Federal Register Vol. 83, No.55,

Federal Register Volume 83, Issue 55 (March 21, 2018)

Page Range12243-12470
FR Document

83_FR_55
Current View
Page and SubjectPDF
83 FR 12469 - Taking Additional Steps to Address the Situation in VenezuelaPDF
83 FR 12412 - Sunshine Act MeetingsPDF
83 FR 12245 - Vocational-Technical Education Week, 2018PDF
83 FR 12243 - National Poison Prevention Week, 2018PDF
83 FR 12336 - Sunshine Act MeetingPDF
83 FR 12411 - Bureau of International Labor Affairs; Office of Trade and Labor Affairs; North American Agreement on Labor Cooperation; Notice of Extension of the Period for Acceptance for Submission #2018-01 (Mexico)PDF
83 FR 12260 - Requirements for Preparation, Adoption, and Submittal of Implementation PlansPDF
83 FR 12381 - Proposed Information Collection Request; Comment Request; Implementation of the Oil Pollution Act Facility Response Plan Requirements (Renewal)PDF
83 FR 12384 - Agency Information Collection Activities; Proposed Collection; Comment Request; RCRA Expanded Public ParticipationPDF
83 FR 12281 - Fisheries of the Exclusive Economic Zone Off Alaska; Pacific Cod by Hook-and-Line Catcher/Processors in the Western Regulatory Area of the Gulf of AlaskaPDF
83 FR 12383 - Request for Nominations of Candidates to the Clean Air Scientific Advisory Committee (CASAC)PDF
83 FR 12382 - Meeting of the Mobile Sources Technical Review SubcommitteePDF
83 FR 12397 - Medicare Program; Public Meetings in Calendar Year 2018 for All New Public Requests for Revisions to the Healthcare Common Procedure Coding System (HCPCS) Coding and Payment Determinations; CorrectionPDF
83 FR 12356 - Applications for New Awards; Supporting Effective Educator Development ProgramPDF
83 FR 12301 - Education Contracts Under Johnson-O'Malley ActPDF
83 FR 12351 - Application for New Awards; Expanding Opportunity Through Quality Charter Schools Program (CSP)-Grants for Credit Enhancement for Charter School FacilitiesPDF
83 FR 12404 - Agency Information Collection Activities; Indian Highway Safety GrantsPDF
83 FR 12406 - Keith F. Ostrosky, D.D.S.; Dismissal of ProceedingPDF
83 FR 12407 - Bulk Manufacturer of Controlled Substances Application: Rhodes TechnologiesPDF
83 FR 12410 - Labor Certification Process for the Temporary Employment of H-2A and H-2B Foreign Workers in the United States: Annual Update to Allowable Charges for Agricultural Workers' Meals and for Travel Subsistence Reimbursement, Including LodgingPDF
83 FR 12408 - Agency Information Collection Activities; Comment Request; Senior Community Service Employment Program (SCSEP)PDF
83 FR 12388 - Open Commission Meeting, Thursday, March 22, 2018PDF
83 FR 12274 - Revitalization of the AM Radio ServicePDF
83 FR 12399 - Office of The Director, National Institutes of Health; Notice of MeetingPDF
83 FR 12400 - Office of the Secretary; Notice of MeetingPDF
83 FR 12401 - National Cancer Institute Amended; Notice of MeetingPDF
83 FR 12399 - National Cancer Institute; Notice of Closed MeetingsPDF
83 FR 12399 - National Center for Advancing Translational Sciences; Notice of MeetingsPDF
83 FR 12401 - Center for Scientific Review; Notice of Closed MeetingPDF
83 FR 12401 - Center for Scientific Review; Notice of Closed MeetingsPDF
83 FR 12400 - Center for Scientific Review; Notice of Closed MeetingsPDF
83 FR 12336 - Agenda and Notice of Public Meeting of the Colorado Advisory CommitteePDF
83 FR 12389 - Information Collections Being Reviewed by the Federal Communications CommissionPDF
83 FR 12386 - Information Collection Being Reviewed by the Federal Communications CommissionPDF
83 FR 12387 - Information Collection Being Reviewed by the Federal Communications CommissionPDF
83 FR 12391 - Information Collection Being Submitted for Review and Approval to the Office of Management and BudgetPDF
83 FR 12313 - Elimination of Obligation To File Broadcast Mid-Term Report (Form 397)PDF
83 FR 12408 - Importer of Controlled Substances Application: Noramco, Inc.PDF
83 FR 12407 - Importer of Controlled Substances Application: Sanyal Biotechnology LLCPDF
83 FR 12344 - Air University Board of Visitors MeetingPDF
83 FR 12307 - Safety Zones; Recurring Safety Zones in Captain of the Port Sault Sainte Marie ZonePDF
83 FR 12460 - Notice of Receipt of Petition for Decision That Nonconforming Model Year 2013 and 2014 Victory Hammer 8-Ball Motorcycles Are Eligible for ImportationPDF
83 FR 12343 - Gulf of Mexico Fishery Management Council; Public MeetingPDF
83 FR 12343 - New England Fishery Management Council; Public MeetingPDF
83 FR 12342 - Fisheries of the South Atlantic; Southeast Data, Assessment, and Review (SEDAR); Stock ID Workshop for Cobia (Rachycentron canadum)PDF
83 FR 12280 - Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 2018 Commercial Accountability Measure and Closure for South Atlantic Golden TilefishPDF
83 FR 12350 - Proposed Collection; Comment RequestPDF
83 FR 12464 - Notice of Open Public HearingPDF
83 FR 12393 - Agency Information Collection Activities: Submission for OMB Review; Comment RequestPDF
83 FR 12461 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Multiple IRS Information Collection RequestsPDF
83 FR 12337 - Certain Carbon and Alloy Steel Cut-to-Length Plate From the People's Republic of China: Preliminary Results of Countervailing Duty Expedited ReviewPDF
83 FR 12333 - Notice of Request for Revision to an Approved Information Collection (Public Health Information System)PDF
83 FR 12334 - Agency Information Collection Activities: Proposed Collection; Comment Request-Special Supplemental Nutrition Program for Women, Infants and Children (WIC) Forms: FNS-698, FNS-699, and FNS-700; The Integrity Profile (TIP)PDF
83 FR 12281 - Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Snapper-Grouper Resources of the South Atlantic; 2018-2019 Recreational Fishing Season for Black Sea BassPDF
83 FR 12332 - Atlantic Highly Migratory Species; Atlantic Bluefin Tuna Fisheries; Pelagic Longline Fishery Management and Shortfin Mako Shark Management MeasuresPDF
83 FR 12305 - Drawbridge Operation Regulation; Ebey Slough, Marysville, WAPDF
83 FR 12412 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Certificate of Medical NecessityPDF
83 FR 12345 - Privacy Act of 1974; System of RecordsPDF
83 FR 12411 - Notice of a Virtual Meeting of the Task Force on Apprenticeship ExpansionPDF
83 FR 12458 - Quarterly Rail Cost Adjustment FactorPDF
83 FR 12406 - Certain Polyester Staple Fiber From ChinaPDF
83 FR 12403 - Extension of National Customs Automation Program; eBond TestPDF
83 FR 12340 - Notice of Availability of the Deepwater Horizon Oil Spill Louisiana Trustee Implementation Group Final Strategic Restoration Plan and Environmental Assessment #3PDF
83 FR 12413 - Exelon Generation Company, LLC; Oyster Creek Nuclear Generating Station; Revision to License Condition 2.C.(5) Regarding BWRVIP-18PDF
83 FR 12458 - Volkswagen Group of America, Inc., Receipt of Petition for Decision of Inconsequential NoncompliancePDF
83 FR 12259 - Immediately in Effect Guidance for Industry; Compliance Policy for Combination Product Postmarketing Safety Reporting; AvailabilityPDF
83 FR 12292 - Postmarketing Safety Reporting for Combination Products; Draft Guidance for Industry and Food and Drug Administration Staff; AvailabilityPDF
83 FR 12303 - Special Local Regulation; USS PORTLAND Commissioning, Portland, ORPDF
83 FR 12402 - Discontinuance of the Nationwide Differential Global Positioning System (NDGPS)PDF
83 FR 12377 - Dominion Energy Cove Point LNG, LP; Notice of Technical ConferencePDF
83 FR 12380 - Transcontinental Gas Pipe Line Company, LLC; Notice of Technical ConferencePDF
83 FR 12379 - ECOsponsible, LLC; Notice Of Intent To File License Application, Filing of Pre-Application Document, and Approving Use of The Traditional Licensing ProcessPDF
83 FR 12379 - Great Lakes Hydro America, LLC; Notice of Availability of Draft Environmental AssessmentPDF
83 FR 12380 - Dominion Energy Overthrust Pipeline, LLC; Notice of Initiation of Section 5 ProceedingPDF
83 FR 12370 - Midwestern Gas Transmission Company; Notice of Initiation of Section 5 ProceedingPDF
83 FR 12370 - GASNA 36P, LLC ; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
83 FR 12380 - GASNA 6P, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
83 FR 12378 - Notice of Institution of Section 206 Proceeding and Refund Effective DatePDF
83 FR 12371 - Notice of Institution of Section 206 Proceeding and Refund Effective DatePDF
83 FR 12371 - Combined Notice of FilingsPDF
83 FR 12376 - Combined Notice of Filings #2PDF
83 FR 12377 - Combined Notice of Filings #1PDF
83 FR 12371 - Inquiry Regarding the Effect of the Tax Cuts and Jobs Act on Commission-Jurisdictional RatesPDF
83 FR 12362 - Inquiry Regarding the Commission's Policy for Recovery of Income Tax CostsPDF
83 FR 12395 - Agency Information Collection Activities; Announcement of Board Approval Under Delegated Authority and Submission to OMBPDF
83 FR 12336 - Notice of Public Meeting of the Virginia Advisory CommitteePDF
83 FR 12413 - Agency Information Collection Activities: Proposed Collection; Comment RequestPDF
83 FR 12247 - Special Conditions: Bombardier Inc. BD-700-2A12 and BD-700-2A13 Airplane; Flight Envelope Protection: Normal Load Factor (g) LimitingPDF
83 FR 12252 - Special Conditions: Bombardier Inc. BD-700-2A12 and BD-700-2A13 Airplane; Flight-Envelope Protection: General Limiting RequirementsPDF
83 FR 12432 - Joint Industry Plan; Notice of Filing of the Seventeenth Amendment to the National Market System Plan To Address Extraordinary Market Volatility by Cboe BZX Exchange, Inc., Cboe BYX Exchange, Inc., Cboe EDGA Exchange, Inc., Cboe EDGX Exchange, Inc., Chicago Stock Exchange, Inc., Financial Industry Regulatory Authority, Inc., Investors Exchange LLC, NASDAQ BX, Inc., NASDAQ PHLX LLC, The Nasdaq Stock Market LLC, NYSE National, Inc., New York Stock Exchange LLC, NYSE American LLC, and NYSE Arca, Inc.PDF
83 FR 12414 - Joint Industry Plan; Notice of Filing and Immediate Effectiveness of the Sixteenth Amendment to the National Market System Plan To Address Extraordinary Market Volatility by Cboe BZX Exchange, Inc., Cboe BYX Exchange, Inc., Cboe EDGA Exchange, Inc., Cboe EDGX Exchange, Inc., Chicago Stock Exchange, Inc., Financial Industry Regulatory Authority, Inc., Investors Exchange LLC, NASDAQ BX, Inc., NASDAQ PHLX LLC, The Nasdaq Stock Market LLC, NYSE National, Inc., New York Stock Exchange LLC, NYSE American LLC, and NYSE Arca, Inc.PDF
83 FR 12398 - Drug Products Labeled as Homeopathic; Draft Guidance for Staff and Industry; Availability; Extension of Comment PeriodPDF
83 FR 12294 - Regulation of Flavors in Tobacco ProductsPDF
83 FR 12402 - National Library of Medicine; Notice of Closed MeetingsPDF
83 FR 12401 - National Institute of Allergy and Infectious Diseases; Notice of Closed MeetingPDF
83 FR 12338 - Waiver of Requirements Under Sections 101(a) and 102(a) of the Marine Mammal Protection Act (MMPA) for the Mid-Barataria Sediment Diversion, the Mid-Breton Sound Sediment Diversion, and Calcasieu Ship Channel Salinity Control Measures ProjectsPDF
83 FR 12251 - Special Conditions: Bombardier Inc., Model BD-700-2A12 and BD-700-2A13 Series Airplanes, Flight Envelope Protection: Pitch and Roll LimitingPDF
83 FR 12249 - Special Conditions: Bombardier Inc. Model BD-700-2A12 and BD-700-2A13 Series Airplanes; Synthetic Vision System on Head-Up DisplayPDF
83 FR 12335 - Meeting of the Collaborative Forest Restoration Program Technical Advisory PanelPDF
83 FR 12447 - Self-Regulatory Organizations; LCH SA; Order Granting Approval on an Accelerated Basis of Proposed Rule Change Relating to Self-Referencing TransactionsPDF
83 FR 12449 - Self-Regulatory Organizations; Cboe BZX Exchange, Inc.; Notice of Filing of a Proposed Rule Change To List on the Exchange Eighteen ADRPLUS Funds of the Precidian ETFs Trust Under Rule 14.11(i), Managed Fund SharesPDF
83 FR 12405 - National Register of Historic Places; Notification of Pending Nominations and Related ActionsPDF
83 FR 12430 - Joint Industry Plan; Notice of Filing and Immediate Effectiveness of Amendment to the National Market System Plan for the Selection and Reservation of Securities Symbols To Add Miami International Securities Exchange, LLC as a Party TheretoPDF
83 FR 12283 - Rulemaking Petition: Former Candidates' Personal UsePDF
83 FR 12431 - Meeting of the Fixed Income Market Structure Advisory CommitteePDF
83 FR 12260 - Aluminum tris (O-ethylphosphonate); Pesticide TolerancesPDF
83 FR 12269 - S-Metolachlor; Pesticide TolerancesPDF
83 FR 12265 - Flutianil; Pesticide TolerancesPDF
83 FR 12311 - Receipt of Several Pesticide Petitions Filed for Residues of Pesticide Chemicals in or on Various CommoditiesPDF
83 FR 12405 - Certain Mobile and Portable Electronic Devices Incorporating Haptics (Including Smartphones and Laptops) and Components Thereof; Commission Determination Not To Review an Initial Determination Terminating the Investigation Based on a Settlement Agreement; Termination of the InvestigationPDF
83 FR 12382 - Labat-Anderson Incorporated; Transfer of DataPDF
83 FR 12385 - Pesticides; Guidance for Pesticide Registrants on the Determination of Minor UsePDF
83 FR 12454 - Presidential Declaration Amendment of a Major Disaster for the Commonwealth of Puerto RicoPDF
83 FR 12344 - Submission for OMB Review; Comment Request; “National Summer Teacher Institute”PDF
83 FR 12397 - Member Meeting AgendaPDF
83 FR 12455 - Presidential Declaration Amendment of a Major Disaster for the Commonwealth of Puerto RicoPDF
83 FR 12326 - Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Reef Fish Fishery of the Gulf of Mexico; Modifications to Individual Fishing Quota ProgramsPDF
83 FR 12455 - Agency Information Collection Activities: Proposed Request and Comment RequestPDF
83 FR 12318 - NCUA Suspension and Debarment ProceduresPDF
83 FR 12283 - Federal Credit Union BylawsPDF
83 FR 12286 - Request for Information Regarding the Bureau's Adopted Regulations and New Rulemaking AuthoritiesPDF
83 FR 12275 - Federal Migratory Bird Hunting and Conservation Stamp (Duck Stamp) Contest RegulationsPDF
83 FR 12289 - Proposed Establishment of Class E Airspace; Pago Pago, American SamoaPDF
83 FR 12290 - Proposed Amendment of Air Traffic Service (ATS) Route Q-5; Western United StatesPDF
83 FR 12254 - Labeling of Certain Household Products Containing Methylene Chloride; Supplemental GuidancePDF

