defines TTS as a temporary, reversible increase in the threshold of audibility at a specified frequency or portion of an individual's hearing range above a previously established reference level (NMFS 2016). Based on data from cetacean TTS measurements (see Finneran 2014 for a review), a TTS of 6 dB is considered the minimum threshold shift clearly larger than any day-to-day or session-to-session variation in a subject's normal hearing ability (Schlundt et al., 2000; Finneran et al., 2000; Finneran et al., 2002).

    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 (similar to those discussed in auditory masking, below). 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 animal 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 time when communication is critical for successful mother/calf interactions could have more serious impacts. We note that reduced hearing sensitivity as a simple function of aging has been observed in marine mammals, as well as humans and other taxa (Southall et al., 2007), so we can infer that strategies exist for coping with this condition to some degree, though likely not without cost.

    Masking

    Since many marine mammals rely on sound to find prey, moderate social interactions, and facilitate mating (Tyack, 2008), noise from anthropogenic sound sources can interfere with these functions, but only if the noise spectrum overlaps with the hearing sensitivity of the marine mammal (Southall et al., 2007; Clark et al., 2009; Hatch et al., 2012). Chronic exposure to excessive, though not high-intensity, noise could cause masking at particular frequencies for marine mammals that utilize sound for vital biological functions (Clark et al., 2009). Acoustic masking is when other noises such as from human sources interfere with animal 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.

    Masking occurs in the frequency band that he animals utilize. Since noises generated from tugs pushing the barge, anchor handling, trenching, and pipe pulling are mostly concentrated at low frequency ranges, these activities likely have less effect on high frequency echolocation sounds by odontocetes (toothed whales). However, lower frequency man-made noises are more likely to affect detection of communication calls and other potentially important natural sounds such as surf and prey noise. It may also affect communication signals when they occur near the noise band and thus reduce the communication space of animals (e.g., Clark et al., 2009) and cause increased stress levels (e.g., Holt et al., 2009).

    Unlike TS, masking, which can occur over large temporal and spatial scales, can