Federal Register Vol. 83, No.53,

Background

Under the Plant Protection Act (7 U.S.C. 7701 et seq.), the Secretary of Agriculture is authorized to take such actions as may be necessary to prevent the introduction and spread of plant pests and noxious weeds within the United States. The Secretary has delegated this authority to the Administrator of the Animal and Plant Health Inspection Service (APHIS).

The regulations in 7 CFR part 319 prohibit or restrict the importation of plants and plant products into the United States to prevent the introduction of plant pests that are not already established in the United States or plant pests that may be established but are under the official control of an eradication or containment program.

The regulations in “Subpart—Plants for Planting,” §§ 319.37 through 319.37-14 (referred to below as the regulations), restrict the importation of plants for planting. The term plants for planting is defined in § 319.37-1 as “plants intended to remain planted, to be planted or replanted.” Plant is defined in that section as “any plant (including any plant part) capable of propagation, including a tree, a tissue culture, a plantlet culture, pollen, a shrub, a vine, a cutting, a graft, a scion, a bud, a bulb, a root, and a seed.”

On April 25, 2013, we published in the Federal Register (78 FR 24634-24663, Docket No. APHIS-2008-0011) a proposal 1 to revise the plants for planting regulations and make several related changes to the foreign quarantine notices in 7 CFR part 319. Briefly, we proposed to do the following:

• Remove provisions from other subparts in 7 CFR part 319 that regulate the importation of plants for planting and thus consolidate the requirements for importation of all plants for planting under the plants for planting regulations.

• Add most of the plants for planting that are listed as prohibited in § 319.37-2(a) to the list of plants for planting whose importation is not authorized pending pest risk analysis (NAPPRA) in accordance with current § 319.37-2a. We proposed to characterize the other prohibitions as restrictions, rather than prohibitions, and to list them as such in the Plants for Planting Manual. This manual is currently used by importers and inspectors as a reference regarding restrictions on the importation of plants for planting.

• Within the plants for planting regulations, group together the requirements that apply to the importation of all or most plants for planting.

• Move restrictions on the importation of specific types of plants for planting from the regulations to the Plants for Planting Manual. We proposed to revise how we change these restrictions. We proposed to publish a notice in the Federal Register announcing our determination that it is necessary to add, change, or remove restrictions on the importation of a specific type of plants for planting and make available a document describing those restrictions and why they are necessary. We would allow for public comment on the notice and the document it makes available. We would then respond to any comments we receive in a second notice published in the Federal Register, and implement the restrictions if our determination remains unchanged.

• Remove several lists of approved items (for example, the lists of approved growing media, packing materials, and ports of entry) from the regulations and instead provide these lists to the public in the Plants for Planting Manual. We proposed to update these lists, when necessary, using the same double-notice process we are proposing to use to update restrictions on the importation of specific types of plants for planting.

• Establish a framework for the use of integrated pest risk management measures (IPRMM) in the production of specific types of plants for planting for importation into the United States, when the pest risk associated with the importation of a type of plants for planting can only be addressed through the use of integrated measures.

• Make several minor changes to the regulations to improve their clarity and reflect current program operations.

We did not propose to make major changes to the restrictions that currently apply to the importation of plants for planting. The proposal was directed towards making the regulations easier to use and to implement.

Comments on the proposed rule were required to be received on or before June 24, 2013. We reopened and extended the deadline for comments until September 10, 2013, in a document published in the Federal Register on July 12, 2013 (78 FR 41866-41867, Docket No. APHIS-2008-0011). We reopened and extended the deadline for comments a second time, until January 30, 2014, in a document published in the Federal Register on December 31, 2013 (78 FR 79636-79637, Docket No. APHIS-2008-0011). In the latter document, we asked specifically for comments regarding whether to base the framework for the use of IPRMM on regional or international standards. We also asked for specific comments regarding the risk posed when plant brokers purchase and move plants for planting after they leave their place of production and before they are exported to the United States.

We received 17 comments by the January 30, 2014, close of the comment period. They were from producer organizations, State departments of agriculture, a foreign national plant protection organization, an environmental protection organization, and private citizens. They are discussed below by topic.

Two commenters expressed concern about the length and complexity of the proposed rule, stating that it should have been broken into separate, smaller regulatory actions.

Many of the changes in the proposed rule were dependent on each other, and making one or two at a time would have left the regulations in an unsettled state. In addition, proposing the changes in separate chunks would have made the overall process of restructuring the regulations take much longer.

One commenter stated that the updated Plants for Planting Manual should be made available for review prior to the publication of the final rule.

We will make the updated manual available upon the effective date of the final rule. Making it available earlier, when the final rule is not effective and the current version of the manual is still in use, could create confusion.

Another commenter stated that navigation of and access to the manual should be as open and easy as possible, and that stakeholders should be notified of changes.

We agree. As part of this regulatory process, we have undertaken a wholesale revision of the Plants for Planting Manual to make it easier to use. The new version of the manual will be maintained at https://www.aphis.usda.gov/import_export/plants/manuals/ports/downloads/plants_for_planting.pdf. Stakeholders can keep abreast of updates to the Plants for Planting Manual through the APHIS Stakeholder Registry; interested parties can sign up for email notifications at https://public.govdelivery.com/accounts/USDAAPHIS/subscriber/new. Finally, whenever we determine that we need to add, change, or remove phytosanitary restrictions in the Plants for Planting Manual to address the risk posed by imported plants for planting, we will publish a notice in the Federal Register requesting public comment.

We proposed to move provisions from other subparts in 7 CFR part 319 that regulate the importation of plants for planting and consolidate all requirements for importation of plants for planting in a single location.

One commenter requested clarification on whether we were limiting the plants for planting regulations to cover only some plants for planting, or whether we were clarifying that plants for planting rules do not apply to plants not for planting.

We are neither limiting the plants for planting regulations nor clarifying as the commenter suggests, but rather making sure that all plants for planting are imported in accordance with the plants for planting regulations. Subparts of 7 CFR part 319 not specifically about plants for planting had contained some provisions regulating plants for planting. For example, the sugarcane regulations in § 319.15 regulate the importation of all sugarcane plants and plant parts, whether they are for planting or not.

We proposed to remove provisions in those other subparts that applied to plants for planting and put them in the Plants for Planting Manual or to change those subparts to explicitly indicate that they did not apply to plants for planting, when applicable. For example, we proposed to amend the subpart regulating the importation of cut flowers in 7 CFR part 319 to explicitly indicate that such flowers must not be for planting.

One commenter stated that inspectors should keep the possibility of planting in mind when conducting inspections.

We agree. The definition of plant in this final rule includes any plant or plant part that is capable of propagation. This definition affords our inspectors discretion to determine whether a plant or plant part that is capable of propagation and offered for importation should be considered a plant for planting.

We proposed to retain many of the current definitions in § 319.37-1 and add a few new ones. We received comments on three of these definitions.

The definition of from specifies that an article is considered to be “from” any country or locality where it was grown, with exceptions for articles imported to Canada and subsequently re-exported to the United States under certain conditions. These conditions are specified in subparagraphs (1) through (4) of the definition. We proposed to change the terminology in the definition to reflect the proposal but did not propose any substantive modifications.

One commenter asked that we further clarify current subparagraph (3) in the definition of from. Under this subparagraph, to be considered from Canada, an article must not have been grown in a country or locality which would subject it to postentry quarantine in the United States, unless it was grown in Canada under equivalent postentry quarantine conditions. The commenter understood this provision to mean that such articles would be subject to two post-entry quarantines, one in Canada following importation from the country in which it was grown, the other in the United States following importation from Canada. The commenter stated that if Canada and the United States fully harmonize their postentry quarantine requirements, the article should be allowed to be imported directly from Canada into the United States, without a second postentry quarantine.

We agree. Should such harmonization occur, we will initiate rulemaking accordingly.

With respect to current paragraph (4) in the definition of from, which requires plants for planting to not be imported in growing media in order to be considered “from” Canada, another commenter stated that we should allow the importation of plants for planting produced in APHIS programs for the importation of plants in growing media but imported into Canada before movement to the United States to be considered “from” Canada.

We understand the commenter to be referring to plants in growing media that are produced in one of two manners: Either (1), the plants have been grown in the United States, exported to Canada for finishing, then subsequently offered for importation back into the United States, or (2), the plants have been produced in a third country under conditions that would make the articles eligible for importation into the United States, exported to Canada, then subsequently offered for importation into the United States. With regard to the first class of articles, we are currently in discussions with the national plant protection organization (NPPO) of Canada regarding the importation of such articles into the United States, and will take appropriate follow-up action based on this dialogue.

With regard to the second class of articles, our evaluation will be on a case-by-case basis based on the safeguards applied to the articles within Canada.

We proposed to establish a new definition of the term place of production. The proposed definition indicated that the term may include “a production site that is separately managed for phytosanitary purposes.” One commenter stated that we should modify this definition to be consistent with the definition in International Plant Protection Convention's (IPPC) Glossary of Phytosanitary Terms,2 which refers to multiple production sites.

We based our proposed definition on the IPPC definition; the inconsistency was inadvertent. We have corrected the definition in this final rule.

We proposed to define plants for planting as: “Regulated plants (including any plant parts) that are for planting or capable of being planted.” This proposed definition differs from the IPPC definition of that term. One commenter suggested that IPPC signatories, such as the United States, should use the IPPC definitions, or submit proposed revisions to those definitions to the IPPC.

Although we intended to use a version of the definition of plants for planting not substantively different from the IPPC's, the definition in our proposed rule did not include the intended use of the article. After reviewing our proposed definition in light of the commenter's concerns, we determined that the IPPC definition, “plants intended to remain planted, to be planted, or replanted,” emphasizes the intended use of the article, and that this is an important distinction. Intended use has long played a role in our determining whether a specific article is a plant for planting; for example, it is our basis for determining whether to regulate a commercial consignment of potato tubers, which are articles capable of propagation, as plants for planting. Accordingly, in this final rule, we have decided to use the IPPC definition of plants for planting, which had been in the previous regulations.

In § 319.37-2 of the regulations, paragraphs (a) and (b) currently list several taxa of plants for planting as prohibited. We proposed to remove these lists from the regulations and add most of these taxa to the NAPPRA lists.

One commenter asked for clarification on what plants or groups of prohibited plants would not be added to the NAPPRA lists.

The NAPPRA category lists taxa of plants for planting that are not authorized for importation pending pest risk analysis, as well as the parts of those plants that are subject to NAPPRA. We proposed to add those taxa listed in § 319.37-2 as prohibited articles to the NAPPRA list if they were listed in § 319.37-2 without any additional conditions. Some of the prohibited taxa in § 319.37-2 had additional conditions regarding their prohibited status, e.g., the articles were prohibited importation only if they were a certain size or age, or only if they were imported in pulp. Those prohibitions can more accurately be characterized as restrictions on the importation of plants for planting, rather than outright prohibitions. Accordingly, we are characterizing them as such and moving the restrictions to the Plants for Planting Manual.

One commenter asked how the proposal to add the prohibited taxa to the NAPPRA list would affect any pest risk analyses (PRAs) that had been done for the taxa. Another asked why we chose to add the prohibited taxa to the NAPPRA category given that PRAs have presumably already been done for these plants, and their pest risk considered such that we prohibited their importation into the United States.

To answer the former commenter, any new PRAs conducted regarding taxa on the NAPPRA list supersede previously conducted PRAs.

To answer the latter commenter, although pest risk information led us to prohibit the importation of the taxa listed in § 319.37-2, this information may change. For example, a foreign country may undertake eradication efforts to combat a particular pest, or new measures may become available to mitigate the risk associated with the pest. Additionally, the quarantine significance of a particular pest may be reevaluated based on new scientific information, or the introduction and dissemination of that pest within the United States. Adding the prohibited taxa to the NAPPRA category allows us to reexamine the risk in light of these possible changes.

Rather than simply add the current prohibited taxa to the NAPPRA category, one commenter asked that we propose to add the taxa to the NAPPRA category through an additional regulatory action and opportunity for public comment.

We do not believe it would be appropriate or necessary to request additional public comment on the addition of prohibited taxa to the NAPPRA list. When we added those taxa to the prohibited list based on their quarantine pest risk, we took public comment through the rulemaking process. Additionally, we afforded the public an opportunity to comment on the addition of the taxa to the NAPPRA list during the comment period associated with the proposed rule.

One commenter asked where information about the taxa of plants for planting that are NAPPRA would be found. Specifically, the commenter asked whether the information would be maintained both on the Plants for Planting website and in the Plants for Planting Manual.

The information will be maintained solely in the Plants for Planting Manual; the Plants for Planting website will indicate this and link to the manual. Maintaining the list in two different places could result in discrepancies between the two lists. We have reformatted the lists based on this decision to move them to the Plants for Planting Manual.

Previously, we had maintained two NAPPRA lists on the internet, one of taxa that we have determined to be quarantine pests and another of taxa that we have determined to be hosts of a quarantine pest. In adding the NAPPRA taxa to the Plants for Planting Manual, however, we discovered that a clearer and more user-friendly format was simply to list all NAPPRA taxa alphabetically in one list. As such, we have made a slight change to proposed paragraph (a) of § 319.37-4. The paragraph had stated that there are two lists of NAPPRA plants for planting. It now indicates that there are two categories of NAPPRA plants for planting.

We proposed to move the current permit requirements from § 319.37-3 to § 319.37-5 and make a few changes. One of the changes we proposed was to change how the current permit requirements are presented. Rather than indicate which lots of plants for planting must be imported with a permit, we proposed to indicate that all lots of plants for planting must be imported with a permit, with exceptions listed in the Plants for Planting Manual.

One commenter stated that the new proposal appeared to require permits for all plants, while the previous regulations exempted lots of 13 or fewer plants. The commenter requested further explanation and the opportunity for public comment on this change. Another commenter supported what the commenter believed was our proposal to require permits for lots containing 12 or fewer plants. The regulations exempted, among other things, lots of 13 or more plants from the permit requirement if they are composed of seeds of herbaceous plants, precleared bulbs of a taxon approved by APHIS for preclearance, or sterile cultures of orchid plants. One commenter stated that bulbs should not be required to be accompanied by a permit, and asked us to confirm that existing bulb import programs (which do not involve the issuance of permits) would remain in place.