Issue

83 55 Wednesday, March 21, 2018 Contents Agriculture Agriculture Department See

Food and Nutrition Service

See

Food Safety and Inspection Service

See

Forest Service

AIRFORCE Air Force Department NOTICES Meetings: Air University Board of Visitors, 12344-12345 2018-05723 Consumer Financial Protection Bureau of Consumer Financial Protection PROPOSED RULES Requests for Information: Adopted Regulations and New Rulemaking Authorities, 12286-12289 2018-05612 Centers Medicare Centers for Medicare & Medicaid Services NOTICES Meetings: Public Requests for Revisions to the Healthcare Common Procedure Coding System Coding and Payment Determinations; Correction, 12397 2018-05751 Chemical Chemical Safety and Hazard Investigation Board NOTICES Meetings; Sunshine Act, 12336 2018-05870 Civil Rights Civil Rights Commission NOTICES Meetings: Colorado Advisory Committee, 12336-12337 2018-05732 Virginia Advisory Committee, 12336 2018-05665 Coast Guard Coast Guard PROPOSED RULES Drawbridge Operations: Ebey Slough, Marysville, WA, 12305-12307 2018-05701 Safety Zones: Recurring Safety Zones in Captain of the Port Sault Sainte Marie Zone, 12307-12311 2018-05721 Special Local Regulations: USS PORTLAND Commissioning, Portland, OR, 12303-12305 2018-05685 NOTICES Discontinuance of Nationwide Differential Global Positioning System, 12402-12403 2018-05684 Commerce Commerce Department See

International Trade Administration

See

National Oceanic and Atmospheric Administration

See

Patent and Trademark Office

Consumer Product Consumer Product Safety Commission RULES Guidance: Labeling of Certain Household Products Containing Methylene Chloride, 12254-12259 2018-05580 Defense Department Defense Department See

Air Force Department

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 12350-12351 2018-05713 Privacy Act; System of Records, 12345-12350 2018-05699
Drug Drug Enforcement Administration NOTICES Decisions and Orders: Keith F. Ostrosky, D.D.S., 12406-12407 2018-05746 Importers of Controlled Substances; Applications: Noramco, Inc., 12408 2018-05725 Sanyal Biotechnology LLC, 12407 2018-05724 Manufacturers of Controlled Substances; Applications: Rhodes Technologies, 12407-12408 2018-05745 Education Department Education Department NOTICES Applications for New Awards: Expanding Opportunity Through Quality Charter Schools Program (CSP)—Grants for Credit Enhancement for Charter School Facilities, 12351-12356 2018-05748 Supporting Effective Educator Development Program, 12356-12362 2018-05750 Employment and Training Employment and Training Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Senior Community Service Employment Program, 12408-12410 2018-05743 Labor Certification Process for the Temporary Employment of H-2A and H-2B Foreign Workers in the United States: Annual Update to Allowable Charges for Agricultural Workers' Meals and for Travel Subsistence Reimbursement, Including Lodging, 12410-12411 2018-05744 Meetings: Task Force on Apprenticeship Expansion, 12411 2018-05698 Energy Department Energy Department See