We did not propose to remove or otherwise alter any exemptions from permitting for plants for planting. We merely proposed to move the exemptions from the regulations to the Plants for Planting Manual. We believe the Plants for Planting Manual affords us an opportunity to present the exemptions more clearly, and in a manner that is more accessible to the general public.

The requirement that lots of 13 or more plants be accompanied by a permit also exempted lots of any size if they were from Canada. One commenter asked whether we should continue to allow plants to be imported from Canada without a permit, as this could leave a substantial gap in our information about what plants we import and where they are from. The commenter noted that 95 percent of imported woody shrubs and trees come from Canada.

The exemption is long-standing and has not resulted in the introduction of quarantine plant pests into the United States. Removing it in the absence of demonstrable quarantine plant pest risk is not justified.

One commenter stated that the new regulations should reflect the adoption of controlled import permits (CIP).

We agree. After the proposed rule to revise the plants for planting regulations was published, we published a final rule on May 2, 2013 (78 FR 25565-25572, Docket No. APHIS-2008-0055) establishing provisions in a new § 319.6 for the issuance of CIPs for articles otherwise prohibited or restricted from importation, including plants for planting. The May 2013 final rule made several changes to the plants for planting regulations as part of establishing the CIP provisions. We are incorporating most of those changes into the revision of the plants for planting regulations in this final rule, and have made corresponding changes to proposed §§ 319.37-1, 319.37-4, 319.37-5, and 319.37-23.

We are not incorporating one provision of the final rule that implemented CIPs, which required plants for planting imported into postentry quarantine to be accompanied by a CIP. When we implemented that final rule, we discovered that it had inadvertently changed the regulatory status of plants for planting that are subject to postentry quarantine from restricted articles to prohibited articles. This caused significant confusion among stakeholders, and had the unintended effect of significantly restructuring our postentry quarantine programs by exempting plants for planting intended for postentry quarantine from the general requirements of the regulations. As a result, operationally, we have not required CIPs for plants for planting intended for postentry quarantine for several years.

One commenter made the general comment that permits should only be required when the importation of the plant is prohibited or allowed under certain prescribed conditions. For other plants for planting that are allowed entry, import requirements should be communicated in a general manner to exporting countries to allow NPPOs to process and distribute the information to their inspectors as well as their stakeholders.

When we consider the plant pest risk associated with the importation of plants for planting, we must consider both the risk posed by the articles and the risk posed by the person importing the articles. Requiring prospective importers to apply for a permit allows us to deny or revoke permits to applicants who have failed to honor APHIS plant import regulations in the past or who otherwise appear to pose a risk of noncompliance. We discuss this at greater length in a final rule that we published in the Federal Register (79 FR 19805-19812, Docket No. APHIS-2011-0085) on April 10, 2014. That rule amended, among other things, the conditions under which plants for planting permit applications are denied within APHIS.

On a related matter, the April 2014 rule also amended the conditions under which plants for planting permits are revoked within APHIS. Those amended conditions are retained in this final rule.

We proposed to move the requirements for phytosanitary certificates from § 319.37-4 to § 319.37-6. In moving them, we proposed to remove three paragraphs in current § 319.37-4 that describe programs under which a phytosanitary certificate is not required, and replace them with general standards that encompass these three current programs and allow for the development of future programs. Specifically, we proposed to state that that the Administrator may authorize the importation of some types of plants for planting without a phytosanitary certificate if the plants for planting are accompanied by equivalent documentation agreed upon by the Administrator and the NPPO of the exporting country as sufficient to establish the origin, identity, and quarantine pest status of the plants.

One commenter stated that the requirement to identify place of origin on documentation that substitutes for a phytosanitary certificate would be unworkable in the context of the Canadian greenhouse certification program, which had been set out in paragraph (c) of § 319.37-4. The commenter pointed out that, under that program, Canadian producers were not currently required to document the origin of the plants exported under this program. Implementing this change, the commenter stated, would create a new administrative burden for program participants.

It was not our intention to create new burdens for participants in this program, but rather to put in place general language that could encompass all the current and future programs under which phytosanitary certificates are not required.

In this final rule, we are changing proposed § 319.37-6 to indicate that the Administrator may authorize the importation of types of plants for planting without a phytosanitary certificate if the plants for planting are accompanied by equivalent documentation agreed upon by the Administrator and the NPPO of the exporting country as sufficient to establish the eligibility of the plants for importation into the United States. We believe this will accommodate the Canadian greenhouse-grown plant program and address the commenter's concern.

We proposed to move § 319.37-10, which contained requirements for marking and identity of imported plants for planting, to proposed § 319.37-7 and make minor changes to it.

One commenter noted that proposed § 319.37-7(a) would require any imported plants for planting to be marked with the number of the written permit authorizing the importation, if one was required. The commenter stated that it was unclear whether every individual plant would have to be marked or if the mark applied to the whole consignment of plants. The commenter expressed concern about the administrative burden that would result if each individual plant were required to be marked, and asked for clarification.

We intend for each consignment of plants for planting to be marked with the permit number, not each individual plant. We have changed the text of § 319.37-7 to reflect this.

One commenter stated that some requirements in the section appeared to be new. The commenter recommended that the requirements be moved to the Plants for Planting Manual, since they are modified by the ports from time to time, in recognition of changing trade and shipping patterns and to improve the inspection process.

Except for some terminology changes, the requirements in proposed § 319.37-7 were identical to current § 319.37-10, which has been in place for decades. We are not aware of these requirements being modified at the ports of entry; they represent a minimum amount of information that should be conveyed about every consignment of plants for planting for the purposes of identification and, if a pest is found at port-of-entry inspection, for traceback.

The regulations governing ports of entry for imported plants for planting were found in § 319.37-14. We proposed to move them to § 319.37-8 and make some changes. The regulations had stated that any regulated article required to be imported under a written permit pursuant to § 319.37-3(a)(1) through (6) must be imported or offered for importation at a U.S. Department of Agriculture (USDA) plant inspection station. We proposed to indicate instead that any plants for planting required to be imported under a written permit pursuant to proposed § 319.37-5(a), if not precleared, may be imported or offered for importation only at a USDA plant inspection station listed in the Plants for Planting Manual.

One commenter noted that the proposed provision did not precisely parallel the previous regulations, in that the current language only requires certain plants for planting that must be imported under a written permit to enter at a USDA plant inspection station, while the proposed language would have required all plants for planting that must be accompanied by a permit to enter at a USDA plant inspection station. The commenter stated that the revised regulations should be consistent with the previous regulations.

We agree with the commenter. We had intended to propose language substantively identical to the scope of the previous requirements, which had required plants for planting that must be imported under a written permit, if not precleared, to be imported or offered for importation only at a plant inspection station, with limited exceptions. Our intent was not to remove any of these exceptions.

Accordingly, we have revised the proposed language to state that any plants for planting required to be imported under a written permit in accordance with § 319.37-5(a), if not precleared, must be imported or offered for importation only at a plant inspection station, unless the Plants for Planting Manual indicates otherwise. The Plants for Planting Manual will list the conditions under which an imported plant for planting does not have to be offered for importation at a plant inspection station. This change will preserve the status quo while allowing more flexibility to change these conditions in the future should a change be warranted.

Proposed § 319.37-10 set out requirements for the importation of plants for planting in growing media. It was based on previous § 319.37-8, but we proposed to revise the current regulations to move restrictions on the importation of specific types of plants for planting from the regulations to the Plants for Planting Manual and to add a notice-based process for updating the list of approved growing media.

One commenter expressed concern that our proposed regulations did not specifically allow the importation of plants for planting grown in agar or agar-like tissue culture medium. The commenter asked us to confirm that no new restrictions are part of this revision with respect to plants for planting that are currently allowed into the United States in agar or agar-like growing media.

We did not propose to make any changes to the current provisions regarding the importation of plants for planting in agar or agar-like growing media; we simply proposed to move them to the Plants for Planting Manual.

One commenter asked that we change the current restrictions to allow the importation of tissue culture plants that have been produced in completely sterile conditions but are contained in sterile peat, rather than in transparent agar or other tissue culture media.

As we did not propose to make any changes to the current restrictions on the importation of plants for planting in growing media, making such a change would be outside the scope of this final rule. However, the changes we are making in this final rule will allow for more timely addition of this exemption to the Plants for Planting Manual, should we determine that the requested change is warranted.

Several commenters had questions about the streamlined process we proposed in § 319.37-20 for making changes to the Plants for Planting Manual.

One commenter asked to confirm that the process will apply to requests from foreign trading partners seeking to export new types of plants for planting in growing media to the United States.

The process will be used to make all changes to the restrictions on the importation of specific types of plants for planting, including importation of any specific type of plants for planting in growing media.

One commenter expressed concern regarding whether changes to the Plants for Planting Manual would be readily evident to stakeholders. The commenter also asked that sufficient time be provided for comments from stakeholders, and inquired whether there will be additional notification through the PPQ Stakeholder Registry to advise stakeholders of changes. Another commenter stated that it is the commenter's understanding that the comment period will typically be 60 days.

The second commenter is correct. We will typically provide for a comment period of 60 days on notices to change restrictions in the Plants for Planting Manual, and we have the option of extending the comment period upon request. We will provide notice of all changes we propose and all changes we make to the Plants for Planting Manual through the Stakeholder Registry.

One commenter expressed concern that making it easier to propose to change the requirements for importing specific types of plants for planting could result in a very large number of proposals being posted at one time, overwhelming a stakeholder's resources to respond by posted deadlines. The commenter asked how the process will be managed to facilitate stakeholder input.

Stakeholders will still have the opportunity to submit comments on proposed changes. Making the restrictions on the importation of planting for planting easier to update may result in more updates, but we hope that they will also be smaller in scope than our periodic amendments to the regulations have been. Wherever possible, we will avoid requesting comment on many actions at once. We also have the option of extending comment periods if stakeholders indicate they are unable to provide input on any changes within the initial comment period.

We proposed to set out a framework for the development of integrated pest risk management measures (IPRMM) for the importation of plants for planting in § 319.37-21. The framework covered pest management and traceability at the place of production; administration of the program by APHIS and the NPPO of the supporting country; the responsibilities of plant brokers; audits of the program; and actions to take in case of noncompliance.

In the past, we have referred to these programs as “systems approaches.” We stated in the proposed rule that the term “integrated pest risk management measures” in the plants for planting regulations is consistent with the North American Plant Protection Organization's (NAPPO) Regional Standard for Phytosanitary Measures (RSPM) No. 24 and ISPM No. 36 and industry terminology. The term also emphasizes the fact that such programs involve multiple measures, each of which plays a necessary part for a comprehensive approach to managing pest risk.

One commenter stated that IPRMM were not defined as being composed of multiple separate measures that act synergistically to mitigate plant pest risk. The commenter stated that the elements of separate action and synergistic effects have long been a foundational principle of systems approaches. The commenter asked that we state explicitly in the regulations that the agency will incorporate the elements of separate action and synergistic effects into its requirements for integrated pest risk management programs.

In an IPRMM, every measure may be necessary to prevent the plants from being infested by a particular pest, rather than the measures having separate, synergistic effects as in a classic systems approach. The program for production of Pelargonium and Solanum spp. free of Ralstonia solanacearum race 3 biovar 2, which had been specified in § 319.37-5(r)(3) of the plants for planting regulations, is an example of an IPRMM; each of the production practices in the paragraph must be followed or there will be a significant risk of introduction of the pathogen into the production site. Therefore, although some IPRMM are likely to incorporate the effects of separate action and synergistic effects, it would be inappropriate to state that we will incorporate these into every IPRMM. However, where we can achieve such effects, we will consider them as we design our programs.

The proposed rule stated that we would require plants for planting to be imported in accordance with IPRMM when appropriate. Several commenters asked for further information about when we might consider IPRMM appropriate for the importation of plants for planting and whether we would require them for every type of imported plants for planting, or if there would be exceptions. One commenter asked whether certain host/pest associations would be subject to IPRMM, and stated that they seemed to be most valuable for asymptomatic, cryptic, or seasonally symptomatic pests and pathogens.

Other commenters made recommendations about when we should employ such measures. One stated that they should be employed for all plants for planting to maintain a high level of protection. Two commenters stated that other mitigation strategies may be appropriate, depending on the circumstances.

We did not intend that IPRMM would be used for all imported plants for planting. Such measures, properly implemented, can provide a high level of protection against pests that are otherwise difficult to detect or that pose a high risk. However, an IPRMM approach is not necessary for all types of imported plants for planting. For plants for planting covered by the inspection and certification program that had been found in § 319.37-5(a), for example, a simple inspection is sufficient to assure freedom from quarantine pests.

Our goal is to establish the least restrictive measures for the importation of plants for planting that will prevent the introduction of quarantine pests into the United States. The IPRMM framework described in proposed § 319.37-21 is a means to achieve that goal, but it will not be the only means we use.

In response to these comments, we have changed the introductory text of proposed § 319.37-21 to indicate that IPRMM will be developed when such measures are necessary to mitigate risk.

We stated in the proposed rule that our IPRMM framework was based on RSPM No. 24 and was consistent with the IPPC's ISPM No. 36, both of which address plants for planting.

One commenter supported basing our proposed measures on RSPM No. 24. Other commenters stated that they should be based on ISPM No. 36. Those commenters stated that using the international standard would make it easier for growers and exporters to adopt and meet a single standard that is applied globally. They also favored the approach of ISPM No. 36, which incorporates some general baseline measures for growing plants for planting and offers the ability to develop pest-specific measures should they prove necessary. One of these commenters stated that the RSPM is far more specific in its requirements than the ISPM, and that the specificity is not appropriate and will not encourage participation. The minimal components that are part of the general standards in the ISPM, this commenter stated, would encourage producers to adopt the measures; the RSPM has the potential to be complex and burdensome on growers.

We believe that some of these comments may have arisen from confusion about the applicability of IPRMM. We would only require plants for planting to be imported under these measures if the risk warrants it; these will not be general requirements for exporting plants for planting to the United States.

In that sense, our regulatory approach is similar to that of ISPM No. 36. As revised by this final rule, the regulations will contain general standards for the importation of plants for planting, and restrictions on the importation of specific types of plants for planting will be found in the Plants for Planting Manual. The framework in § 319.37-21 is simply one way we plan to address the risks associated with specific types of imported plants for planting.