Federal Energy Regulatory Commission

Environmental Protection Environmental Protection Agency RULES Pesticide Tolerances: Aluminum tris (O-ethylphosphonate), 12260-12265 2018-05642 Flutianil, 12265-12269 2018-05640 S-Metolachlor, 12269-12274 2018-05641 Requirements for Preparation, Adoption, and Submittal of Implementation Plans; CFR Correction, 12260 2018-05798 PROPOSED RULES Pesticide Petitions: Residues of Pesticide Chemicals in or on Various Commodities, 12311-12313 2018-05639 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Implementation of the Oil Pollution Act Facility Response Plan Requirements, 12381-12382 2018-05760 RCRA Expanded Public Participation, 12384-12385 2018-05759 Guidance: Pesticide Registrants on Determination of Minor Use, 12385-12386 2018-05635 Meetings: Mobile Sources Technical Review Subcommittee, 12382 2018-05753 Requests for Nominations: Clean Air Scientific Advisory Committee, 12383-12384 2018-05754 Transfers of Data: Labat-Anderson Inc., 12382-12383 2018-05636 Federal Aviation Federal Aviation Administration RULES Special Conditions: Bombardier Inc. BD-700-2A12 and BD-700-2A13 Airplane; Flight Envelope Protection: Normal Load Factor (g) Limiting, 12247-12249 2018-05663 Bombardier Inc. BD-700-2A12 and BD-700-2A13 Airplane; Flight-Envelope Protection: General Limiting Requirements, 12252-12254 2018-05662 Bombardier Inc. Model BD-700-2A12 and BD-700-2A13 Series Airplanes; Synthetic Vision System on Head-Up Display, 12249-12251 2018-05650 Bombardier Inc., Model BD-700-2A12 and BD-700-2A13 Series Airplanes, Flight Envelope Protection: Pitch and Roll Limiting, 12251-12252 2018-05651 PROPOSED RULES Amendment of Air Traffic Service Routes: Q-5; Western United States, 12290-12292 2018-05584 Establishment of Class E Airspace: Pago Pago, American Samoa, 12289-12290 2018-05585 Federal Communications Federal Communications Commission RULES Revitalization of the AM Radio Service, 12274-12275 2018-05741 PROPOSED RULES Elimination of Obligation to File Broadcast Mid-Term Report, 12313-12318 2018-05726 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 12386-12392 2018-05727 2018-05729 2018-05730 2018-05731 Meetings, 12388-12389 2018-05742 Federal Deposit Federal Deposit Insurance Corporation NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 12393-12395 2018-05711 Federal Election Federal Election Commission PROPOSED RULES Rulemaking Petitions: Former Candidates' Personal Use, 12283 2018-05644 Federal Energy Federal Energy Regulatory Commission NOTICES Combined Filings, 12371, 12376-12378 2018-05671 2018-05672 2018-05673 Effect of Tax Cuts and Jobs Act on Commission-Jurisdictional Rates, 12371-12376 2018-05670 Environmental Assessments; Availability, etc.: Great Lakes Hydro America, LLC, 12379 2018-05680 Initial Market-Based Rate Filings Including Requests for Blanket Section 204 Authorizations: GASNA 36P, LLC, 12370 2018-05677 GASNA 6P, LLC, 12380-12381 2018-05676 Initiation of Section 5 Proceedings: Dominion Energy Overthrust Pipeline, LLC, 12380 2018-05679 Midwestern Gas Transmission Co., 12370-12371 2018-05678 Inquiry Regarding Commission's Policy for Recovery of Income Tax Costs, 12362-12370 2018-05668 License Applications: ECOsponsible, LLC, 12379-12380 2018-05681 Meetings: Dominion Energy Cove Point LNG, LP, Technical Conference, 12377 2018-05683 Transcontinental Gas Pipe Line Company, LLC, Technical Conference, 12380 2018-05682 Refund Effective Dates: AEP Appalachian Transmission Company, Inc., et al., 12371 2018-05674 Alcoa Power Generating Inc.—Long Sault Division, et al., 12378-12379 2018-05675 Federal Reserve Federal Reserve System NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 12395-12397 2018-05666 Federal Retirement Federal Retirement Thrift Investment Board NOTICES Meetings: Board Member, 12397 2018-05632 Fish Fish and Wildlife Service RULES Federal Migratory Bird Hunting and Conservation Stamp Contest Regulations, 12275-12280 2018-05588 Food and Drug Food and Drug Administration RULES Guidance: Compliance Policy for Combination Product Postmarketing Safety Reporting, 12259-12260 2018-05688 PROPOSED RULES Guidance: Postmarketing Safety Reporting for Combination Products, 12292-12294 2018-05687 Regulation of Flavors in Tobacco Products, 12294-12301 2018-05655 NOTICES Guidance: Drug Products Labeled as Homeopathic, 12398-12399 2018-05659 Food and Nutrition Food and Nutrition Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals Special Supplemental Nutrition Program for Women, Infants and Children; Integrity Profile, 12334-12335 2018-05704 Food Safety Food Safety and Inspection Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Public Health Information System, 12333-12334 2018-05706 Forest Forest Service NOTICES Meetings: Collaborative Forest Restoration Program Technical Advisory Panel, 12335-12336 2018-05649 Health and Human Health and Human Services Department See

Centers for Medicare & Medicaid Services

See

Food and Drug Administration

See

National Institutes of Health

Homeland Homeland Security Department See

Coast Guard

See

U.S. Customs and Border Protection

Indian Affairs Indian Affairs Bureau PROPOSED RULES Education Contracts under Johnson-O' Malley Act, 12301-12303 2018-05749 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Indian Highway Safety Grants, 12404-12405 2018-05747 Interior Interior Department See

Fish and Wildlife Service

See

Indian Affairs Bureau

See

National Park Service

International Trade Adm International Trade Administration NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Certain Carbon and Alloy Steel Cut-to-Length Plate from the People's Republic of China, 12337-12338 2018-05709 International Trade Com International Trade Commission NOTICES Investigations; Determinations, Modifications, and Rulings, etc.: Certain Mobile and Portable Electronic Devices Incorporating Haptics (Including Smartphones and Laptops) and Components Thereof, 12405-12406 2018-05637 Certain Polyester Staple Fiber from China, 12406 2018-05695 Justice Department Justice Department See

Drug Enforcement Administration

Labor Department Labor Department See

Employment and Training Administration

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Certificate of Medical Necessity, 12412 2018-05700 Extension of the Period for Acceptance for Submission #2018-01 (Mexico), 12411-12412 2018-05866
Morris K. Morris K. and Stewart L. Udall Foundation NOTICES Meetings; Sunshine Act, 12412-12413 2018-05889 National Archives National Archives and Records Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 12413 2018-05664 National Credit National Credit Union Administration PROPOSED RULES Federal Credit Union Bylaws, 12283-12286 2018-05625 Suspension and Debarment Procedures, 12318-12326 2018-05626 National Highway National Highway Traffic Safety Administration NOTICES Importation Eligibility Petitions: Nonconforming Model Year 2013 and 2014 Victory Hammer 8-Ball Motorcycles, 12460-12461 2018-05720 Petitions for Decisions of Inconsequential Noncompliance: Volkswagen Group of America, Inc., 12458-12460 2018-05689 National Institute National Institutes of Health NOTICES Meetings: Center for Scientific Review, 12400-12401 2018-05733 2018-05734 2018-05735 Muscular Dystrophy Coordinating Committee, 12400 2018-05739 National Cancer Institute, 12399, 12401 2018-05737 2018-05738 National Center for Advancing Translational Sciences, 12399-12400 2018-05736 National Institute of Allergy and Infectious Diseases, 12401-12402 2018-05653 National Library of Medicine, 12402 2018-05654 Office of The Director, 12399 2018-05740 National Oceanic National Oceanic and Atmospheric Administration RULES Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic: 2018 Commercial Accountability Measure and Closure for South Atlantic Golden Tilefish, 12280-12281 2018-05714 Snapper-Grouper Resources of South Atlantic; 2018-2019 Recreational Fishing Season for Black Sea Bass, 12281 2018-05703 Fisheries of the Exclusive Economic Zone Off Alaska: Pacific Cod by Hook-and-Line Catcher/Processors in Western Regulatory Area of Gulf of Alaska, 12281-12282 2018-05756 PROPOSED RULES Atlantic Highly Migratory Species: Atlantic Bluefin Tuna Fisheries; Pelagic Longline Fishery Management and Shortfin Mako Shark Management Measures, 12332 2018-05702 Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic: Reef Fish Fishery of Gulf of Mexico; Modifications to Individual Fishing Quota Programs, 12326-12332 2018-05628 NOTICES Environmental Assessments; Availability, etc.: Deepwater Horizon Oil Spill Louisiana Trustee Implementation Group Final Strategic Restoration Plan, 12340-12342 2018-05691 Fisheries of the South Atlantic; Southeast Data, Assessment, and Review: Stock ID Workshop for Cobia (Rachycentron canadum), 12342-12343 2018-05716 Meetings: Gulf of Mexico Fishery Management Council, 12343-12344 2018-05719 New England Fishery Management Council, 12343 2018-05718 Waiver of Requirements of the Marine Mammal Protection Act: Mid-Barataria Sediment Diversion, Mid-Breton Sound Sediment Diversion, and Calcasieu Ship Channel Salinity Control Measures Projects, 12338-12340 2018-05652 National Park National Park Service NOTICES National Register of Historic Places: Pending Nominations and Related Actions, 12405 2018-05646 Nuclear Regulatory Nuclear Regulatory Commission NOTICES License Amendments; Applications: Exelon Generation Company, LLC Oyster Creek Nuclear Generating Station Revision to License Condition 2.C.(5) Regarding BWRVIP-18; Withdrawal, 12413-12414 2018-05690 Patent Patent and Trademark Office NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: National Summer Teacher Institute, 12344 2018-05633 Presidential Documents Presidential Documents PROCLAMATIONS Special Observances: National Poison Prevention Week (Proc. 9706), 12243-12244 2018-05875 Vocational-Technical Education Week (Proc. 9707), 12245-12246 2018-05878 EXECUTIVE ORDERS Venezuela; National Emergency, Additional Steps to Address (EO 13827), 12467-12470 2018-05916 Securities Securities and Exchange Commission NOTICES Meetings: Fixed Income Market Structure Advisory Committee, 12431 2018-05643 Self-Regulatory Organizations; Proposed Rule Changes: Cboe BZX Exchange, Inc., 12449-12454 2018-05647 Cboe BZX Exchange, Inc., Cboe BYX Exchange, Inc., et al., 12414-12430, 12432-12447 2018-05660 2018-05661 LCH SA, 12447-12448 2018-05648 Miami International Securities Exchange, LLC, 12430-12431 2018-05645 Small Business Small Business Administration NOTICES Disaster Declarations: Puerto Rico; Amendment 4, 12454-12455 2018-05634 Puerto Rico; Amendment 5, 12455 2018-05629 Social Social Security Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 12455-12458 2018-05627 Surface Transportation Surface Transportation Board NOTICES Quarterly Rail Cost Adjustment Factor, 12458 2018-05697 Transportation Department Transportation Department See