One commenter noted that the NAPPO Plants for Planting Panel that authored RSPM No. 24 subsequently compared the NAPPO and IPPC standards and recommended the following: “In light of the many similarities with ISPM 36, maintaining RSPM 24 may well cause confusion for NAPPO countries trying to implement both standards and [we recommend] that RSPM 24 not be maintained.”

The quote provided by the commenter is correct. However, the comparison document was not the final word from NAPPO but was intended to be the subject of further discussion. In fact, NAPPO made the decision to maintain RSPM No. 24, incorporating references to ISPM No. 36.3 The RSPM was most recently revised in August 2013. As the document noted, the two standards are very similar, but the NAPPO Plants for Planting Panel concluded that the differences were significant enough to maintain two separate standards.

One commenter stated that we should pilot ISPM No. 36 with high-volume plants for planting trading partners as the first step in reducing the largely unmitigated risks of such trade.

As stated earlier, we only intend to require IPRMM in response to an identified pest risk. However, we believe the general practices in ISPM No. 36 are baseline practices for anyone who wishes to maintain a successful plants for planting production facility.

One commenter stated that we should indicate in the regulations that we will rely on the Annex to ISPM No. 36 when evaluating pest risk and on section 2.2.1.2 and Appendix 1 to the standard in developing mitigation measures.

We do not believe specific references in the regulations to these sections of ISPM No. 36 are necessary. As a signatory to the IPPC, we are committed to taking actions that are consistent with any relevant ISPMs. In addition, the specific sections of the ISPM may change or be removed, meaning we would have to change our regulations to reflect that. One goal of this rulemaking is to reduce the number of changes we have to make to keep the regulations current so including references to specific sections of the ISPM would be counterproductive.

One commenter noted two differences between ISPM No. 36 and RSPM No. 24:

• ISPM No. 36 does not exclude plants as pests, while RSPM No. 24 does.

• ISPM No. 36 excludes seeds from consideration, while RSPM No. 24 does not.

The commenter expressed openness to including plants as pests in IPRMM, and felt that seeds should be excluded.

The aim of IPRMM is to prevent the introduction of quarantine pests via the importation of plants for planting. A plant that was itself a quarantine pest could not have measures applied to it to prevent it from being a quarantine pest, meaning that it is appropriate to exclude pest plants from IPRMM. However, if we identify a seed-borne pathogen as a pest, we may need to develop IPRMM to ensure that the pathogen is not present in imported seed. Therefore, we are making no changes in response to these comments.

One commenter encouraged us to implement IPRMM so that any enterable type of plants for planting grown under those measures will also be allowed entry into the United States in approved growing media. The commenter pointed out that it is currently our policy to conduct pest risk assessments each time a country requests authorization to import a taxon of plants for planting in approved growing media into the United States, even if the same taxon is already authorized importation into the United States, if it is bare-rooted. The commenter stated that, after the final rule has been published, a pest risk assessment for every new plant and growing media combination should not be a mandatory requirement anymore, and that instead an approved IPRMM system will allow a currently enterable plant to be imported in growing media.

As plants in growing media pose different risks than plants not in growing media, we will continue to consider the risk they pose separately. We would need to identify the pests that could be introduced in growing media and develop separate mitigations for them, as we do now. However, we are open to the possibility of IPRMM for plants in growing media that could address all types of quarantine pests that could be associated with a type of plants for planting.

One commenter asked us to establish clear criteria for the approval of IPRMM so that the NPPO of an exporting country, along with the NPPO's stakeholders, can evaluate whether a proposed use of IPRMM will be feasible. The commenter noted that the proposed rule did not specify a timeframe for the approval process for IPRMM.

We will develop IPRMM in consultation with foreign NPPOs that desire to export plants for planting to the United States. We do not want to put in place requirements that an exporting country cannot meet; where difficulties arise, we will work with exporting countries to find equivalent mitigations. The framework for IPRMM is open to the use of any means to effectively mitigate the pest risk, as it allows places of production and NPPOs to come up with pest management plans for their facilities.

As with our other programs for importation of plants and plant products, the time necessary to develop and approve a set of IPRMM will vary with the number of pests that must be mitigated and the complexity of the mitigations that are necessary.

One commenter stated that the current regulations for importation of plants in growing media in § 319.37-8 require that APHIS and the NPPO of the exporting country establish a written agreement for enforcement of the regulations, which is reflected through a bilateral workplan. The commenter asked whether the workplans would be replaced by IPRMM or would continue to exist in parallel with such measures.

We are not making any changes to our existing use of workplans to help implement the plants for planting regulations. When we develop IPRMM, it is likely that a workplan will be necessary to implement them.

Paragraph (a) of proposed § 319.37-21 describes the responsibilities of the place of production. It refers to documentation required under proposed paragraph (a)(5), which required documentation of program procedures being maintained by the place of production and available to the NPPO of the exporting country and APHIS upon request.

One commenter suggested that this reference should be to proposed paragraph (a)(6), which requires recordkeeping, rather than (a)(5).

We believe the documentation of program procedures maintained by places of production should be available to the NPPO of the exporting country and APHIS, but so should records required under paragraph (a)(6), as the commenter suggests. In this final rule, the reference includes both paragraphs.

Paragraph (a)(4) of proposed § 319.37-21 set out requirements for approved places of production to maintain traceability. We proposed that the system would at a minimum have to account for:

• The origin and pest status of mother stock;

• The year of propagation and the place of production of all plant parts that make up the plants for planting intended for export;

• Geographic location of the place of production;

• Location of plants for planting within the place of production;

• The plant taxon; and

• The purchaser's identity.

One commenter stated that the requirements for traceability in RSPM No. 24 are far too prescriptive, often beyond the capacity of a grower. The commenter stated that it is impossible, for many faster‐growing crops, to keep records on the location of plants for planting within the place of production. Within greenhouse production, the commenter stated that the limitations of space, timing of turns, and modern production practices would make it nearly impossible and certainly too costly to accomplish this level of traceability. The commenter added that in nursery production there are often multiple growing operations involved with producing a marketable crop, typically many iterations away from mother stock. In the commenter's opinion, the reality of pest and pathogen dispersal make it overwhelmingly unlikely that information connecting a plant to mother stock would be of any value and would be costly far beyond its utility. The commenter stated that the same general concern about being overly specific applies to many of the prescriptive elements in this section.

We disagree with the commenter that these requirements are unrealistic. Knowing where in the production facility plants are located, for example, is not only necessary to maintain phytosanitary security but also to fulfill orders. Records of the mother stock used to produce plants allows for tracking which stock is most successful, as well as providing traceability in the event of a pest outbreak. A well-maintained place of production will keep these records as a means to ensure that its plants grow well so that orders can be fulfilled safely and efficiently.

ISPM No. 36 supports our judgment. The standard indicates in section 2.1.1 that the following conditions (among others) should be included in the approval process for producers seeking to use the general integrated measures:

• Maintaining an updated plan of the place of production as well as keeping records of when, where and how plants for planting were produced, treated, stored or prepared for movement from the place of production (including information on all plant species at the place of production and the type of plant material such as cuttings, in vitro cultures, bare root plants).

• Keeping records for a period determined by the NPPO of the exporting country that verify where and how plants for planting were purchased, stored, produced, distributed and any other relevant information on their plant health status.

These are substantively identical to the traceability requirements in proposed paragraph (a)(4).

However, we have reviewed the proposed traceability requirements and determined that they may not all need to be in place for every set of IPRMM. Different pests will require different levels and types of traceability. Therefore, this final rule indicates that, depending on the nature of the quarantine pest, the system may need to include those traceability elements. This change will ensure that our traceability requirements in IPRMM are not unnecessarily restrictive.

Paragraph (c)(1) of proposed § 319.37-21 required the NPPO of the exporting country to provide APHIS with information about, among other things, the pests associated with the plant, including prevalence, distribution, and damage potential. One commenter asked how the exporting country can assess the potential damage that might occur in the United States.

If the exporting country has information about the damage a plant pest causes in that country, we can use it to inform our assessment of the potential damage the pest can cause in the United States. Requesting such information is consistent with the requirements for requests to change the general requirements for importing a plant or plant product into the United States in § 319.5.

Paragraph (d) of proposed § 319.37-21 addressed the responsibilities of plant brokers trading in plants for planting for export that are produced in accordance with IPRMM. We proposed to require plant brokers to be approved by the NPPO of the exporting country or its designee. Under the proposed rule, plant brokers would have to ensure the traceability of consignments from an approved place of production or production site and maintain the phytosanitary status of the plants in a manner equivalent to an approved place of production from purchase, storage, and transportation to the export destination. Brokers would also have to document their processes for verifying status and maintaining traceability.

We received several comments on these provisions. One commenter opposed the proposed requirements for plant brokers, stating that they were overly restrictive and should be rewritten in consultation with industry. The commenter specifically opposed the requirements that brokers maintain the phytosanitary status and traceability of their plants, stating that brokers are likely commingling material from several places of production. The commenter supported the approach of ISPM No. 36, which limits integrated measures to the place of production.

Five commenters supported the proposed provisions. One stated that brokers play an extremely important role in ensuring the integrity of the proposed measures and that consignments of plants that have been produced under different IPRMM or outside any such measures cannot be allowed to be mixed because such mixing would undermine the system. Another stated that, in the commenter's experience, sales demands or lack of inventory lead to substitutions by brokers, especially if untrained employees are responsible for fulfilling orders, and supported the requirements as an effort to ensure that careful consideration is given to the role and responsibilities of brokers in the importation process.

We are retaining the proposed provisions for plant brokers in this final rule. We agree with the latter commenters that the step of the export chain after the plants leave the place of production and before they are exported is crucial to ensuring the success of IPRMM. For example, if a plant was produced in accordance with measures designed to exclude an insect pest, it would need to be secured to prevent infestation after it left the production site. In particular, commingling the plants for planting with plants for planting not produced in accordance with IPRMM could result in infested plants being exported to the United States. Brokers have a responsibility to maintain such security.

One commenter stated that we should prohibit plant brokers from commingling plants from various sources.

The requirement that plant brokers maintain the phytosanitary status of their plants will prevent plant brokers from commingling plants for planting produced in accordance with IPRMM and plants not produced in accordance with such measures. However, there is no phytosanitary risk-based reason to prohibit plant brokers from commingling plants for planting produced in accordance with IPRMM from different places of production. The places of production with commingled plants assume a risk that, if a pest is detected at the port of entry, and, depending on the biology of the pest, it is necessary to destroy, treat, or re-export the shipment, all the plants in the shipment would be affected.

One commenter asked whether plant brokers are considered plant exporters. Another asked whether brokers who take possession of plants for planting at U.S. ports would be covered by proposed paragraph (d).

We do not know the distinction the first commenter intends between the terms “plant broker” and “plant exporter.” In response to the second comment, brokers who take possession of plants for planting at U.S. ports would not be covered by the IPRMM. However, these two comments indicate to us that we need to define the term “plant broker” more clearly. RSPM No. 24 includes a definition that reads as follows: “An entity that purchases or takes possession of plants for planting from an approved place of production for the purpose of exporting those plants without further growing beyond maintaining the plants until export.” In this final rule, we are adding this definition of plant broker to § 319.37-2 to provide further clarity.

One commenter asked about the rationale for requiring plant brokers to be officially approved, noting that such a requirement does not exist currently when exporting plants for planting to the United States. The commenter stated that such a requirement could be a barrier to trade, preventing brokers from taking advantage of export opportunities. The commenter recommended that certification of traceability be left to the NPPO of the exporting country.

As discussed earlier, we will only use IPRMM when the pest risk warrants doing so. Pests for which such measures will be developed will likely be high-risk, difficult or impossible to detect through visual inspection, or both. In such cases, we believe plant brokers must be approved by the NPPO of the exporting country. This will ensure additional accountability in the context of the IPRMM. As noted later in the framework, a plant broker could be suspended from participating in an IPRMM program if he or she was found to have failed to meet the program requirements. In order to be suspended, the plant broker must first be approved.

It is important to note again that approval of plant brokers by the NPPO of the exporting country will not be a general requirement for the importation of all plants for planting, just those whose importation will be subject to IPRMM. Plant brokers who, for whatever reason, cannot or do not want to get approval from their NPPO to act as plant brokers in IPRMM programs will be able to participate in the export of other plants. To make this clear, this final rule modifies proposed paragraph (d) to indicate that the requirements for plant brokers only apply when they trade in plants for planting produced in accordance with IPRMM.

One commenter asked how traceback would affect plant brokers and approved production sites or places of production if a pest was detected at the port of entry in a consignment of plants for planting produced in accordance with IPRMM. The commenter asked how traceback would function to decide at which point the system failed, and whether the place of production or the broker would be held responsible. The commenter also asked what remedies would be applied if the broker was not approved.

Under our current regulations and in accordance with international standards, when a pest is detected at the port of entry in exported plants for planting, the NPPO of the exporting country conducts traceback to determine where phytosanitary security may have been compromised. This would continue to be the case for any plants for planting produced in accordance with IPRMM. Responsibility would be determined based on the investigation. Any place of production or plant broker not meeting the conditions of the IPRMM would be suspended. If a broker is not approved to participate in the IPRMM program, APHIS and the NPPO of the exporting country would work together to determine whether tighter controls should be applied.

As noted earlier, the proposed plant broker requirements included a requirement that the brokers maintain the phytosanitary status of the plants in a manner equivalent to an approved place of production from purchase, storage, and transportation to the export destination. We also proposed to require plant brokers to document their process for verifying status.

One commenter asked how a broker would write up a “place of production” manual and audit it.

We believe the wording of the proposed requirement may have created some confusion. We do not intend for plant brokers to maintain the phytosanitary status of plants exactly as a place of production would, but rather to ensure that the plants remain free of the pests of concern after they leave the place of production. For example, if the pest of concern is an insect pest, the place of production may be required to have double-entry doors, trapping and monitoring, or other such mitigations. The plant broker may be able to secure the plants simply by keeping them in a sealed container or making sure they are covered with insect-proof mesh at all times. To make this clear, we are removing the words “in a manner” from the proposed text, so that the broker is required to maintain the phytosanitary status of the plants after they leave the place of production but not necessarily to use the same methods as the place of production to do so.

Paragraph (e) of proposed § 319.37-21 set out requirements for external audits of IPRMM. Paragraph (e)(1) set out provisions for APHIS audits.

One commenter stated that it is considered the responsibility of the NPPO of the exporting country to verify compliance, not the importing country, under the IPPC. The commenter also objected to the idea that APHIS would audit the performance of the NPPO of the exporting country.

We agree with the commenter. The proposed requirements indicated that APHIS or its designee will periodically audit the system to ensure that it continues to meet the stated objectives, but the performance of the NPPO will not be audited. In the proposed rule, we indicated that post-approval audits will include inspection of imported plants for planting, site visits, and review of the IPRMM and internal audit processes of both the place of production and the NPPO of the exporting country. We are indicating in this final rule that such audits may include those things, as we so require, to allow for more leeway to choose the appropriate level of auditing.

Paragraph (f) of proposed § 319.37-21 set out a framework for determining actions in case of noncompliance. It stated that regulatory responses to program failures will be based on existing bilateral agreements and that APHIS will specify the consequences of noncompliance to the NPPO of the exporting country.

One commenter stated that we should incorporate the strongest penalties listed in ISPM No. 36, RSPM No. 24, and the proposal, wherever they may happen to be found, into the final regulations.

We understand the commenter's concerns about the potential consequences of noncompliance. However, as different IPRMM will necessarily have different points of concern and potential noncompliance, we believe it will be simpler and more flexible to determine the actions we take in case of noncompliance within the individual IPRMM.

We proposed to set out requirements for postentry quarantine in § 319.37-23. Under current § 319.37-7, certain taxa of plants for planting are required to be grown in postentry quarantine in order to determine whether they are infested with quarantine pests, typically pathogens. Section 319.37-7 also provides a framework of requirements under which postentry quarantine must be conducted and completed. We proposed to move the lists of taxa that must be grown in postentry quarantine that are currently found in paragraphs (a) and (b) of § 319.37-7 to the Plants for Planting Manual and update them with the streamlined process.

One commenter expressed concerns about the use of postentry quarantine. The commenter stated that the system has proved inadequate to prevent pests from escaping, as in the escape of citrus longhorned beetle (Anoplophora chinensis) at a nursery in Tukwila, WA. The commenter hoped that APHIS will shift from using postentry quarantine as a mitigation to the use of IPRMM.

We do intend to emphasize the use of IPRMM to address pest risks rather than postentry quarantine in the future. The restructuring of the plants for planting regulations will make it easier to do so.

We proposed to set out requirements for State postentry quarantine agreements in paragraph (b) of proposed § 319.37-23. Such requirements were previously found in paragraph (c) of § 319.37-7. We stated that there is no need to retain the level of detail regarding such agreements that is found in current paragraph (c), which sets out extensive requirements that States must meet in order to be sites for postentry quarantine; for example, the paragraph includes detailed requirements for State laws and regulations, duties of State inspectors, services APHIS agrees to provide, and provisions for termination of a State postentry quarantine agreement.

One commenter expressed concern about removing this detail, believing that the agreements could be subject to political pressure and other nonscientific factors during negotiation that could result in heightened pest risk.

We do not anticipate that anything will change as a result of removing the details, and, as the commenter noted, removing those details will allow us to tailor the agreements to specific circumstances.

Proposed paragraph (c) of § 319.37-1 indicated that the importation of plants that are imported for processing, as determined by an inspector based on documentation accompanying the articles, is not subject to the plants for planting regulations. However, the importation of such plants may be subject to other regulations, and the proposed text could have given the impression that there were no further requirements for the importation of such plants. Therefore, in this final rule, we have changed the proposed paragraph to indicate that the importation of such plants is not subject to the plants for planting regulations but may be subject to regulations elsewhere in 7 CFR part 319, which contains the import quarantine notices.

Additionally, plants that are imported for consumption, as determined by an inspector based on documentation accompanying the articles, are similarly not subject to the plants for planting regulations. We have changed proposed paragraph (c) to reflect this as well.

In the same section, proposed paragraph (f) had indicated that common names of plants for planting may be given in parentheses after most scientific names, when common names are known. This was intended to refer to the Plants for Planting Manual, rather than the regulations themselves, since we were proposing to move taxa-specific restrictions and prohibitions to the manual. In this final rule, we clarify that paragraph (f) of § 319.37-1 pertains to the Plants for Planting Manual.

In the definitions section of this final rule, § 319.37-2, we are adding a definition of Animal and Plant Health Inspection Service (APHIS) for clarity. Adding this definition allows us to simplify the wording of the definition of Plant Protection and Quarantine Programs and reflects the use of the acronym “APHIS” throughout the subpart. Additionally, since the proposed rule was issued, we revised the definition of phytosanitary certificate within the plants for planting regulations. We are retaining this revised definition, with minor edits to reflect the structure of the revised subpart.

Finally, the revisions to the subpart make it necessary for us to update references and citations that appear elsewhere in our regulations in title 7. We are making these nonsubstantive updates in 7 CFR parts 318, 319, 330, 340, 360, and 361.

Therefore, for the reasons given in the proposed rule and in this document, we are adopting the proposed rule as a final rule, with the changes discussed in this document.

This final rule has been determined to be not significant for the purposes of Executive Order (E.O.) 12866 and, therefore, has not been reviewed by the Office of Management and Budget. This rule is not expected to be an E.O. 13771 regulatory action because it is not significant under E.O. 12866. Further, APHIS considers this rule to be a deregulatory action under E.O. 13771 as it will facilitate access to information on import restrictions for specific types of plants for planting and create a more efficient process for amending import requirements.

In accordance with 5 U.S.C. 604, we have performed a final regulatory flexibility analysis, which is summarized below, regarding the economic effects of this rule on small entities. Copies of the full analysis are available on the Regulations.gov website (see footnote 1 in this document for a link to Regulations.gov) or by contacting the person listed under FOR FURTHER INFORMATION CONTACT.

This analysis examines the potential economic impacts on small entities of a final rule to restructure the regulations contained in 7 CFR part 319 that govern the importation of plants for planting. This action will provide for more efficient application of these regulations, while not making any major changes to current import restrictions. Besides improving the clarity of these regulations, the rule will:

• Consolidate the requirements for importation of plants for planting into one subpart in 7 CFR part 319;

• Add most of the plants for planting that are listed as prohibited to the list of those whose importation is NAPPRA;

• Characterize the other prohibitions as restrictions, and add them to the Plants for Planting manual;

• Remove several lists of approved items (for example, approved growing media, packing materials, and ports of entry) from the regulations and instead provide these lists to the public in the Plants for Planting Manual;

• Move restrictions on the importation of specific types of plants for planting from the regulations to the Plants for Planting Manual;

• Establish a framework for the use of IPRMM where appropriate in the production of specific types of plants for planting for importation into the United States;

• Clarify postentry quarantine requirements; and

• Establish a process for making changes to import restrictions on specific types of plants for planting after taking public comment on notices published in the Federal Register, rather than by publishing proposed and final rules.

The changes will facilitate access to information on import restrictions for specific types of plants for planting, and create a more efficient process for amending import requirements. Importers of plants for planting can expect changes in import restrictions to be accomplished more than 4 months sooner than they would be through rulemaking. While nearly all importers of plants for planting that are directly affected by the rule are small, any associated costs will be modest, including instances in which phytosanitary certification are newly required.

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are inconsistent with this rule; (2) has no retroactive effect; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.

This final rule contains no new reporting, recordkeeping, or third party disclosure requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

Accordingly, we are amending 7 CFR parts 318, 319, 330, 340, 360, and 361 as follows:

Background

FSA makes and services a variety of direct and guaranteed loans to the nation's farmers and ranchers who are unable to obtain private commercial credit at reasonable rates and terms. FSA also provides direct loan customers with credit counseling and supervision to enhance their opportunity for success. FSA direct and guaranteed loan applicants are often beginning farmers and socially disadvantaged farmers who do not qualify for conventional loans because of insufficient net worth or established farmers who have suffered financial setbacks due to natural disasters or economic downturns. FSA tailors direct and guaranteed loans to a customer's needs and may be used to buy farmland and to finance agricultural production.

The Consolidated Farm and Rural Development Act of 1972, as amended, (CONACT) (7 U.S.C. 1921-2009dd-7)) authorizes FSA's Direct and Guaranteed Farm Loan Programs.

As part of loan servicing, various real estate documents must be signed by FSA and the files must be on public record in certain states. Some of the real estate documents that FSA signs include, but are not limited to, lien satisfactions, partial releases, and subordinations. FSA's intent has always been for the real estate documents to be signed by FSA officials at the local level. In the past, the regulations in 7 CFR part 1900 included specific wording concerning which employees were delegated with signature authority. In 2007, when FSA streamlined the FLP regulations, 7 CFR 761.1 broadened the regulatory text concerning FLP delegations, but the original intent as to who would have the authority to sign the real estate documents did not change. FSA recently determined that more specificity in 7 CFR 761.1 regarding the delegation of authority would be helpful and is therefore revising the regulation.

FSA is amending the regulation in 7 CFR part 761 regarding the delegation of authority for the Deputy of Administrator of FLP to specify that the Deputy Administrator of FLP redelegates certain loan making and servicing authority to SEDs and when there is no loss to FSA, the SEDs may redelegate the authority to the Farm Loan Chief, Farm Loan Specialist, District Director, Farm Loan Manager, Senior Farm Loan Officer, Farm Loan Officer, Loan Analyst, Loan Resolution Specialist, or Program Technician. The revised delegation will clarify the authority for the Acting SED and other authorized officials to sign certain loan documents and to perform other loan activities for SEDs.

In general, the Administrative Procedure Act (5 U.S.C. 553) requires that a notice of proposed rulemaking be published in the Federal Register and interested persons be given an opportunity to participate in the rulemaking through submission of written data, views, or arguments with or without opportunity for oral presentation, except that when the rule involves a matter relating to public property, loans, grants, benefits, or contracts section 553 does not apply. This rule involves matters relating to loans and is therefore being published as a final rule without the prior opportunity for comments.

The Administrative Procedure Act (5 U.S.C. 553) provides generally that before rules are issued by Government agencies, the rule is required to be published in the Federal Register, and the required publication of a substantive rule is to be not less than 30 days before its effective date. However, as noted above, one of the exceptions is that section 553 does not apply to rulemaking that involves a matter relating to loans. Therefore, because this rule relates to loans, the 30-day effective period requirement in section 553 does not apply. This final rule is effective when published in the Federal Register.

Executive Order 12866, “Regulatory Planning and Review,” and Executive Order 13563, “Improving Regulation and Regulatory Review,” direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasized the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. Executive Order 13777, “Enforcing the Regulatory Reform Agenda,” established a federal policy to alleviate unnecessary regulatory burdens on the American people.

In section 3(d), Executive Order 12866 defines “regulation” or “rule.” In the definition, it specifically does not include regulations or rules that are limited to agency organization, management, or personnel matters. This rule relates to internal agency management; therefore, it is exempt from the provisions of Executive Order 12866.

Executive Order 13771, “Reducing Regulation and Controlling Regulatory Costs,” requires that in order to manage the private costs required to comply with Federal regulations that for every new significant or economically significant regulation issued, the new costs must be offset by the elimination of at least two prior regulations. This rule does not rise to the level required to comply with Executive Order 13771.

The Regulatory Flexibility Act (5 U.S.C. 601-612), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA, Pub. L. 104-121), generally requires an agency to prepare a regulatory flexibility analysis of any rule whenever an agency is required by the Administrative Procedure Act or any other law to publish a proposed rule, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. This rule is not subject to the Regulatory Flexibility Act because FSA is not required by the Administrative Procedure Act or any other law to publish a proposed rule for this rulemaking.

The environmental impacts of this final rule have been considered in a manner consistent with the provisions of the National Environmental Policy Act (NEPA, 42 U.S.C. 4321-4347), the regulations of the Council on Environmental Quality (40 CFR parts 1500-1508), and the FSA regulations for compliance with NEPA (7 CFR part 799). FSA has determined that the provisions identified in this final rule are administrative in nature, solely relating to internal agency management, and do not constitute a major Federal action that would significantly affect the quality of the human environment, individually or cumulatively. Provisions for signature authorities are purely administrative and would not alter any environmental impacts associated with any loans. Therefore, as this rule presents administrative clarifications only, FSA will not prepare an environmental assessment or environmental impact statement for this regulatory action.

Executive Order 12372, “Intergovernmental Review of Federal Programs,” requires consultation with State and local officials that would be directly affected by proposed Federal financial assistance. The objectives of Executive Order 12372 are to foster an intergovernmental partnership and a strengthened Federalism, by relying on State and local processes for State and local government coordination and review of proposed Federal Financial assistance and direct Federal development. For reasons specified in the final rule related notice regarding 7 CFR part 3015, subpart V (48 FR 29115, June 24, 1983), the programs and activities within this rule are excluded from the scope of Executive Order 12372, which requires intergovernmental consultation with State and local officials.

This rule has been reviewed under Executive Order 12988, “Civil Justice Reform.” This rule will not preempt State or local laws, regulations, or policies unless they represent an irreconcilable conflict with this rule. The rule will not have a retroactive effect. Before any judicial action may be brought regarding the provisions of this rule, the administrative appeal provisions of 7 CFR parts 11 and 780 are to be exhausted.

This rule has been reviewed under Executive Order 13132, “Federalism.” The policies contained in this rule do not have any substantial direct effect on States, on the relationship between the Federal government and the States, or the distribution of power and responsibilities among the various levels of government, except as required by law. Nor will this rule impose substantial direct compliance costs on State and local governments. Therefore, consultation with the States is not required.

This rule has been reviewed in accordance with the requirements of Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments.” Executive Order 13175 requires Federal agencies to consult and coordinate with tribes on a government-to-government basis on policies that have tribal implications, including regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects 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.