Federal Aviation Administration

See

National Highway Traffic Safety Administration

Treasury Treasury Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 12461-12464 2018-05710 Customs U.S. Customs and Border Protection NOTICES National Customs Automation Program eBond Test, 12403-12404 2018-05694 U.S. China U.S.-China Economic and Security Review Commission NOTICES Public Hearings, 12464-12465 2018-05712 Separate Parts In This Issue Part II Presidential Documents, 12467-12470 2018-05916 Reader Aids

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

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83 55 Wednesday, March 21, 2018 Rules and Regulations DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 25 [Docket No. FAA-2018-0229; Special Conditions No. 25-720-SC] Special Conditions: Bombardier Inc. BD-700-2A12 and BD-700-2A13 Airplane; Flight Envelope Protection: Normal Load Factor (g) Limiting AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final special conditions; request for comments.

SUMMARY:

These special conditions are issued for the Bombardier Inc. (Bombardier) Model BD-700-2A12 and BD-700-2A13 airplanes. These airplanes will have a novel or unusual design feature when compared to the state of technology envisioned in the airworthiness standards for transport-category airplanes. This design feature will use a fly-by-wire electronic flight control system (EFCS) that will prevent the flight crew from inadvertently or intentionally exceeding the positive or negative airplane limit-load-factor. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

DATES:

This action is effective on Bombardier Inc. on March 21, 2018. Send your comments by May 7, 2018.

ADDRESSES:

Send comments identified by docket number FAA-2018-0229 using any of the following methods:

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

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

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

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

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

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

FOR FURTHER INFORMATION CONTACT:

Joe Jacobsen, FAA, Airplane and Flight Crew Interface Section, AIR-671, Transport Standards Branch, Policy and Innovation Division, Aircraft Certification Service, 2200 S. 216th St., Des Moines, Washington 98198-6547; telephone 206-231-3158; facsimile 425-231-3398.

SUPPLEMENTARY INFORMATION:

The substance of these special conditions has been published in the Federal Register for public comment in several prior instances with no substantive comments received. Therefore, the FAA has determined that prior public notice and comment are unnecessary, and finds that, for the same reason, good cause exists for adopting these special conditions upon publication in the Federal Register.

Comments Invited

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

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

Background

On May 30, 2012, Bombardier applied for an amendment to Type Certificate No. T00003NY to include the new Models BD-700-2A12 and BD-700-2A13 airplanes. The Model BD-700-2A12 and BD-700-2A13 airplanes, which are derivatives of the BD-700 series currently approved under Type Certificate No. T00003NY. The Model BD-700-2A12 and BD-700-2A13 airplanes augment the existing BD-700 family of airplane and are marketed as the Bombardier Global 7000 and Global 8000 airplanes, respectively. These are business jets with a maximum certified passenger capacity of 19. The Model BD-700-2A12 and BD-700-2A13 airplanes will have a maximum takeoff weight of 106,250 lbs. and 104,800 lbs., respectively.

Type Certification Basis

Under the provisions of title 14, Code of Federal Regulations (14 CFR) 21.101, Bombardier must show that the Model BD-700-2A12 and BD-700-2A13 airplanes meet the applicable provisions of the regulations listed in Type Certificate No. T00003NY or the applicable regulations in effect on the date of application for the change except for earlier amendments as agreed upon by the FAA.

If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Model BD-700-2A12 and BD-700-2A13 airplanes because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.

In addition to the applicable airworthiness regulations and special conditions, the Model BD-700-2A12 and BD-700-2A13 airplanes must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34 and the noise-certification requirements of 14 CFR part 36.

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

Novel or Unusual Design Features

The Model BD-700-2A12 and BD-700-2A13 airplanes will incorporate the following novel or unusual design feature:

The Model BD-700-2A12 and BD-700-2A13 airplanes will use a fly-by-wire electronic flight control system (EFCS) that will prevent the flight crew from inadvertently or intentionally exceeding the positive or negative airplane limit-load-factor. This feature is considered novel or unusual because the current regulations do not provide standards for maneuverability and controllability evaluations for such systems. Therefore, special conditions are needed to ensure adequate maneuverability and controllability when using this design feature.

Discussion

Title 14, Code of Federal Regulations, part 25 does not specify requirements or policy for demonstrating maneuver control that impose any handling qualities requirements beyond the design limit structural loads. Nevertheless, some pilots have become accustomed to the availability of this excess maneuver capacity in case of extreme emergency such as upset recoveries or collision avoidance.

As with previous fly-by-wire airplanes, the FAA has no regulatory or safety reason to prohibit a design for an electronic flight control system with load factor limiting. It is possible that pilots accustomed to this feature feel more freedom in commanding full-stick displacement maneuvers because of the following:

a. Knowledge that the limit system will protect the structure,

b. Low stick force/displacement gradients,

c. Smooth transition from pilot elevator control to limit control.

These special conditions will ensure adequate maneuverability and controllability when using this design feature.

The normal load factor limit on the Model BD-700-2A12 and BD-700-2A13 airplanes is unique in that traditional airplanes with conventional flight control systems (mechanical linkages) are limited in the pitch axis only by the elevator surface area and deflection limit. The elevator control power is normally derived for adequate controllability and maneuverability at the most critical longitudinal pitching moment. The result is that traditional airplanes have a significant portion of the flight envelope wherein maneuverability in excess of limit structural design values is possible.

These special conditions for the Model BD-700-2A12 and BD-700-2A13 airplanes supplement the applicable regulations, including § 25.143, to accommodate the unique features of the flight envelope limiting systems, and establish an equivalent level of safety to the existing regulations.

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

Applicability

As discussed above, these special conditions are applicable to the Model BD-700-2A12 and BD-700-2A13 airplanes. Should Bombardier apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, these special conditions would apply to that model as well.

Conclusion

This action affects only certain novel or unusual design features on Model BD-700-2A12 and BD-700-2A13 airplanes. It is not a rule of general applicability.

List of Subjects in 14 CFR Part 25

Aircraft, Aviation safety, Reporting and recordkeeping requirements.

The authority citation for these special conditions is as follows:

Authority:

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

The Special Conditions

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Model Bombardier BD-700-2A12 and BD-700-2A13 airplanes.

Flight Envelope Protection: Normal Load Factor (g) Limiting

1. To meet the intent of adequate maneuverability and controllability required by § 25.143(a), and in addition to the requirements of § 25.143(a) and in the absence of other limiting factors, the following special conditions based on § 25.333(b) apply:

a. The positive limiting load factor must not be less than:

(1) 2.5g for the normal state of the electronic flight control system with the high lift devices retracted.

(2) 2.0g for the normal state of the electronic flight control system with the high lift devices extended.

b. The negative limiting load factor must be equal to or more negative than:

(1) Minus 1.0g for the normal state of the electronic flight control system with the high lift devices retracted.

(2) 0.0g for the normal state of the electronic flight control system with high lift devices extended.

c. Maximum reachable positive load factor, wings level, may be limited by by the characteristics of the electronic flight control system or flight envelope protections (other than load factor protection) provided that

(1) the required values are readily achievable in turns, and

(2) wings-level pitch up is satisfactory.

d. Maximum achievable negative load factor may be limited by the characteristics of the electronic flight control system or flight envelope protections (other than load factor protection) provided:

(1) Pitch down responsiveness is satisfactory, and

(2) From level flight, 0g is readily achievable or alternatively, a satisfactory trajectory change is readily achievable at operational speeds. For the FAA to consider a trajectory change as satisfactory, the applicant should propose and justify a pitch rate that provides sufficient maneuvering capability in the most critical scenarios.

e. Compliance demonstration with the above requirements may be performed without ice accretion on the airframe.

These special conditions do not impose an upper bound for the normal load factor limit, nor do they require that the limiter exist. If the limit is set at a value beyond the structural design limit maneuvering load factor “n” of §§ 25.333(b) and 25.337(b) and (c), there should be a very obvious positive tactile feel built into the controller so that it serves as a deterrent to inadvertently exceeding the structural limit.

Issued in Des Moines, Washington, on March 15, 2018. Victor Wicklund, Manager, Transport Standards Branch, Policy and Innovation Division, Aircraft Certification Service.
[FR Doc. 2018-05663 Filed 3-20-18; 8:45 am] BILLING CODE 4910-13-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 25 [Docket No. FAA-2018-0193; Special Conditions No. 25-718-SC] Special Conditions: Bombardier Inc. Model BD-700-2A12 and BD-700-2A13 Series Airplanes; Synthetic Vision System on Head-Up Display AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final special conditions; request for comments.

SUMMARY:

These special conditions are issued for the Bombardier Inc. (Bombardier) Model BD-700-2A12 and BD-700-2A13 series airplanes. These airplanes will have a novel or unusual design feature when compared to the state of technology envisioned in the applicable airworthiness standards for transport-category airplanes. These airplanes incorporate a novel or unusual design feature associated with a synthetic vision system (SVS) that displays video imagery on the head-up display (HUD). The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

DATES:

This action is effective on Bombardier on March 21, 2018. Send your comments by May 7, 2018.

ADDRESSES:

Send comments identified by docket number FAA-2018-0193 using any of the following methods:

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

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

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

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

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

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

FOR FURTHER INFORMATION CONTACT:

John Stuber, FAA, Airplane and Flight Crew Interface Section, AIR-671, Transport Standards Branch, Policy and Innovation Division, Aircraft Certification Service, 2200 South 216th Street, Des Moines, Washington 98198; telephone 206-231-3164; facsimile 206-231-3398.

SUPPLEMENTARY INFORMATION:

The substance of these special conditions has been subjected to the notice and comment period in several prior instances and has been derived without substantive change from the substance contained herein. Therefore, the FAA has determined that prior public notice and comment are unnecessary, and finds that, for the same reason, good cause exists for adopting these special conditions upon publication in the Federal Register.

Comments Invited

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

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

Background

On May 30, 2012, Bombardier applied for an amendment to Type Certificate No. T00003NY to include the new Model BD-700-2A12 and BD-700-2A13 series airplanes. The Bombardier Model BD-700-2A12 and BD-700-2A13 series airplanes, which are derivatives of the Model BD-700 airplane currently approved under Type Certificate No. T00003NY, are business jets with a maximum certified passenger capacity of 19. The maximum takeoff weight of the Model BD-700-2A12 airplane is 106,250 lbs. and 104,800 lbs. for the Model BD-700-2A13 airplane.

Type Certification Basis

Under the provisions of title 14, Code of Federal Regulations (14 CFR) 21.101, Bombardier must show that the Model BD-700-2A12 and BD-700-2A13 series airplanes meet the applicable provisions of the regulations listed in Type Certificate No. T00003NY, or the applicable regulations in effect on the date of application for the change except for earlier amendments as agreed upon by the FAA.

If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Model BD-700-2A12 and BD-700-2A13 series airplanes because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.

In addition to the applicable airworthiness regulations and special conditions, the Bombardier Model BD-700-2A12 and BD-700-2A13 series airplanes must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34, and the noise-certification requirements of 14 CFR part 36.

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

Novel or Unusual Design Features

The Model BD-700-2A12 and BD-700-2A13 series airplanes will incorporate the following novel or unusual design features:

Flight-deck design incorporating a synthetic vision system that displays video imagery on the HUD.

Discussion

When the FAA began to evaluate the display of enhanced vision-system (EVS) imagery on the HUD, significant potential to obscure the outside view became apparent, contrary to the requirements of § 25.773. This rule does not permit distortions and reflections in the pilot-compartment view that can interfere with normal duties, and the FAA did not write a rule in anticipation of such technology. The video image potentially interferes with the pilot's ability to see the natural scene in the center of the forward field of view.

The FAA issued special conditions for such HUD/EVS installations to ensure that the level of safety required by § 25.773 would be met even when the image might partially obscure the outside view. While many of the characteristics of EVS and SVS video differ, they have one thing in common: The potential for interference with the outside view through the airplane windshield. Although the pilot may be able to see around and through small, individual symbols on the HUD, the pilot may not be able to see around or through the image that fills the display without some interference of the outside view. Nevertheless, the SVS may be capable of meeting the required level of safety when considering the combined view of the image and the outside scene visible to the pilot through the image. It is essential that the pilot can use this combination of image and natural view of the outside scene as safely and effectively as is the pilot-compartment view currently available without the SVS image.

Because § 25.773, at the applicable amendment level, does not provide for any alternatives or considerations for a novel or unusual design feature, the FAA establishes safety requirements that assure an equivalent level of safety and effectiveness of the pilot-compartment view as intended by that rule. The purpose of these special conditions is to provide the unique pilot-compartment-view requirements for the SVS installation.

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

Applicability

As discussed above, these special conditions are applicable to the Bombardier Model BD-700-2A12 and BD-700-2A13 series airplanes. Should Bombardier apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, these special conditions would apply to that model as well.

Conclusion

This action affects only certain novel or unusual design features on one model series of airplanes. It is not a rule of general applicability.

List of Subjects in 14 CFR Part 25

Aircraft, Aviation safety, Reporting and recordkeeping requirements.

The authority citation for these special conditions is as follows:

Authority:

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

The Special Conditions

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Bombardier Model BD-700-2A12 and BD-700-2A13 series airplanes:

1. During any phase of flight in which it is to be used, the synthetic vision system (SVS) imagery on the head-up display (HUD) must not degrade flight safety or interfere with the effective use of outside visual references for required pilot tasks.

2. To avoid unacceptable interference with the safe and effective use of the pilot-compartment view, the SVS must meet the following requirements:

a. The SVS design must minimize unacceptable display characteristics or artifacts (e.g., terrain shadowing against a dark background, noise, “burlap” overlay) that obscure the desired image of the scene, impair the pilot's ability to detect and identify visual references, mask flight hazards, distract the pilot, or otherwise degrade task performance or safety.

b. Control of SVS image-display brightness must be sufficiently effective in dynamically changing background (ambient) lighting conditions to avoid pilot distraction, impairment of the pilot's ability to detect and identify visual references, masking of flight hazards, or to otherwise degrade task performance or safety. If automatic control for image brightness is not provided, it must be shown that a single, manual setting is satisfactory for the range of lighting conditions encountered during a time-critical, high-workload phase of flight (e.g., low-visibility instrument approach).

c. A readily accessible control must be provided that permits the pilot to immediately deactivate and reactivate display of the SVS image on demand, without having to remove hands from the flight controls and throttles.

d. The SVS image on the HUD must not impair the pilot's use of guidance information, or degrade the presentation and pilot awareness of essential flight information displayed on the HUD, such as alerts, airspeed, attitude, altitude and direction, approach guidance, windshear guidance, traffic-alert and collision-avoidance system-resolution advisories, or unusual-attitude recovery cues.

e. The SVS image and the HUD symbols, which are spatially referenced to the pitch scale, outside view, and image, must be scaled and aligned (i.e., conformal) to the external scene. In addition, the SVS image and the HUD symbols—when considered singly or in combination—must not be misleading, cause pilot confusion, or increase workload. Airplane attitudes or cross-wind conditions may cause certain symbols (e.g., the zero-pitch line or flight-path vector) to reach field-of-view limits, such that they cannot be positioned conformally with the image and external scene. In such cases, these symbols may be displayed but with an altered appearance that makes the pilot aware that they are no longer displayed conformally (for example, “ghosting”). The combined use of symbology and runway image may not be used for path monitoring when path symbology is no longer conformal.

f. A HUD system that displays SVS images must, if previously certified, continue to meet all of the requirements of the original approval.

3. The safety and performance of the pilot tasks associated with the use of the pilot-compartment view must not be degraded by the display of the SVS image. These tasks include the following:

a. Detection, and accurate identification and maneuvering as necessary, to avoid traffic, terrain, obstacles, and other flight hazards.

b. Accurate identification and utilization of visual references required for every task relevant to the phase of flight.

4. Appropriate limitations must be stated in the Operating Limitations section of the Airplane Flight Manual to prohibit the use of the SVS for functions that have not been found to be acceptable.

Issued in Des Moines, Washington.

Victor Wicklund, Manager, Transport Standards Branch, Policy and Innovation Division, Aircraft Certification Service.
[FR Doc. 2018-05650 Filed 3-20-18; 8:45 am] BILLING CODE 4910-13-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 25 [Docket No. FAA-2018-0201; Special Conditions No. 25-717-SC] Special Conditions: Bombardier Inc., Model BD-700-2A12 and BD-700-2A13 Series Airplanes, Flight Envelope Protection: Pitch and Roll Limiting AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final special conditions; request for comments.

SUMMARY:

These special conditions are issued for the Bombardier Inc. (Bombardier), Model BD-700-2A12 and BD-700-2A13 series airplanes. This airplane will have a novel or unusual design feature when compared to the state of technology envisioned in the applicable airworthiness standards for transport-category airplanes. This design feature is the fly-by-wire electronic flight-control system (EFCS) that will limit pitch and roll functions to prevent the airplane from attaining certain pitch attitudes and roll angles. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

DATES:

This action is effective on Bombardier Inc. on March 21, 2018. Send your comments by May 7, 2018.

ADDRESSES:

Send comments identified by docket number FAA-2018-0201 using any of the following methods:

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

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

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

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

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

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

FOR FURTHER INFORMATION CONTACT:

Joe Jacobsen, FAA, Airplane and Flight Crew Interface Section, AIR-671, Transport Standards Branch, Policy and Innovation Division, Aircraft Certification Service, 2200 South 216th Street, Des Moines, Washington 98198; telephone 206-231-3158; email [email protected].

SUPPLEMENTARY INFORMATION:

The substance of these special conditions has been published in the Federal Register for public comment in several prior instances with no substantive comments received. Therefore, the FAA has determined that prior public notice and comment are unnecessary, and finds that, for the same reason, good cause exists for adopting these special conditions upon publication in the Federal Register.

Comments Invited

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

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

Background

On May 30, 2012, Bombardier applied for an amendment to Type Certificate No. T00003NY to include the new Models BD-700-2A12 and BD-700-2A13 series airplanes. The BD-700-2A12 and BD-700-2A13 series airplanes, are derivatives of the BD-700 currently approved under Type Certificate No. T00003NY, and are business jets with a maximum certified passenger capacity of 19. The maximum takeoff weight of Model BD-700-2A12 airplane is 106,250 lbs. and 104,800 lbs. for the Model BD-700-2A13 airplane.

Type Certification Basis

Under the provisions of title 14, Code of Federal Regulations (14 CFR) 21.101, Bombardier must show that the Model BD-700-2A12 and BD-700-2A13 airplanes meet the applicable provisions of the regulations listed in Type Certificate No. T00003NY or the applicable regulations in effect on the date of application for the change except for earlier amendments as agreed upon by the FAA.