FSA has assessed the impact of this rule on Indian tribes and determined that this rule does not, to our knowledge, have tribal implications that require tribal consultation under Executive Order 13175. If a Tribe requests consultation, FSA will work with the USDA Office of Tribal Relations to ensure meaningful consultation is provided.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA, Pub. L. 104-4) requires Federal agencies to assess the effects of their regulatory actions on State, local, or Tribal governments, or the private sector. Agencies generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with Federal mandates that may result in expenditures of $100 million or more in any 1 year for State, local, or Tribal governments, in the aggregate, or to the private sector. UMRA generally requires agencies to consider alternatives and adopt the more cost effective or least burdensome alternative that achieves the objectives of the rule. This rule contains no Federal mandates, as defined in Title II of UMRA, for State, local, and Tribal governments or private sector. Therefore, this rule is not subject to the requirements of sections 202 and 205 of UMRA.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520), the rule does not change the approved information collection approved under OMB control number 0560-0238, General Program Administration.

FSA is committed to complying with the E-Government Act, to promote the use of the internet and other information technologies to provide increased opportunities for citizen access to Government information and services and other purposes.

For reasons discussed above, FSA amends 7 CFR chapter VII as follows:

This rule makes changes to the existing list of institutions in appendix B of 7 CFR part 3434. The list of institutions is amended to reflect the institutions that are granted HSACU certification by the Secretary and are eligible for HSACU programs for the period starting October 1, 2017, and ending September 30, 2018.

As stated in 7 CFR 3434.4, an institution must meet the following criteria to receive HSACU certification: (1) Be a Hispanic-Serving Institution (HSI), (2) offer agriculture-related degrees, (3) not appear on the Excluded Parties List System (EPLS), (4) be accredited, and (5) award at least 15% of agriculture-related degrees to Hispanic students over the two most recent academic years.

NIFA obtained the latest report from the U.S. Department of Education's National Center for Education Statistics that lists all HSIs and the degrees conferred by these institutions (completion data) during the 2015-16 academic year. NIFA used this report to identify HSIs that conferred a degree in an instructional program that appears in appendix A of 7 CFR part 3434 and to confirm that over the 2014-15 and 2015-16 academic years at least 15% of the degrees in agriculture-related fields were awarded to Hispanic students. NIFA further confirmed that these institutions were nationally accredited and were not on the exclusions listing in the System for Award Management (https://www.sam.gov/portal/SAM/##11).

The updated list of HSACUs is based on (1) completions data from 2014-15 and 2015-16, and (2) enrollment data from Fall 2016. NIFA identified 147 institutions that met the eligibility criteria to receive HSACU certification for FY 2018 (October 1, 2017 to September 30, 2018).

As set forth in Section 7101 of the Agricultural Act of 2014 (Pub. L. 113-79), which amends 7 U.S.C. 3103, an institution that is eligible to be designated as an HSACU may notify the Secretary of its intent not to be considered an HSACU. Institutions that opt out of HSACU designation will have the option to apply for designation as a Non-Land Grant College of Agriculture (NLGCA) institution. To opt out of designation as an HSACU, an authorized official at the institution must submit a declaration of intent not to be considered an HSACU to NIFA by email at [email protected]. In accordance with Section 7101, a declaration by an institution not to be considered an HSACU shall remain in effect until September 30, 2018. To be eligible for NLGCA designation, institutions must be public colleges or universities offering baccalaureate or higher degrees in the study of food and agricultural sciences, as defined in 7 U.S.C. 3103. An online form to request NLGCA designation is available at http://nifa.usda.gov/webform/request-non-land-grant-college-agriculture-designation.

In FYs 2016 and 2017, one institution opted out of HSACU designation and received NLGCA designation, hence that institution is excluded from the FY 2018 HSACU list.

As set forth in 7 CFR 3434.8, NIFA will permit HSIs that are not granted HSACU certification to submit an appeal within 30 days of the publication of this document.

This rule relates to internal agency management. Accordingly, pursuant to 5 U.S.C. 553, notice of proposed rulemaking and opportunity for comment are not required, and this rule may be made effective less than 30 days after publication in the Federal Register. This rule also is exempt from the provisions of Executive Order 12866. This action is not a rule as defined by the Regulatory Flexibility Act, as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 601 et seq., or the Congressional Review Act, 5 U.S.C. 801 et seq., and thus is exempt from the provisions of those Acts. This rule contains no information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

Accordingly, part 3434 of title 7 of the Code of Federal Regulations is amended as set forth below:

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain The Boeing Company Model 737-300 and -500 series airplanes. The NPRM published in the Federal Register on October 6, 2017 (82 FR 46725). The NPRM was prompted by a report indicating that fatigue cracks were found in the lower wing skin of an airplane with winglets installed. The NPRM proposed to require repetitive inspections for cracking of the lower wing skin, and repair if necessary.

We are issuing this AD to detect and correct fatigue cracking of the lower wing skin common to the runout of stringer L-5. Such cracking could grow and result in loss of structural integrity of the wing, and consequent reduced, or complete loss of, controllability of the airplane.

We gave the public the opportunity to participate in developing this final rule. The following presents the comments received on the NPRM and the FAA's response to each comment. Aviation Partners Boeing concurred with the proposed AD.

One commenter, Mary Lou Allen, requested that the airplane manufacturer share in the expense with the airplane's purchaser or owner, because of the high costs associated with supplemental type certificates. We infer that the commenter wants manufacturers to be required to help pay for compliance with the proposed AD.

We do not agree to this request. We provide estimates of the cost on U.S. operators for AD compliance, but do not determine who is responsible for payment. We are aware that airplane manufacturers and modifiers often have warranty agreements with owners and operators to cover some or all of the costs of modifications or repairs, but we do not participate in these agreements. We have not changed this AD in this regard.

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

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

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

We reviewed Aviation Partners Boeing Service Bulletin AP737C-57-002, dated April 5, 2017. The service information describes procedures for repetitive inspections for cracking of the lower wing skin, and repair if necessary. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

We estimate that this AD affects 93 airplanes of U.S. registry. We estimate the following costs to comply with this AD:

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

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

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

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

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

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

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

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

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

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

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

The Civil Aviation Authority, which is the aviation authority for New Zealand, has issued CAA AD DCA/750XL/22, dated December 19, 2017 (referred to after this as “the MCAI”), to correct an unsafe condition for Pacific Aerospace Limited Model 750XL airplanes. To accompany that MCAI, the CAA issued Notification of Airworthiness Directive issued for New Zealand Aeronautical Products IAW ICAO Annex 8, dated December 21, 2017; the Notification states:

You may examine the MCAI on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0210.

Pacific Aerospace Limited has issued Pacific Aerospace Mandatory Service Bulletin PACSB/XL/093, Issue 1, dated December 15, 2017. The service information describes procedures for inspecting the ventilation, heater, and air filter bypass control tee handles for snagging of the control column, and adjustment of the control tee handle if necessary. 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 of the AD.

This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with this State of Design Authority, they have notified us of the unsafe condition described in the MCAI and service information referenced above. We are issuing this AD because we evaluated all information provided by the State of Design Authority and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design.

An unsafe condition exists that requires the immediate adoption of this AD. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because interference with the control column operations can result in the flight controls becoming jammed, which could result in uncontrollable flight. Therefore, we find good cause that notice and opportunity for prior public comment are impracticable. In addition, for the reason(s) stated above, we find that good cause exists for making this amendment effective in less than 30 days.

This AD is a final rule that involves requirements affecting flight safety, and we did not precede it by notice and opportunity for public comment. We invite you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2018-0210; Directorate Identifier 2018-CE-004-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments.

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

We estimate that this AD will affect 22 products of U.S. registry. We also estimate that it would take about 2 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour.

Based on these figures, we estimate the cost of the AD on U.S. operators to be $3,740, or $170 per product.

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.

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

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

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

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

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

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

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

Notice of proposed rulemaking was published in the Federal Register on October 12, 2017 (82 FR 47407); New York Register on October 25, 2017; Pennsylvania Bulletin on October 21, 2017; and Maryland Register on October 27, 2017. The Commission convened a public hearing on November 2, 2017, in Harrisburg, Pennsylvania. A written comment period was held open through November 13, 2017.

The Commission received one comment on the proposed rule, which was supportive of the Commission's efforts to formalize its Access to Records Policy. The Commission also received two comments after the close of the official public comment period suggesting some changes to rulemaking.

Based upon input from the Commission's member jurisdictions, subsection (b)(4) is amended and a new subsection (f) is added to create an exception to records subject to public access for those internal, pre-decisional deliberations between staff and member jurisdictions working in cooperation with the Commission. The Commission will also modify § 801.14(b)(1) to clarify that it does not prohibit the Commission from providing salary information in response to records requests, as the Commission has historically released these records upon request. Section 801.14(b)(8) is also modified to exclude the provision of financial documents related to critical infrastructure.

Based on public input the Commission clarifies the following:

• The Commission does intend to review and revisit its Access to Records Policy after adoption of the final rule to update its procedures.

• The final rule, § 801.14(c)(3), provides that the Commission must respond in a reasonable time frame. The Commission works with requesters and generally responds to records requests within 30 days of the request. The reasonable timeframe language allows the Commission to deal with requests varying in complexity and magnitude while continuing to balance prompt access to records with the agency's other obligations and limitations.

Through this final rule, the Commission continues its long tradition of transparency by formalizing the key elements of its Access to Records Policy in duly promulgated regulations. The Commission's 2009 Access to Records Policy, which remains in effect, can be found at: http://www.srbc.net/pubinfo/docs/2009-02_Access_to_Records_Policy_20140115.pdf. The Commission's current records processing fee schedule can be found at: http://www.srbc.net/pubinfo/docs/RecordsProcessingFeeScheduleUpdatedAddress.pdf.

Accordingly, for the reasons set forth in the preamble, the Susquehanna River Basin Commission amends 18 CFR part 801 as follows:

I. Background

In order to improve the effectiveness of CMPs and to maintain their deterrent effect, the Federal Civil Penalties Inflation Adjustment Act of 1990, 28 U.S.C. 2461 note (“the Inflation Adjustment Act”), as amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Pub. L. 114-74) (“the 2015 Act”), requires Federal agencies to adjust each CMP provided by law within the jurisdiction of the agency. The 2015 Act requires agencies to adjust the level of CMPs with an initial “catch-up” adjustment through an interim final rulemaking and to make subsequent annual adjustments for inflation, without needing to provide notice and the opportunity for public comment required by 5 U.S.C. 553. The Department's initial catch-up adjustment interim final rules were published on June 30, 2016 (FinCEN) (81 FR 42503), July 1, 2016 (OFAC) (81 FR 43070), and December 7, 2016 (Departmental Offices) (81 FR 88600). The Department's 2017 annual adjustment was published on February 10, 2017 (82 FR 10434). The 2015 Act provides that any increase in a CMP shall apply to CMPs that are assessed after the date the increase takes effect, regardless of whether the underlying violation predated such increase.1

The method of calculating CMP adjustments applied in this final rule is required by the 2015 Act. Under the 2015 Act and the Office of Management and Budget guidance required by the 2015 Act, annual inflation adjustments subsequent to the initial catch-up adjustment are to be based on the percent change between the Consumer Price Index for all Urban Consumers (“CPI-U”) for the October preceding the date of the adjustment and the prior year's October CPI-U. As set forth in Office of Management and Budget Memorandum M-18-03 of December 15, 2017, the adjustment multiplier for 2018 is 1.02041. In order to complete the 2018 annual adjustment, each current CMP is multiplied by the 2018 adjustment multiplier. Under the 2015 Act, any increase in CMP must be rounded to the nearest multiple of $1.

The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Section 701(b)) requires agencies, beginning in 2017, to make annual adjustments for inflation to CMPs, without needing to provide notice and the opportunity for public comment required by 5 U.S.C. 553. Additionally, the methodology used, effective 2017, for adjusting CMPs for inflation is provided by statute, with no discretion provided to agencies regarding the substance of the adjustments for inflation to CMPs. The Department is charged only with performing ministerial computations to determine the dollar amount of adjustments for inflation to CMPs. Accordingly, prior public notice and an opportunity for public comment and a delayed effective date are not required for this rule.

Because no notice of proposed rulemaking is required, the provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) do not apply.

This rule is not a significant regulatory action as defined in section 3.f of Executive Order 12866.

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 rule because there are no new or revised recordkeeping or reporting requirements.

For the reasons set forth in the preamble, part 50, chapter V, and part 1010 of title 31 of the Code of Federal Regulations are amended as follows:

I. Table of Abbreviations CFR Code of Federal Regulations COTP Captain of the Port Sector Ohio Valley DHS Department of Homeland Security FR Federal Register MM Mile marker 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 restricted area by March 16, 2018 and lack sufficient time to provide a reasonable comment period and then consider those comments before issuing this rule. The NPRM process would delay the establishment of the special local regulation until after the scheduled date of the marine event and jeopardize public safety.

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 this rule would be impracticable and contrary to the public interest because immediate action is necessary to protect persons and property from the dangers associated with the marine event.

The Coast Guard is issuing this rule under authority in 33 U.S.C. 1233. The Captain of the Port Sector Ohio Valley (COTP) has determined that potential hazards associated with the Oak Ridge Rowing Association Cardinal Invitational Regatta marine event, occurring from 6 a.m. through 5 p.m. each day from March 16, 2018 through March 18, 2018, will be a safety concern for all navigable waters on the Clinch River, extending the entire width of the river, from mile marker (MM) 49.5 to MM 52.0. The purpose of this rule is to ensure the safety of life and vessels on these navigable waters before, during, and after the scheduled event.

This rule establishes a special local regulation from 6 a.m. through 5 p.m. each day from March 16, 2018 through March 18, 2018 for all navigable waters of the Clinch River, extending the entire width of the river, from MM 49.5 to MM 52.0. Enforcement of the regulated area will occur from 6 a.m. to 5 p.m. daily. The duration of the special local regulation is intended to ensure the safety of life and vessels on these navigable waters before, during, and after the scheduled event. No vessel or person will be permitted to enter the special local regulated area without obtaining permission from the COTP or a designated representative. A designated representative is a commissioned, warrant, or petty officer of the U.S. Coast Guard assigned to units under the operational control of USCG Sector Ohio Valley. They may be contacted on VHF-FM Channel 16 or by telephone at 1-800-253-7465. Persons and vessels permitted to enter this regulated area must transit at their slowest safe speed and comply with all lawful directions issued by the COTP or the designated representative.

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

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

This regulatory action determination is based on the size, location, duration, and time-of-day of the special local regulation. The Coast Guard will issue written Local Notice to Mariners and Broadcast Notice to Mariners via VHF-FM marine channel 16 about the temporary special local regulation.

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01, 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 the establishment of a special local regulation lasting eleven hours on three days extending a distance of less than three miles that will prohibit entry on all navigable waters of the Clinch River from MM 49.5 to MM 52.0. It is categorically excluded from further review under paragraph L63(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES.

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

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 100 as follows:

The Coast Guard will enforce the safety zones for the annual Pittsburgh Pirates Fireworks listed in 33 CFR 165.801, Table 1, line 1 from 8 p.m. through 11:59 p.m. each day on April 7, April 28, May 18, June 22, July 28, August 18, and September 21, 2018. Should inclement weather require rescheduling, the safety zone will be effective following games on a rain date to occur within 48 hours of the scheduled date. Entry into the safety zone is prohibited to all vessels not registered with the sponsor as participants or official patrol vessels, unless authorized by the Captain of the Port Marine Safety Unit Pittsburgh (COTP) or a designated representative. Persons or vessels desiring to enter into or pass through the safety zone must request permission from the COTP or a designated representative. If permission is granted, all persons and vessels shall comply with the instructions of the COTP or designated representative.

This notice of enforcement is issued under authority of 33 CFR 165.801 and 5 U.S.C. 552(a). In addition to this notice of enforcement in the Federal Register, the Coast Guard will provide the maritime community with advance notification of these enforcement periods via Local Notice to Mariners and updates via Marine Information Broadcasts.

Throughout this document whenever “we,” “us,” or “our” is used, we mean the EPA.

On December 18, 2017, the EPA published a Notice of Proposed Rulemaking (NPRM) for the State of Vermont. See 82 FR 59997. The NPRM proposed approval of several different revisions to the SIP submitted by the VT DEC. The formal SIP revision was submitted by Vermont on May 23, 2017.

As discussed in the NPRM, the VT DEC revised the Vermont Air Pollution Control Regulations (APCR) on December 15, 2016 to address the two provisions identified in the EPA's June 27, 2017 conditional approval, which are required under the Federal PSD permit program regulations and were not included in the State's ISIPs submittal. See 82 FR 29005, June 27, 2017. Specifically, the definition of “significant” in APCR § 5-101(80) was revised to define the significant emissions rate increase for ozone as 40 tons or greater of either VOCs or NOX as ozone precursors. In addition, the VT DEC revised APCR sections 5-502(4)(c) and 5-502(5)(a) and (b) to require that PSD increment reviews and the determination of remaining PSD increment be conducted or determined in accordance with the applicable regulations at 40 CFR 51.166.

The EPA's NPRM also proposed approval into the Vermont SIP of the requirements in Vermont's NNSR and PSD permit program at APCR sections 5-501(9) and 5-502(9). The provision at section 5-501(9) clarifies that no action under section 5-501 relieves any person from complying with any other requirements of local, State, or Federal law. APCR section 5-502(9) requires an alternative site analysis to be conducted when: (1) A source or modification that is major is proposed to be constructed in a non-attainment area; or (2) a source or modification is major for ozone and/or precursors to ozone.

Additionally, the NPRM proposed to incorporate into the SIP revisions to the regulations relating to particulate matter at APCR sections 5-231(4) and (5). APCR section 5-231(4) was revised to prohibit a process operation to operate without taking reasonable precautions to prevent particulate matter from becoming airborne. APCR section 5-231(5) was revised to update and replace the term “Asphalt Concrete Plant” with the more commonly used term “Hot Mix Asphalt Plant.”

The EPA also proposed to approve minor revisions to the work practice standards for wood furniture manufacturers and the regulations for sampling and testing of sources. The wood furniture manufacturing regulation at APCR section 5-253.16(d)(8) was amended to limit the use of conventional air spray guns to apply finishing materials only when all emissions from the finishing application station are routed to a functioning control device. The NPRM also proposed to approve changes to the stack testing requirements at APCR section 5-404. This revision adds 40 CFR part 51, Appendix M, as a testing option and requires that all other methods be approved by the Air Pollution Control Officer and the EPA, as opposed to just the Air Pollution Control Officer. The rationale for the EPA's proposed action is explained in the NPRM and will not be restated here. No public comments were received on the NPRM.

The EPA is approving the changes in the May 23, 2017 submittal as a revision to the Vermont SIP. The EPA has determined the revisions in the May 23, 2017 are consistent with the CAA and appropriate for inclusion into the Vermont SIP. We are also converting the June 27, 2017 conditional approval of Vermont's ISIPs for Federal PSD requirements to a full approval.

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 Vermont statutes described in the amendments to 40 CFR part 52 set forth below. The EPA has made, and will continue to make, these documents generally available through https://www.regulations.gov.

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 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);

• 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, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or 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 action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 18, 2018. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

Part 52 of chapter I, title 40 of the Code of Federal Regulations is amended as follows:

The West Virginia SIP at 40 Code of Federal Regulations (CFR) part 52, subpart XX, section 52.2520(d) contains source-specific requirements, which were incorporated into the West Virginia SIP over the course of many years to allow the State to demonstrate attainment with various NAAQS. Subsequently, several of these sources have permanently ceased operation rendering source-specific requirements for these facilities obsolete.

SIP revisions pertaining to the removal of obsolete SIP requirements for sources that have permanently shutdown are considered administrative, non-substantive changes. If a source has permanently shutdown, the emissions are permanently reduced to zero, so removing source-specific SIP requirements for that source will not interfere with attainment and maintenance of any NAAQS, reasonable further progress or any other applicable CAA requirement. See CAA section 110(l).

On August 25, 2017, West Virginia submitted a SIP revision requesting that the consent orders for the sources listed in Table 1 be removed from the West Virginia SIP located at 40 CFR part 52, subpart XX, section 52.2520(d). On December 5, 2017, EPA published a notice of proposed rulemaking (NPR) proposing to approve West Virginia's August 25, 2017 (82 FR 57418) SIP revision.

EPA received six public comments on the NPR to approve West Virginia's SIP revision.

Comment 1: The commenter expressed concern over whether the facilities' emissions would be regulated through monitoring and guidelines if they were to re-open.

Response 1: CAA section 110(a)(2)(c) and Title I, Parts C and D, as well as CAA sections 172, 173, and 161 require states to implement permit programs consistent with the requirements of the CAA which regulate construction and modification of stationary sources to assure the NAAQS are achieved. These include nonattainment new source review (NSR) and prevention of significant deterioration (PSD) permit programs. West Virginia has federally enforceable NSR and PSD permit programs incorporated in the West Virginia SIP. See 45CSR19 (NSR program approved 80 FR 29973(May 26, 2015)), 45CSR14 (PSD program approved 81 FR 53009 (August 11, 2016)), and 45CSR13 (minor source NSR program approved 79 FR 42213 (July 21, 2014)). All of the facilities listed in the NPR were permanently shut down, but if any were to re-open, or if any new sources were to start operating in West Virginia in the same location, they would need to comply with the requirements of West Virginia's permit programs, as applicable including NSR, PSD or minor NSR. Specifically, West Virginia's rule 45CSR14, “Permits for the Construction and Major Modification of Major Stationary Sources of Air Pollution for the Prevention of Significant Deterioration,” was approved into the West Virginia SIP in 1984 and subsequently revised several times with the latest revision to the SIP in 2015 (81 FR 53009). West Virginia's rule 45CSR13, “Permits for Construction, Modification, or Relocation of Stationary Sources of Air Pollutants, and Procedures for Registration and Evaluation,” requiring construction or modification permits for all regulated stationary emission sources was approved into the West Virginia SIP in 1972 and last updated in 2014 (79 FR 42213). West Virginia's rule 45CSR19, “Requirements for Pre-Construction Review, Determination of Emission Offsets for Proposed New or Modified Stationary Sources of Air Pollutants and Bubble Concept for Intra-Source Pollutants,” for permitting of major sources and modifications in designated nonattainment areas was approved into the West Virginia SIP in 1985 (50 FR 27247) with recent revisions to the rule included in the SIP in 2015 (80 FR 29973). These federally enforceable rules approved into the West Virginia SIP ensure that pollutant-emitting sources are regulated with appropriate and required emission limitations and monitoring requirements as necessary, and that their operation will not prevent West Virginia from attaining or maintaining the NAAQS.

Comment 2: The commenter expressed concern that wildfires are negatively impacting both public health and the environment, and that more should be done to prevent wildfires.

Response 2: This comment is irrelevant to this rulemaking. This rulemaking is concerned with removing source-specific requirements from the SIP for permanently shut down facilities in West Virginia. As the comment is neither supportive of, critical of, nor specific to this action, no further response is provided.

Comment 3: The commenter questioned why the United States is importing gas from Nigeria at Cove Point hurting the American middle class and the working poor.

Response 3: This comment is irrelevant to this rulemaking. This rulemaking is concerned with removing source-specific requirements from the SIP for permanently shut down facilities in West Virginia. As the comment is neither supportive of, critical of, nor specific to this action, no further response is provided.

Comment 4: The commenter expressed concern over unnecessary and burdensome regulations, and the regulatory process.

Response 4: As the comment is neither supportive of, critical of, nor specific to this action, no response is provided. This rulemaking is concerned with removing source-specific requirements from the SIP for permanently shut down facilities in West Virginia.

Comment 5: The commenter expresses concern over potentially harmful health effects from low frequency electro-magnetic fields and discusses how their use in automobiles amongst other things could be harmful to human health.

Response 5: This comment is irrelevant to this rulemaking. This rulemaking is concerned with removing source-specific requirements from the SIP for permanently shut down facilities in West Virginia. As the comment is neither supportive of, critical of, nor specific to this action, no further response is provided.

Comment 6: The commenter asserts that EPA relied on assumptions and false evidence to lead attacks on hydraulic fracturing, and utilized the film industry to create anti-fracking films, all to justify regulating the industry.

Response 6: This comment is irrelevant to this rulemaking. This rulemaking is concerned with removing source-specific requirements from the SIP for permanently shut down facilities in West Virginia. As the comment is neither supportive of, critical of, nor specific to this action, no further response is provided.

EPA has reviewed West Virginia's SIP revision seeking removal of obsolete source-specific SIP requirements from the West Virginia SIP. These five sources have permanently ceased operation, rendering source-specific SIP requirements for these sources obsolete. EPA has confirmed that all permits have been surrendered and are inactive. Therefore, EPA is approving the West Virginia August 25, 2017 SIP revision, which sought removal of source-specific revisions related to five now closed facilities, in accordance with section 110 of the CAA. As the five sources permanently shutdown, their emissions are permanently eliminated, so removing the source-specific SIP requirements for these sources will not interfere with attainment and maintenance of any NAAQS, reasonable further progress or any other applicable CAA requirement in accordance with CAA section 110(l).

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

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

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

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

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

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

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

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

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

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

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

The 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. Section 804, however, exempts from section 801 the following types of rules: Rules of particular applicability; rules relating to agency management or personnel; and rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties. 5 U.S.C. 804(3). Because this is a rule of particular applicability, EPA is not required to submit a rule report regarding this action under section 801.

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 May 18, 2018. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action pertaining to removal of source-specific requirements from the West Virginia SIP may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended as follows:

Table of Contents for Preamble I. Abbreviations II. Background, Basis, and Purpose III. Regulatory History IV. Discussion of Final Rule V. Discussion of Comments and Changes A. Dollar Threshold Amounts for Reporting Marine Casualties B. Dollar Threshold Amounts for Reporting SMIs C. Periodic Adjustments of the Threshold Amounts for Reporting Marine Casualties and SMIs D. Loss of Marine Casualty Data E. Amending the Dollar Amount Thresholds for Outer Continental Shelf Casualty Reporting in Title 33 of the CFR F. Use of the CPI-U to Determine Reporting Threshold Amounts G. Nonsubstantive Changes to Reflect Updated CG-2692, Report of Marine Casualty, Commercial Diving Casualty, or OCS-related Casualty VI. Regulatory Analyses A. Regulatory Planning and Review B. Small Entities C. Assistance for Small Entities D. Collection of Information E. Federalism F. Unfunded Mandates Reform Act G. Taking of Private Property H. Civil Justice Reform I. Protection of Children J. Indian Tribal Governments K. Energy Effects L. Technical Standards M. Environment I. Abbreviations BLS Bureau of Labor Statistics CFR Code of Federal Regulations COI Collection of Information CPI-U Consumer Price Index for All Urban Consumers DHS Department of Homeland Security MISLE Marine Information for Safety and Law Enforcement NPRM Notice of Proposed Rulemaking OCMI Officer in Charge, Marine Inspection OCS Outer Continental Shelf OMB Office of Management and Budget PVA Passenger Vessel Association RA Regulatory analysis SMI Serious marine incident SNPRM Supplemental notice of proposed rulemaking. U.S.C. United States Code § Section symbol II. Background, Basis, and Purpose

Pursuant to 46 U.S.C. 6101, the Coast Guard is required to prescribe regulations on marine casualty reporting and the manner of reporting. Based on this authority, we developed regulations in part 4 of title 46 of the Code of Federal Regulations (CFR) that included, among other criteria, monetary property damage threshold amounts for reporting a “serious marine incident” 1 (SMI) and for reporting a marine casualty.2 The original regulations setting these property damage threshold amounts were developed in the 1980s, and they have not been updated since that time. With this final rule, we update the dollar threshold amounts for property damage in 46 CFR 4.03-2(a)(3) and 4.05-1(a)(7) to account for inflation.

As described in greater detail in the notice of proposed rulemaking (NPRM), there is Coast Guard and stakeholder consensus that the 1980s property damage monetary threshold amounts listed in 46 CFR 4.03-2 and 4.05-1 have not kept pace with inflation.3 Over time, this has resulted in the reporting of a greater number of casualties involving relatively minor property damage. It was never our intent to require owners or operators to notify us of casualties involving relatively minor property damage. Consequently, we are amending the property damage monetary threshold amounts to eliminate the reporting of insignificant property damage incidents.