If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Model BD-700-2A12 and BD-700-2A13 airplanes because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.

In addition to the applicable airworthiness regulations and special conditions, the Bombardier Model BD-700-2A12 and BD-700-2A13 series airplanes must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34, and the noise-certification requirements of 14 CFR part 36.

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

Novel or Unusual Design Features

The Model BD-700-2A12 and BD-700-2A13 airplanes will incorporate the following novel or unusual design features:

Fly-by-wire EFCS that will limit pitch and roll functions to prevent the airplane from attaining certain pitch attitudes and roll angles greater than plus or minus 65 degrees, and introduce positive spiral stability introduced for roll angles greater than 30 degrees at speeds below VMO/MMO. This system generates the actual surface commands that provide for stability augmentation and flight control for all three airplane axes (longitudinal, lateral, and directional).

Discussion

Part 25 of title 14 of the CFR does not specifically relate to flight characteristics associated with fixed attitude limits. Bombardier proposes to implement on the airplanes pitch and roll attitude-limiting functions via the EFCS normal mode. This will prevent the airplane from attaining certain pitch attitudes and roll angles greater than plus or minus 65 degrees. In addition, positive spiral stability, introduced for roll angles greater than 30 degrees at speeds below VMO/MMO, and spiral stability characteristics, must not require excessive pilot strength to achieve bank angles up to the bank-angle limit. These special conditions are in addition to the requirements of § 25.143. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

Applicability

As discussed above, these special conditions are applicable to the Model BD-700-2A12 and BD-700-2A13 airplanes. Should Bombardier apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, these special conditions would apply to that model as well.

Conclusion

This action affects only certain novel or unusual design features on one model series of airplanes. It is not a rule of general applicability.

List of Subjects in 14 CFR Part 25

Aircraft, Aviation safety, Reporting and recordkeeping requirements.

Authority Citation Authority:

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

The Special Conditions

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Bombardier Model BD-700-2A12 and BD-700-2A13 series airplanes:

In addition to § 25.143, the following requirements apply to the electronic flight-control system (EFCS) pitch- and roll-limiting functions:

1. The pitch-limiting function must not impede normal maneuvering for pitch angles up to the maximum required for normal maneuvering, including a normal, all-engines-operating takeoff, plus a suitable margin to allow for satisfactory speed control.

2. The pitch- and roll-limiting functions must not restrict or prevent attaining pitch attitudes necessary for emergency maneuvering, or roll angles up to 65 degrees. Spiral stability, which is introduced above 30 degrees of roll angle, must not require excessive pilot strength to achieve these roll angles. Other protections, which further limit the roll capability under certain extreme angle-of-attack, attitude, or high-speed conditions, are acceptable, as long as they allow at least 45 degrees of roll capability.

3. A lower limit of roll is acceptable beyond the overspeed warning if it is possible to recover the airplane to the normal flight envelope without undue difficulty or delay.

Issued in Des Moines, Washington.

Victor Wicklund, Manager, Transport Standards Branch, Policy and Innovation Division, Aircraft Certification Service.
[FR Doc. 2018-05651 Filed 3-20-18; 8:45 am] BILLING CODE 4910-13-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 25 [Docket No. FAA-2018-0228; Special Conditions No. 25-719-SC] Special Conditions: Bombardier Inc. BD-700-2A12 and BD-700-2A13 Airplane; Flight-Envelope Protection: General Limiting Requirements AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final special conditions; request for comments.

SUMMARY:

These special conditions are issued for the Bombardier Inc. (Bombardier) Model BD-700-2A12 and BD-700-2A13 airplanes. These airplanes will have a novel or unusual design feature when compared to the state of technology envisioned in the airworthiness standards for transport-category airplanes. This design feature is a new control architecture and a full digital-flight-control system that provides comprehensive flight-envelope protections. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

DATES:

This action is effective on Bombardier Inc. on March 21, 2018. Send your comments by May 7, 2018.

ADDRESSES:

Send comments identified by docket number FAA-2018-0228 using any of the following methods:

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

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

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

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

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

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

FOR FURTHER INFORMATION CONTACT:

Joe Jacobsen, FAA, Airplane and Flight Crew Interface Section, AIR-671, Transport Standards Branch, Policy and Innovation Division, Aircraft Certification Service, 2200 S. 216th St., Des Moines, Washington 98198-6547; telephone 206-231-3158; facsimile 425-231-3398.

SUPPLEMENTARY INFORMATION:

The substance of these special conditions has been published in the Federal Register for public comment in several prior instances with no substantive comments received. Therefore, the FAA has determined that prior public notice and comment are unnecessary, and finds that, for the same reason, good cause exists for adopting these special conditions upon publication in the Federal Register.

Comments Invited

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

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

Background

On May 30, 2012, Bombardier applied for an amendment to Type Certificate No. T00003NY to include the new BD-700-2A12 and BD-700-2A13 airplanes. The Model BD-700-2A12 and BD-700-2A13 airplanes, which are derivatives of the BD-700 series airplane currently approved under Type Certificate No. T00003NY. The Model BD-700-2A12 and BD-700-2A13 airplanes augment the existing BD-700 family of airplanes and are marketed as the Bombardier Global 7000 and Global 8000 airplanes, respectively. These are business jets with a maximum certified passenger capacity of 19. The Model BD-700-2A12 and BD-700-2A13 airplanes will have a maximum takeoff weight of 106,250 lbs. and 104,800 lbs., respectively.

Type Certification Basis

Under the provisions of title 14, Code of Federal Regulations (14 CFR) 21.101, Bombardier must show that the Model BD-700-2A12 and BD-700-2A13 airplanes meet the applicable provisions of the regulations listed in Type Certificate No. T00003NY or the applicable regulations in effect on the date of application for the change except for earlier amendments as agreed upon by the FAA.

If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Model BD-700-2A12 and BD-700-2A13 airplanes because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.

In addition to the applicable airworthiness regulations and special conditions, the Model BD-700-2A12 and BD-700-2A13 airplanes must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34 and the noise-certification requirements of 14 CFR part 36.

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

Novel or Unusual Design Features

The Bombardier Model BD-700-2A12 and BD-700-2A13 airplanes will incorporate the following novel or unusual design feature: New control architecture and a full digital-flight-control system that provides comprehensive flight-envelope protections.

Discussion

The applicable airworthiness regulation is 14 CFR 25.143. The purpose of §  25.143 is to verify that any operational maneuvers conducted within the operational envelope can be accomplished smoothly with average piloting skill and without exceeding any structural limits. The pilot should be able to predict the airplane response to any control input. During the course of the flight test program, the pilot determines compliance with §  25.143 primarily through qualitative methods. During flight test, the pilot should evaluate all of the following:

• The interface between each protection function;

• Transitions from one mode to another;

• Airplane response to intentional dynamic maneuvering, whenever applicable, through dedicated maneuvers;

• General controllability assessment;

• High speed characteristics; and

• High angle-of-attack.

Section 25.143, however, does not adequately ensure that the novel or unusual features of the BD-700 series airplanes will have a level of safety equivalent to that of existing standards. These special conditions are therefore required to accommodate the flight envelope limiting systems in the BD-700 series airplanes. The general limiting requirements are necessary to ensure a smooth transition from normal flight to the protection mode and adequate maneuver capability. The general limiting requirements also ensure that the structural limits of the airplane are not exceeded. Furthermore, failure of the flight-envelope protection feature must not create hazardous flight conditions. The additional safety standards in these special conditions will ensure a level of safety equivalent to that of existing standards.

Applicability

As discussed above, these special conditions are applicable to the Bombardier Model BD-700-2A12 and BD-700-2A13 airplanes. Should Bombardier apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, these special conditions would apply to that model as well.

Conclusion

This action affects only certain novel or unusual design features on Bombardier Model BD-700-2A12 and BD-700-2A13 airplanes. It is not a rule of general applicability.

List of Subjects in 14 CFR Part 25

Aircraft, Aviation safety, Reporting and recordkeeping requirements.

The authority citation for these special conditions is as follows:

Authority:

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

The Special Conditions

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Bombardier Model BD-700-2A12 and BD-700-2A13 airplanes.

General Limiting Requirements

a. Onset characteristics of each envelope protection feature must be smooth, appropriate to the phase of flight and type of maneuver, and not in conflict with the ability of the pilot to satisfactorily change airplane flight path, speed, or attitude as needed.

b. Limit values of protected flight parameters (and if applicable, associated warning thresholds) must be compatible with the following:

i. Airplane structural limits,

ii. Required safe and controllable maneuvering of the airplane, and

iii. Margins to critical conditions. Unsafe flight characteristics/conditions must not result if dynamic maneuvering, airframe and system tolerances (both manufacturing and in-service), and non-steady atmospheric conditions, in any appropriate combination and phase of flight, can produce a limited flight parameter beyond the nominal design-limit value.

c. The airplane must be responsive to intentional dynamic maneuvering to within a suitable range of the parameter limit. Dynamic characteristics such as damping and overshoot must also be appropriate for the flight maneuver and limit parameter in question.

d. When simultaneous envelope limiting is engaged, adverse coupling or adverse priority must not result.

Failure States

a. Electronic flight-control-system failures (including sensors) must not result in a condition where a parameter is limited to such a reduced value that safe and controllable maneuvering is no longer available.

b. The crew must be alerted by suitable means if any change in envelope limiting or maneuverability is produced by single or multiple failures of the electronic flight-control system not shown to be extremely improbable.

Issued in Des Moines, Washington, on March 15, 2018. Victor Wicklund, Manager, Transport Standards Branch, Policy and Innovation Division, Aircraft Certification Service.
[FR Doc. 2018-05662 Filed 3-20-18; 8:45 am] BILLING CODE 4910-13-P
CONSUMER PRODUCT SAFETY COMMISSION 16 CFR Chapter II [Docket No. CPSC-2016-2019] Labeling of Certain Household Products Containing Methylene Chloride; Supplemental Guidance AGENCY:

Consumer Product Safety Commission.