Additionally, because the regulations require mandatory drug and alcohol testing following an SMI, current regulations require chemical testing of crewmembers for casualties that reach a minimum threshold of $100,000 in property damage. Because of cost increases caused by inflation, however, casualties that result in property damage between $100,000 and $200,000 are no longer representative of a “serious” incident. The lack of inflation updates to our marine casualty regulations has resulted in an additional administrative and financial burden on vessel owners and operators, as well as on Coast Guard resources used to investigate these incidents.

On January 23, 2017, the Coast Guard published an NPRM with request for comments. No public meeting was requested, and none was held.

This final rule changes the reportable marine casualty property damage threshold amount in 46 CFR 4.05-1(a)(7) from $25,000 to $75,000. In the NPRM, we proposed to make this threshold $72,000, but chose $75,000 for reasons explained in the next section of this preamble. This final rule also changes the SMI property damage threshold in 46 CFR 4.03-2(a)(3) from $100,000 to $200,000. This change is the same as that proposed in the NPRM.

With the dollar amount thresholds updated to account for inflation, we expect there will be a decrease in the number of commercial vessel casualties reported to the Coast Guard. The updates in this final rule will also likely decrease the number of casualties that fall within the definition of an SMI, and thereby reduce the number of chemical tests administered following an SMI that results in $100,000.01 to $200,000 worth of property damage. However, mandatory chemical testing will still be required if the property damage meets the updated dollar threshold amount (in excess of $200,000) established in this final rule. Our intent in setting a dollar amount threshold in our marine casualty reporting regulation and within the definition of “serious marine incident” was, and remains, to ensure that the Coast Guard is aware of those incidents that could be indicative of more serious problems that may be averted in the future with timely intervention.

We expect that this final rule will result in an estimated annual cost savings to industry of $40,809 due to a reduction in the hourly burden of reporting and recordkeeping for both marine casualties and SMIs, and an estimated annual cost savings of $4,751 for chemical testing for marine casualties designated as SMIs. This final rule will also result in cost savings to the Coast Guard by reducing the hourly burden costs to investigate marine casualties, as well as the costs associated with processing marine casualty forms. As a result, the maritime industry and Coast Guard resources will be able to focus their efforts on higher consequence incidents.

Finally, this final rule makes several nonsubstantive changes throughout 46 CFR part 4 to account for Office of Management and Budget (OMB)-approved updates to forms that the maritime industry uses to report on marine casualties and SMIs. The Coast Guard provides further detail of these non-substantive changes below in Part V.G, Discussion of Comments and Changes.

We received 45 public comments. The comments were from individuals representing 25 private companies and 6 trade associations, and 1 anonymous source. Two of these private companies had two individuals submit comments on their behalf, and 11 individuals representing one of the other private companies submitted separate letters. Additionally, one of the trade associations submitted two identical letters from the same individual. We reviewed and took into consideration all 45 comments. The majority of commenters agreed with the NPRM that the current dollar thresholds for reporting marine casualties and SMIs are outdated and should be increased. Some commenters agreed with each of the increased dollar threshold amounts proposed in the NPRM. Other commenters recommended increasing the proposed dollar threshold amount for reporting a marine casualty; of this group, most also recommended increasing the proposed dollar threshold amount for reporting an SMI. Still others recommended including a means to periodically adjust or revise the dollar threshold amounts to make sure they continue to stay current. One commenter recommended that the Coast Guard include within the docket “examples of the casualties which will no longer be reported” as a result of the increase in the dollar threshold amount for property damage. Another commenter suggested that the proposal to increase the dollar threshold amounts for reporting casualties and SMIs be extended to the Outer Continental Shelf (OCS) regulations in 33 CFR part 146, so that the reporting threshold amounts in both CFR titles will be “standardized.” Finally, one commenter suggested that our method of calculating the inflationary adjustment using the Consumer Price Index for All Urban Consumers (CPI-U) yielded outdated figures, and that there may be other reference indices that would produce more accurate results.

We have grouped these comments into the following categories:

• Dollar Threshold Amounts for Reporting Marine Casualties;

• Dollar Threshold Amounts for Reporting SMIs;

• Periodic Adjustments of the Threshold Amounts for Reporting Marine Casualties and SMIs;

• Loss of Marine Casualty Data;

• Amending the Dollar Amount Thresholds for Outer Continental Shelf Casualty Reporting in Title 33 of the CFR; and

• Use of the CPI-U to Determine Reporting Threshold Amounts.

A detailed discussion of these comments and our responses follows.

Four commenters agreed with the increased dollar threshold amounts exactly as proposed in the NPRM. Of the four commenters, three had additional comments unrelated to the specific dollar threshold amounts. Those comments are addressed in the following discussions and responses.

One commenter recommended increasing the proposed dollar threshold amount of $72,000 for a marine casualty to a “more memorable figure of $75,000 or $100,000.”

Coast Guard Response: We agree with the commenters that $75,000 and $100,000 represent figures that are easier to remember than $72,000. However, we do not agree with changing the property damage threshold to $100,000. As we explained in the NPRM, the Coast Guard, in arriving at the proposed threshold amount of $72,000, calculated the inflation adjustment factor using the CPI-U. Changing the threshold amount to $100,000 would not be consistent with our intent to update the reporting threshold based on the rate of inflation experienced since implementation of the original rule. Changing the dollar threshold to $75,000, however, is consistent with that intent and, as the commenter noted, is an easier dollar figure to remember. Additionally, based on our casualty data, we believe that the difference in reporting data between $72,000 and $75,000 will be negligible and, for the reasons explained in the Regulatory Analysis (RA) section of this final rule (Section VI), the affected population of this rule remains unchanged from the NPRM. In this final rule, therefore, we have changed the marine casualty reporting threshold for property damage to $75,000.

Thirty-six commenters recommended increasing the proposed dollar threshold amount for reporting an SMI to $400,000, citing suggestions from the Passenger Vessel Association (PVA). In support of its recommendation for the Coast Guard to change the dollar amount of an SMI from the proposed $200,000 to $400,000, the PVA explains that the 1:4 ratio between the existing dollar amount threshold for marine casualty reporting ($25,000) and the existing dollar amount threshold for a “serious marine incident” ($100,000) should be maintained under the final rule.

Coast Guard Response: We do not agree with the 1:4 ratio suggested by the PVA and their members. While the original thresholds did have a 1:4 ratio, this relationship was not by design, nor was it our intention to tie the threshold numbers together in this manner or to suggest that a 1:4 ratio is optimal and should be maintained. Changing the property damage threshold amount to $400,000 for an SMI, as recommended by the commenters and the PVA, would not be consistent with our intent to update the threshold amount based on the rate of inflation experienced since implementation of the original rule.

Thirty-seven commenters recommended including in the final rule a provision for periodically adjusting both threshold amounts to account for inflation, so that the Coast Guard will not be required to initiate future rulemakings to update the threshold amounts. Of these, one commenter pointed out that the Coast Guard was “using the same CPI-U numbers to calculate and revise the damage thresholds that they currently employ for their civil penalty adjustments.” Therefore, the commenter suggested, we should include in the final rule a provision to “revise [the dollar threshold amounts for both a marine casualty and an SMI] using the same rate increase schedule as those for civil penalty updates.”

Coast Guard Response: We do not plan to establish automatic, periodic inflation adjustments to these property damage threshold amounts because the cost increase due to annual inflation may be too insignificant to warrant an adjustment every year. Frequent adjustments could also lead to confusion in what is to be reported. Additionally, the maritime industry may also be burdened with updating training and operational materials. We recognize, however, that these dollar amount thresholds should be reviewed more frequently than in the past to account for annual inflation. To that end, we will incorporate a 5-year evaluation period in our internal Mission Management System audits to ensure that the Coast Guard reviews the appropriateness of these dollar threshold amounts on a regular, recurring basis.

One anonymous commenter did not express support for or opposition to the NPRM, but was concerned that an increase in the dollar threshold amounts would mean a loss of data for those casualties whose property damage amounts fall below the proposed thresholds. For those casualties, the commenter believed the Coast Guard would not have the necessary information to identify problems that may need attention. The commenter recommended that the Coast Guard “provide supplemental information to the docket which provides examples of the casualties which will no longer be reported,” and stated that this information should be available to the public “because it was the data the Coast Guard used to determine that the current thresholds are not adequate and would clearly convey what type of data would no longer need to be reported.”

Coast Guard Response: We understand and appreciate the commenter's concerns. However, we are changing the reporting thresholds only as they relate to property damage. We feel that the various types of reportable casualties detailed in 46 CFR 4.05-1 ensure we are made aware of those incidents that could indicate more serious problems and that may be averted in the future with timely intervention. These include groundings, bridge allisions, loss of propulsion or steering, certain equipment failures, incidents resulting in significant harm to the environment, fire or flooding that adversely affects the vessel's seaworthiness or fitness for service, injuries beyond first aid, and loss of life—regardless of property damage cost. Nevertheless, we understand that, under this final rule, there will be casualties that involve property damage alone that will no longer be reported to the Coast Guard. An example of such a casualty would be if a vessel allides with a pier, and the resulting initial estimated property damage to the vessel and pier structure is any amount between $25,000.01 and $75,000. Assuming no pollution, deaths, injuries, or other reportable criteria is met, this casualty would no longer be a reportable marine casualty under this final rule. In reviewing historical data from the Coast Guard's Marine Information for Safety and Law Enforcement (MISLE) database, we are confident that the casualties reported that involve only property damage under $75,000 are relatively minor in nature when compared to all other reportable marine casualties. A specific example that epitomizes this occurred aboard a moored foreign containership. In this reportable marine casualty, a container being loaded by a longshoreman using a shore-side crane struck the forward mast of the vessel, resulting in over $66,000 in damage. Under this final rule, a relatively minor incident like this will no longer be reported to the Coast Guard.

One commenter, speaking on behalf of the International Association of Drilling Contractors, recommended that the increased dollar threshold amount for reporting a marine casualty, as proposed in the NPRM, also be applied to OCS facilities under 33 CFR part 146. If the Coast Guard makes the proposed changes only in 46 CFR part 4, and not also in 33 CFR part 146, the commenter stated that the Coast Guard would “appear to be penalizing” OCS facilities, which would continue to be required to report under the original dollar threshold amount of $25,000. The commenter referred to a “second related rulemaking (USCG-2013-1057) in progress that proposes to broaden the regulatory requirements for reporting marine casualties on the U.S. OCS,” and suggested that the Coast Guard review the marine casualty dollar threshold amounts in both 33 and 46 CFR “with a view towards standardization.”

Coast Guard Response: The commenter is correct that, because this final rule is limited to vessels (see 46 CFR 4.03-1 and 4.05-1), it does not affect the reporting threshold for OCS facilities. Changing the $25,000 casualty damage threshold amount applicable to OCS facilities is not within the scope of the rule we proposed, and we think it is important to finalize the changes for vessels rather than delay them in order to propose changes for OCS facilities. However, we acknowledge the validity of the commenter's concern, and we will consider amending the threshold reporting amount applicable to OCS facilities in a future rulemaking.

One commenter who was generally supportive of the NPRM stated that the method we used to calculate inflationary adjustment by comparing the average CPI-U for the base years with the average CPI-U for 2015 yielded outdated information. The commenter pointed out that the U.S. Bureau of Labor Statistics (BLS) inflation calculator, available online at the BLS website, allows users to compare base year values to values for 2017. Therefore, the commenter contends, the threshold amount for reporting a marine casualty as proposed in the NPRM is “already outdated by two years.” The commenter recommended raising the threshold amounts for a marine casualty and an SMI to $100,000 and $400,000, respectively.

Coast Guard Response: As stated previously, we agree that since the NPRM was published, more recentCPI-U data is available. However, we disagree with using the CPI-U BLS calculator to update to 2017. When using the BLS calculator to update to 2017, the calculator updates to the last available month of 2017 data. The CPI-U could have an unusual increase or decrease in 1 month that is not representative of the overall trend in the CPI-U over the full year. We take an average of the 12 months of CPI-U data for the latest full year of data to better represent the overall trend in CPI-U. We disagree with using 2017 data because it would provide an incomplete year of data. The last full year of CPI-U data available at the time of analysis was 2016. We have updated this final rule in a way that encompasses the 2016 CPI-U data.

Thirty-six commenters, citing suggestions from the PVA, recommended increasing the threshold for reporting marine casualties to $100,000, stating that the proposed figure of $72,000 “is already outdated because the (Coast Guard's) calculation used 2015 as the year inputted into the CPI-U BLS calculator.” The PVA and many of these commenters also expressed the belief that the CPI-U may not be the right index to use and that the $100,000 threshold reflects real, but non-CPI cost, “inflation” because of overtime and seasonality of repairs.

Coast Guard Response: While we agree that more recent CPI-U data is available since the publication of the NPRM, we decline to use 2017 data when computing the inflation adjustment factor using the BLS CPI-U calculator because doing so would provide an incomplete year of data. The last full year of CPI-U data is 2016, and using 2016 data instead of 2015 data does not result in an inflation-adjusted amount larger than the $75,000 figure already discussed. Specifically, if we calculate the inflation adjustment by comparing the average CPI-U for the base year 1980 (82.408) with the average CPI-U for 2016 (240.007), we find a resultant inflation adjustment factor of 1.912.4 This inflation adjustment factor represents how much inflation has occurred since 1980. We multiply this inflation adjustment factor of 1.912 by the current threshold of $25,000 to calculate the raw inflation increment of $47,800. We then add this raw inflation to the original penalty of $25,000, which results in a threshold of $72,800. When rounding to the nearest thousand, this results in a revised threshold of $73,000. Accordingly, for the reasons mentioned above and in response to public comment, we are rounding to the nearest $5,000 to attain a more memorable dollar amount of $75,000.

The PVA states in its comment that it was not able to identify a single index that best fits the maritime industry. We agree that there is not a source that best fits the maritime industry. Because of this, we use the CPI-U to adjust the monetary property thresholds. The CPI is the most widely used and accepted index produced by the BLS to measure the average change over time in prices paid by urban consumers for a market basket of goods and services. Among other uses, the CPI serves as an economic indicator of the effectiveness of government economic policy, as a means of adjusting income payments, such as Social Security and military benefits, and automatic wage increases in the private sector, and as a means of adjusting Federal income tax brackets.5 The specific CPI the Coast Guard uses is the unadjusted All Items CPI-U. The CPI-U is the “broadest and most comprehensive CPI” and, using unadjusted data, is more appropriate for this purpose because seasonally adjusted CPI data is subject to revision for up to 5 years after their original release, making such data difficult to use for adjustment purposes.6 The CPI-U represents about 89 percent of the total U.S. population and is based on the expenditures of all families in urban areas,7 which includes almost all residents of urban or metropolitan areas, such as professionals, the self-employed, the poor, the unemployed, and retired persons, as well as urban wage earners and clerical workers.