ACTION:

Guidance.

SUMMARY:

The Halogenated Solvents Industry Alliance petitioned the Consumer Product Safety Commission to amend its 1987 policy statement regarding the labeling of certain products containing methylene chloride to address acute hazards from inhaling methylene chloride vapors in addition to the chronic hazards addressed in the policy statement. In this document, the Commission updates the 1987 policy statement to provide guidance regarding the labeling to warn of acute hazards associated with paint strippers containing methylene chloride.

DATES:

This guidance document becomes applicable on March 21, 2018.

FOR FURTHER INFORMATION CONTACT:

Carol Afflerbach, Office of Compliance and Field Operations, U.S. Consumer Product Safety Commission; 4330 East-West Highway, Bethesda, MD 20814; email: [email protected]; telephone: (301) 504-7529.

SUPPLEMENTARY INFORMATION: I. Background

In 1987, the U.S. Consumer Product Safety Commission (CPSC or Commission) issued a Statement of Interpretation and Enforcement Policy regarding the labeling of certain household products containing methylene chloride (1987 Statement), 52 FR 34698 (Sept. 14, 1987). The 1987 Statement noted that the Commission considers certain household products containing methylene chloride (DCM) to be “hazardous substances” under the FHSA and may pose a risk of carcinogenicity. The 1987 Statement identified several categories of products that contained methylene chloride that could expose consumers to significant amounts of methylene chloride vapor, and were thus hazardous substances. Paint strippers were one of these product categories. The 1987 Statement advised manufacturers of the FHSA's labeling requirements and provided guidance for labeling those products, including paint strippers, to warn of the cancer risk from inhaling methylene chloride vapor.

On July 7, 2016, the Halogenated Solvents Industry Alliance (HSIA or petitioner) petitioned the CPSC to amend its 1987 Statement to recognize the acute hazard posed by using household products containing DCM in enclosed spaces with inadequate ventilation. The petitioner stated that using household products containing DCM in bathrooms, or other enclosed spaces, with inadequate ventilation can be dangerous. When consumers use methylene chloride to strip coatings from bathtubs, they often spray or pour a bathtub stripping product into the basin of the bathtub and then brush the product onto the tub surface. Many of these stripping products contain substantial amounts of methylene chloride. According to the petitioner, methylene chloride is a volatile organic compound that will evaporate quickly when sprayed, brushed, or poured, so that its vapor can quickly build up in small spaces. The petitioner stated that DCM has a high vapor pressure, which causes vapors to collect in the bottom of a bathtub and in a consumer's breathing zone when working in a bathtub. This situation can create dangerously high concentrations of DCM, and in some cases, replace the breathable air. The petitioner asked the Commission to expand the cautionary labeling guidance so that it also warns of the threat of asphyxiation if DCM-based paint strippers are used in an enclosed space.

CPSC staff prepared a briefing package in response to the petition and submitted the package to the Commission on May 26, 2017. On June 2, 2017, the Commission voted unanimously (5-0) to grant the petition (HP 16-1) and directed CPSC staff to draft a policy statement that addresses labeling for acute hazards from inhaling methylene chloride vapors from paint strippers.

II. EPA Rulemaking

The EPA has initiated rulemaking under section 6(a) of the Toxic Substances Control Act (TSCA) to address risks posed by DCM when used in paint and coating removal products. Specifically, EPA has issued a proposed rule that provides an assessment of the health hazards posed by DCM and that proposes to determine that DCM in these products presents an unreasonable risk of injury to health. Based on this determination, and after considering regulatory alternatives, EPA proposed to prohibit the manufacture (including import), processing, and distribution in commerce of DCM for all consumer and most commercial paint removal products, and to prohibit commercial use. 82 FR 7464 (Jan. 19, 2017). EPA's rulemaking would address both consumer and worker exposures to DCM used for paint and coating removal. While developing its rulemaking, EPA consulted with CPSC staff. Under EPA's rulemaking (if finalized as proposed), paint and coating removal products containing DCM would no longer be on the market for consumers or commercial workers, except in limited circumstances. To date, EPA has not finalized its rulemaking. Accordingly, the Commission believes that updating CPSC's 1987 Statement would provide more immediate guidance and clarity to industry and consumers regarding the acute hazards associated with using DCM-containing paint strippers while those products remain on the market. By updating the 1987 Statement, we do not suggest that labeling will address all hazards EPA identified in its proposed rulemaking.

III. Federal Hazardous Substances Act (FHSA) Labeling Requirements

The CPSC regulates hazardous household substances under the FHSA, 15 U.S.C. 1261-1276. Section 2(p)(1) of the FHSA, 15 U.S.C. 1261(p)(1), requires that a hazardous substance bear certain cautionary statements on its label in a prominent and conspicuous manner so that consumers can safely use and store the product in and around the household. A product is a “hazardous substance” under the FHSA if the substance or a mixture of substances is toxic, corrosive, an irritant, a strong sensitizer, is flammable or combustible, or generates pressure through decomposition, heat, or other means, and if the substance or mixture of substances may cause substantial personal injury or substantial illness during customary or reasonably foreseeable handling or use, including reasonably foreseeable ingestion by children.

The FHSA defines “toxic” as “any substance . . . which has the capacity to produce personal injury or illness to man through ingestion, inhalation, or absorption through any body surface.” 15 U.S.C. 1261(g). The Commission has issued a regulation at 16 CFR 1500.3(c), which supplements the statutory definition of “toxic” based on the outcome of any of the approved test methods described in CPSC's animal testing policy set forth at 16 CFR 1500.232. This definition also includes chronic toxicity and states that a substance is toxic if it presents a chronic hazard, if it is a known or probable human carcinogen, neurotoxin, or developmental or reproductive toxicant.

Under the FHSA, an article that is intended, or packaged in a form suitable for household use and meets the definition of “hazardous substance” is a “misbranded hazardous substance” unless its packaging or labeling warns of the hazard in accordance with the requirements of section 2(p). 15 U.S.C. 1261(p). Thus, cautionary statements are required for household substances meeting the definition of “hazardous substance” under the FHSA, whether the hazard is acute or chronic.

IV. Staff's Review of Toxicity and Incident Data A. Acute Toxicity Data

CPSC staff reviewed relevant data to evaluate the acute toxicity risk to consumers from using DCM-containing products in residential settings. Staff's petition briefing package provided detailed information about staff's review. (https://www.cpsc.gov/s3fs-public/RCA%20-%20Petition%20HP%2016-1%20Labeling%20of%20Household%20Products%20Containing%20Methylene%20Chloride%20082316.pdf).

DCM is a highly volatile, colorless, organic substance used as a solvent in a variety of consumer and commercial products, including paint strippers, adhesives and adhesive removers, spray paint, spray shoe polish, and cleaners. DCM's high volatility makes inhalation its primary route of exposure.1 The acute toxicity risks for consumers using DCM-based products in residential settings range from upper respiratory, ocular and dermal irritation, to severe effects, such as respiratory suppression, loss of consciousness, and death.2 Both consumer and worker deaths have been attributed to scenarios where the individuals were working alone in an enclosed and/or poorly ventilated space (e.g., bathrooms, basements, sheds) without respiratory protection. The toxic effects are from DCM as well as carbon monoxide (CO), which is a metabolite of DCM. Bystanders are also at risk of acute health effects while in the home when paint strippers and similar DCM-based products are being applied.3

1 ATSDR. 2000a. TOXICOLOGICAL PROFILE FOR METHYLENE CHLORIDE. 3.13; CDC. 2012. Fatal Exposure to Methylene Chloride Among Bathtub Refinishers—United States, 2000-2011. MMWR. 61:4; EPA. 2014. TSCA Work Plan Chemical Risk Assessment Methylene Chloride: Paint Stripping Use. EPA Document #740-R1-4003. August 2014:279.

2 EPA. 2009. INTERIM ACUTE EXPOSURE GUIDELINE LEVELS (AEGLs) for METHYLENE CHLORIDE. Interim 1: 12/2008:110.

3 EPA, 2014.

The primary route of exposure for DCM is inhalation; however, DCM can readily be absorbed through dermal (skin) contact as well. To protect against skin absorption, butyl rubber or polyvinyl alcohol gloves must be worn because latex gloves will not protect against skin absorption.4 DCM should only be used in a well-ventilated area. In 2013, CPSC staff developed a pamphlet concerning paint strippers which provides guidance to consumers on ventilation practices when they use DCM-containing paint strippers. The CPSC pamphlet recommends that paint-stripping work be done professionally if the work area has low-ventilation conditions.5 The U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) indicates in its hazard alerts that bathroom fans and/or open windows do not provide adequate ventilation when using these paint strippers in an enclosed space, such as a bathroom.6 Inhalation exposure to as little as six ounces is sufficient to cause death.7 While working with DCM, consumers and workers must use respiratory protective equipment, such as tight-fitting, full-face, self-contained supplied-air respirators or gas masks with vapor canisters, to reduce exposure.8 Because DCM vapors are heavier than air, they can remain in the work area and become very hazardous to users. For example, if using a DCM-containing paint stripper to renovate a bathtub, inhalation exposure could occur due to the vapors remaining in the bathtub after application.9 This exposure may lead to death if proper precautions, such as protective equipment and ventilation, are not used.10 To obtain adequate ventilation, use a qualified occupational health and safety specialist to assist in designing and installing local exhaust ventilation to effectively control vapors to below applicable personal exposure levels.

4 CDC, 2012. CPSC. 1987b. Statement of Policy for Methylene Chloride. FindLaw; IRIS, 2011.

5 CPSC, 2013. What You Should Know About Using Paint Strippers. 423.

6 OSHA, 2013. Hazard Alert. “Methylene Chloride Hazards for Bathtub Refinishers”; OSHA, 2016. FATAL Facts, Ho. 13-2016, “Lethal Exposure to Methylene Chloride during Bathtub Refinishing.”