Finally, after publication of the NPRM, we realized that we failed to include within the NPRM's proposed changes updates to the CG-2692 forms that OMB approved on September 29, 2016. OMB's approval was preceded by two Federal Register notices in which the Coast Guard sought public comment to these changes.8 The changes to Form CG-2692 involved revising its title and moving certain sections to two new addendum forms. In this final rule, therefore, we are making nonsubstantive changes throughout 46 CFR part 4 to reflect the recently approved updates to the CG-2692 forms.9 Because the changes to the CG-2692 forms are non-substantive, and a separate opportunity to comment on the forms was provided through the OMB approval process that is now complete, the Coast Guard finds that good cause exists under 5 U.S.C. 553(b)(B) to bypass prior notice and comment on the nonsubstantive changes to 46 CFR part 4 in this final rule.

We developed this final rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on these statutes or Executive orders.

Executive Orders 12866 (“Regulatory Planning and Review”) and 13563 (“Improving Regulation and Regulatory Review”) 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 (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. Executive Order 13771 (“Reducing Regulation and Controlling Regulatory Costs”), directs agencies to reduce regulation and control regulatory costs and provides that “for every one new regulation issued, at least two prior regulations be identified for elimination, and that the cost of planned regulations be prudently managed and controlled through a budgeting process.”

The Office of Management and Budget (OMB) has not designated this rule a significant regulatory action under section 3(f) of Executive Order 12866. Accordingly, OMB has not reviewed it. OMB considers this rule to be an Executive Order 13771 deregulatory action. See OMB's Memorandum “Guidance Implementing Executive Order 13771, Titled `Reducing Regulation and Controlling Regulatory Costs' ” (April 5, 2017). An RA follows.

In the NPRM, we proposed to revise the dollar threshold amount for reporting a marine casualty from $25,000 to $72,000. After considering public comments, we decided to increase the dollar threshold amount to $75,000. This RA incorporates the new threshold amount. We reviewed the incident investigation data from the Coast Guard's MISLE database used to estimate the affected population, and found from 2012 through 2014, there were a total of four marine casualty reports where the only outcome was property damage of $72,000.01 through $75,000. After accounting for rounding, these four additional marine casualty reports over the three year period were not substantial enough to change the approximately 5.3 percent of the 5,967 (or 316) fewer marine casualty reports we expect will be required per year after implementation of this final rule. Therefore, the affected population of this final rule remains unchanged from that of the NPRM.

We also updated the wage rates using BLS 2016 data. Table 1 summarizes the changes from the NPRM to this final rule, and the resultant impact on the RA.

This RA provides an evaluation of the economic impacts associated with this final rule. Under this final rule, the Coast Guard is updating the reportable marine casualty dollar threshold in § 4.05-1(a)(7) of 46 CFR from $25,000 to $75,000, and the reportable SMI dollar threshold in § 4.03-2(a)(3) of 46 CFR from $100,000 to $200,000, to account for inflation, as discussed in Section IV of this final rule. Table 2 provides a summary of the affected population, costs, and benefits after implementation of this final rule.

This final rule affects the owners, agents, masters, operators, or persons in charge of a commercial vessel who, pursuant to 46 CFR 4.05-1, are required to notify the Coast Guard whenever a vessel is involved in a marine casualty and whenever crewmembers, pursuant to 46 CFR 4.06-3, are required to complete chemical testing following an SMI. Specifically, the regulations in this final rule affect those individuals who would have completed the necessary forms (CG-2692 series) to report a marine casualty where the only outcome was property damage of $25,000.01 through $75,000, or an SMI with property damage of $100,000.01 through $200,000 (CG-2692 series, supplemented with an appended SMI written report (CG-2692B)).10

We used incident investigation data from the Coast Guard's MISLE database from 2012 through 2014 11 to estimate the average number of vessel crewmembers affected by this final rule. From 2012 through 2014, we found there was an average of 5,967 reports of a marine casualty per year, with one individual per vessel, who we assume to be a vessel crewmember, completing each report. An average of 271, or 4.5 percent of the annual 5,967 marine casualty reports, involved an SMI.

Of the 5,967 marine casualty reports, 5.3 percent were for a reportable marine casualty where the only outcome was property damage of $25,000.01 through $75,000. Therefore, we expect that an average of 316 fewer reports of marine casualties will be required per year (5,967 reports × 5.3 percent, rounded). Vessel owners and operators benefit from a reduction in the time burden associated with a crewmember no longer having to prepare and submit the required marine casualty reporting paperwork.

Of the 271 casualty reports that involved an SMI, 7.9 percent were cases in which the sole outcome of the SMI was property damage of $100,000.01 through $200,000. Based on that annual average, the revisions in this final rule will result in a reduction of 21 SMI written reports (CG-2692B) per year due to the change to the monetary threshold amount for an SMI involving property damage (271 reports × 7.9 percent, rounded). Because property damage of $100,000.01 through $200,000 exceeds the threshold for a reportable marine casualty, the forms for a marine casualty report (CG-2692 series) will still need to be completed under this final rule. However, marine employers will no longer be required to complete the additional paperwork required for an SMI written report (CG-2692B). Consequently, marine employers benefit from a reduction in the time burden associated with an SMI written report (CG-2692B), as well as cost savings associated with chemical testing.

The benefit or cost savings to industry is the difference between the current baseline cost to industry and the cost to industry after implementation of this final rule.

To estimate the benefit to industry, we first estimate the current cost to industry. The cost to industry includes costs for reporting and recordkeeping for a reportable marine casualty and the costs for chemical testing for marine casualties designated as SMIs. The reporting and recordkeeping costs for marine casualties include the time to complete the forms (CG-2692 series) for a marine casualty, the time for 10 percent of the forms to be internally reviewed before submission, and the time to complete the additional SMI written report (CG-2692B) pursuant to 46 CFR 4.06-60(a) when a marine casualty is designated as an SMI. The time estimates and wage rates for reporting and recordkeeping are taken from the existing Collection of Information (COI), entitled “Marine Casualty Information & Periodic Chemical Drug and Alcohol Testing of Commercial Vessel Personnel,” which has OMB Control Number 1625-0001.12 We use the same time estimates and wage rates in this analysis to maintain consistency and to capture the changes resulting from this final rule.

An average of 5,967 marine casualty reports are submitted annually by vessel owners or operators. For each reportable marine casualty, we estimated in the existing COI that it takes 1 hour for a vessel crewmember to complete the necessary forms (CG-2692 series). We estimated in the existing COI that the position of vessel crewmember is analogous to a government employee at the grade level of a GS-03. The fully loaded wage rate for a GS-03 is $26 per hour, according to Commandant Instruction 7310.1P, “Reimbursable Standard Rates.” 13 We use this version to maintain consistency with the existing COI 1625-0001. The annual baseline cost to complete the current 5,967 CG-2692 series forms is $155,142 (5,967 marine casualty reports × $26).

We estimate that it takes, on average, 1 hour to complete the CG-2692 series of forms. However, we received public comments in 2011 on the existing COI number 1625-0001 that stated that completing Form CG-2692 takes more than 1 hour, and one commenter stated that it can take up to 8 to 12 hours to complete the form.14 The reason for this difference is that some entities choose to have the forms reviewed by shoreside personnel, such as an attorney, prior to submission to the Coast Guard. We adjusted our burden estimate to account for this additional layer of review. To account for this additional time, 10 percent of the forms submitted have 10 hours of additional burden. The additional time reflects internal review by individuals employed by the vessel owner or operator in addition to the vessel crewmember who completes the form. The additional reviewers may be shoreside representatives, port engineers, and attorneys, among others. We estimate that the wage rate for this added review is done by personnel analogous to a government employee at the grade level of a GS-14. The fully loaded wage rate for a GS-14 is $101 per hour, per Commandant Instruction 7310.1P. The total annual cost of this additional time is $602,970 (597 marine casualty reports × 10 additional burden hours × $101).

When a marine casualty is designated as an SMI, the marine employer must also complete a “Report of Mandatory Chemical Testing Following A Serious Marine Incident Involving Vessels in Commercial Service” (Form CG-2692B). (See 46 CFR 4.06-60.) We estimate that it takes 0.5 hours for a marine employer analogous to a government employee at the grade level of a GS-03 to complete this form. The annual cost to complete CG-2692B is $3,523 (271 SMI reports × 0.5 hours × $26 per hour wage rate).

Table 3 shows a summary of the current industry costs for reporting and recordkeeping.

As mentioned earlier in this final rule, when a marine casualty is designated as an SMI, the crewmembers involved are required to take a chemical test pursuant to 46 CFR 4.06-3. The marine employer incurs costs for the actual costs of the chemical test and the time it takes for a crewmember to take the chemical test. The actual cost of the chemical test includes the costs of the chemical test collection kits, collector fees, Coast Guard alcohol-testing swabs, and overnight mailing. These costs can vary, but on average, the actual chemical test costs approximately $100 per test.15 The number of vessel crewmembers required to take a chemical test can vary depending on the circumstances of the SMI. We analyzed the casualty reports that involved an SMI from MISLE data and found an average of 1.5 crewmembers per SMI were required to take a chemical test. We used an estimate of 1.5 crewmembers to estimate the costs of chemical testing to account for the variation in crewmembers involved in SMIs. With an average of 271 SMIs per year, the current annual cost for the actual chemical tests is $40,650 (271 SMIs × average of 1.5 crewmembers × $100 per test).

In addition to the cost of the chemical tests, there is a cost associated with the time it takes a vessel crewmember to complete the chemical test. We estimate that it takes 1 hour for a crewmember to complete the chemical test.16 We obtained the wage rate of the crewmember from BLS, using Occupational Series 53-5000, Water Transportation Workers (May 2016). The BLS reports that the mean hourly wage rate for a water transportation worker is $33.45.17 To account for employee benefits, we use a load factor of 1.52, which we calculated from 2016 4th quarter BLS data.18 The loaded wage for a crewmember is estimated at $50.84 ($33.45 wage rate × 1.52 load factor). The cost of the time for a crewmember to take the chemical test is $20,666 (271 SMIs × average of 1.5 crewmembers × 1 hour burden × $50.84 wage rate). Therefore, the current annual cost to industry for chemical testing is $61,316 (see table 4). Adding the costs for chemical testing of $61,316 to the cost for reporting and recordkeeping of $761,635 (see table 3), brings the current total annual cost to industry to $822,951.

Increasing the dollar threshold amount for a reportable marine casualty involving property damage, as well as the dollar threshold amount for property damage within the definition of a “serious marine incident,” reduces the number of marine casualty responses by 5.3 percent, and the number of SMIs by 7.9 percent, annually. The burden hours per response remain the same, but we estimate that the total number of responses decreases to 5,651 for marine casualties and 250 for SMIs, resulting in 316 fewer reported marine casualties and 21 fewer SMIs. The following sections replicate the calculation of marine casualty reporting and chemical testing, but reflect the reduced number of reports and testing under the revised thresholds.

For each reportable marine casualty, we estimate that it takes 1 hour for a vessel crewmember to complete all parts of the necessary forms at a wage rate of $26. We estimate that the cost to complete the reduced number of marine casualty forms is $146,926 (5,651 marine casualty reports × $26).

In addition to the time needed to complete the marine casualty forms, some of the forms require additional processing time. The additional processing time reflects internal review by individuals employed by the vessel owner or operator, in addition to the time needed by the vessel crewmember who completes the form. The additional reviewers may be shoreside representatives, port engineers, or attorneys, among others. To account for this time, 10 percent 19 of the forms submitted (565 forms) have 10 hours of additional burden, and the wage rate for this added review will be done by personnel analogous to a government employee at the grade level of a GS-14. We estimate that the total cost of this additional time after the implementation of this final rule is $570,650 (565 marine casualty reports × 10 additional burden hours × $101).

As mentioned earlier in this final rule, when a marine casualty is designated as an SMI, the marine employer must complete an SMI written report (CG-2692B). We estimate that it takes 0.5 hours for a marine employer analogous to a government employee at a grade level of a GS-03 to complete this form.20 We estimate that the cost to complete the additional forms for an SMI after implementation of this final rule is $3,250 (250 SMI reports × 0.5 hours × $26 per hour wage rate).

Table 5 shows a summary of the industry costs after implementation of this final rule.

The marine employer incurs the actual costs of the chemical test and the wage burden it takes for a crewmember to complete the chemical test. On average, each chemical test costs approximately $100. We use an estimate of 1.5 crewmembers to estimate the costs of chemical testing to account for the variation in crewmembers involved in SMIs. With an average of 250 SMIs per year, the annual cost after implementation of this final rule for the actual chemical tests is $37,500 (250 SMIs × average of 1.5 crewmembers × $100 per test).

In addition to the cost of the chemical tests, there is a cost associated with the time it takes a vessel crewmember to complete the chemical test. We estimate that it takes 1 hour for a crewmember to complete the chemical test at a loaded wage rate of $50.84 per hour. We estimate that the cost of the time for a crewmember to take the chemical test under this final rule is $19,065 (250 SMIs × average of 1.5 crewmembers × 1 hour burden × $50.84 wage rate). Therefore, the annual cost to industry for chemical testing after implementation of this final rule is $56,565 (see table 6). Adding the costs for chemical testing of $56,565 to the cost for reporting and recordkeeping of $720,826 (see table 5) brings the estimated total annual cost to industry to $777,391.

The annual burden of reporting marine casualties and SMIs under the current dollar amount thresholds is $822,951. The annual burden of reporting under the new thresholds is $777,391. Therefore, we estimate that the annual cost savings or benefit to industry after implementation of this final rule is $45,560. Table 7 shows a summary of the annual current industry cost burden, the annual industry cost burden after implementation of the final rule, and the annual cost savings resulting from implementation of this final rule.