7 OSHA, 2013.

8 OSHA DCM regulations, 29 CFR 1910.1052, require employers to supply employees with respirators, and require employees to use the respirator when exposures are likely to exceed the regulatory limits.

9 CDC, 2012.

10 ATSDR, 2000b; CDC, 2012; EPA, 2014.

B. Incident Data

Staff searched CPSC databases for information about incidents reported to CPSC associated with DCM-based paint strippers and other household products containing DCM. Staff also searched the Consumer Product Safety Risk Management System (CPSRMS) and the National Electronic Injury Surveillance System (NEISS).

Between January 1, 2000 and November 30, 2017, there were 30 incidents associated with household products containing or likely containing DCM reported to CPSC by December 5, 2017. The majority of the incidents (28) were associated with paint strippers; one incident was associated with an unspecified solvent; and one incident was associated with a sealant. The incident reports mentioned fumes, inhalations, skin and lung irritation, leaking, and spilling. Based on information provided by consumers, 17 incidents were associated with DCM-based household products (the incidents either mentioned DCM or provided the product SKU# that allowed CPSC staff to identify a DCM-based product). Thirteen incident reports named paint strippers containing DCM.11 CPSC staff determined that these incidents are likely associated with DCM-based paint strippers. Among the 30 reported incidents, there were 6 fatalities, 1 hospital admission, 1 emergency department visit, 15 injuries/adverse health problems, 4 non-injury incidents, and 3 incidents without enough information to determine whether an injury occurred.

11 California Department of Public Health, “Guide to choosing paint stripping products: Safety considerations” http://www.cdph.ca.gov/programs/hesis/Documents/Paint-Removal-Methods.pdf.

CPSC staff is aware of six deaths involving DCM-based products 12 that occurred between January 1, 2000, and November 30, 2017. The victims were males between 45 and 80 years old. In most of the cases (5 deaths), CPSC staff was not able determine whether the incidents were associated with a consumer or a worker. These fatal incidents are described in more detail in the petition briefing package. The Commission has since learned of an incident that occurred in October 2017, in Charleston, SC, involving a paint stripper, which resulted in death from acute DCM and methanol toxicity. This case is still under investigation to determine whether it is a consumer or worker incident.

12 These DCM-based products included four paint removers, one unspecified solvent, and one sealer.

In 2002, a 64-year-old male fell into a tank of paint stripper at work. The paint stripper contained DCM. The cause of death was recorded as a cardiac arrest and respiratory toxicity. Although this case is a work-related incident, and therefore, not within CPSC's jurisdiction, the case, nonetheless, indicates the potential hazard of the product. Another incident that occurred in 2002 involved a 52-year-old male. He died as a consequence of inhaling fumes from a DCM-based solvent in a bathroom. In 2007, a 45-year-old male died after inhaling paint remover fumes during a bathroom renovation. The cause of death was determined to be asphyxia due to inhaling DCM. In 2013, an 80-year-old male died after inhaling DCM fumes while using a paint stripper in a shed. Also reported in 2013, a 50-year-old male died after inhaling DCM fumes while stripping an apartment's bathroom. In 2016, a 48-year-old male was sealing bathroom shower tiles with a DCM-based sealer in a bathroom. He died as a consequence of asphyxiation from exposure to toxic DCM fumes.

V. Labeling Paint Strippers Containing Methylene Chloride

This section contains guidance on minimum recommendations for how the acute and chronic health risks of DCM use could be conveyed in the Principal Display Panel (PDP) and the back or other panel to effectively inform consumers and motivate their safe use of paint stripping products containing DCM.

Currently, there are few suitable alternatives to DCM, and protective measures, such as moving products outdoors to apply the stripper can be inconvenient. Providing warning information does not prevent consumer exposure to hazards, but instead, relies upon persuading consumers to alter their behavior in some way to avoid the hazard. In addition, warnings research demonstrates that even small inconveniences to the consumer can have a substantial negative effect on behavioral compliance with a warning.13 Therefore, it is imperative that warning labels are formatted and contain information so that they are likely to be noticed, read, understood, and heeded.

13 Ayres T.J., Gross M.M., Wood C.T., Horst D.P, Beyer R.R., & Robinson J.N. (1989). What is a Warning and When Will it Work? Proceedings of the Human Factors Society Annual Meeting, 33. 426-430; Riley, D.M. (2006). Beliefs, Attitudes, and Motivation. In M.S. Wogalter (Ed.), Handbook of Warnings (pp. 289-300). Mahwah, NJ: Lawrence Erlbaum Associates.

A. General Principles of Warning Labels 1. Format of Warning Label

Research has shown that warning information is more effective when it is conspicuous.14 Repetition with variation and consistent reinforcement can increase the effectiveness of messages.15 Strategic use of capitalization, bolding, underlining, and other forms of highlighting information can steer the consumer's attention to the most pertinent information by making it stand out from the surrounding text.16

14 Wogalter, M.S., DeJoy, D., & Laughery, K.R. (Eds.). (1999). Warnings and risk communication. Philadelphia, PA: Taylor & Francis.

15 Food and Drug Administration. (2011). Communicating risks and benefits: An evidence-based user's guide (DHHS). B. Fischhoff, N.T. Brewer & J.S.Downs (Eds.).

16 Wogalter, M.S., Conzola, V.C., & Smith-Jackson, T.L. (2002). Research-based guidelines for warning design and evaluation. Applied Ergonomics, 33, 219-230.

2. Order of Safety Information

Experts in the communication of safety information agree that associated hazards and symptoms should be mentioned from most-to-least severe.17 Research indicates that many consumers will only read as much of the safety information as they think they have to read and only if the rewards meet or exceed the efforts.18 If lesser hazards and symptoms of overexposure to DCM precede more severe hazards and symptoms on the label, then the consumer might stop reading the label before reaching the more severe hazards and symptoms. Mentioning lethality of vapor inhalation at the start raises the likelihood that the consumer is informed of the possibility of death. By highlighting the pertinent information and beginning with the risk of death, the warning information is more apt to prove to the consumer that the warning contains useful information, and is, thereby, more likely to be read in its entirety. Furthermore, the Commission believes that if lesser symptoms of overexposure were to precede more severe symptoms on the warning labels, then consumers may expect lesser symptoms to happen before more severe symptoms present, which may not be the case. For example, if consumers read that DCM inhalation can cause nausea and dizziness, before reading that DCM can cause death, consumers may infer, incorrectly, that they will not be killed by the product without first exhibiting nausea or dizziness. Presenting effects of overexposure from most to least severe, along with stating that symptoms may not be noticeable, helps to dispel the false expectation that the way the consumer is using the DCM-containing paint stripper is safe, or that the consumer can use it in an unsafe manner, until s/he notices lesser symptoms of overexposure.

17 Wogalter et al., 1999.

18 Robinson, 2009; Schriver, 1997.

3. Warning Label Comprehension

It is important for warning information not only to be noticed and read, but also understood. Warnings should be free of ambiguity to better ensure that the intended message is received and not easily misinterpreted.19 For example, the phrase “adequate ventilation” is ambiguous and can encourage inappropriate methods of circumvention; from “adequate ventilation” the consumer may infer that any addition of ventilation to the application area, such as opening a window, will be sufficient to make the product safe for indoor use. Such an inference can lead to overexposure to DCM-containing vapors, potentially resulting in death. Similarly, unclear wording, such as, “use in enclosed areas may kill you,” carries the risk of being misread as simply, “use in enclosed areas,” because the word “use” in this context can be read as a verb, such as “use this product,” rather than read as a noun, such as “use of this product,” and because the consumer may stop reading the statement before reaching “may kill you.”

19 Wogalter et al., 1999.

To increase the likelihood of consumers heeding a warning despite inconveniences imposed by necessary precautions, the phrasing of warning information should be vivid and relatable.20 The Commission recommends using the phrase “can kill you,” as opposed to wording like: “may cause death.” These phrases have the same denotation; however, the impact on the reader can be different in meaningful ways. The Commission believes lethality is more salient with the statement “can kill you” because it is more personalized, directing the hazard toward the user, rather than as a possibility for users, in general. Evidence suggests that emotional communications, especially those that are fear-based, can be used to increase risk perceptions and change behaviors; and stronger fear-arousing conditions may lead to greater message acceptance.21

20 Murray-Johnson, L., & Witte, K. (2003). Looking toward the future: Health message design strategies. In T.L. Thompson, A. Dorsey, K.I. Miller, & R. Parrot (Eds.), Handbook of health communication (pp.473-495). New York City, NY: Routledge.

21 Food and Drug Administration, 2011.

4. Effect of Consumer Experience With Product

Warning information can be formatted in a way that is noticeable, more likely to be read, understood, and motivating, and yet remain unheeded. Research indicates that consumers who are familiar or experienced with a product are less likely to search for and comply with warnings.22 Paint strippers containing DCM have been around for decades, and incident data show that these products are sometimes applied indoors, such as in bathrooms, basements, and closets. The Commission believes that it is foreseeable that some consumers will continue to use these products indoors, despite warnings against using them in enclosed areas because of past incident-free experience with indoor use of stripping products containing DCM. Therefore, the Commission suggests including precautions for indoor use as well. However, because providing precautions for indoor use may mislead some consumers to believe it is safe to use DCM-based products indoors, the Commission recommends that the language and format of the safety information clarify that use in enclosed areas is dangerous, even with precautions, and should be avoided, if possible. The examples provided specify that indoor use is dangerous, and they employ repetition and capitalization to reinforce the point that paint-stripping products containing DCM should be used outdoors in open air areas.

22 Wogalter et al., 1999.

B. Principal Display Panel (PDP) Minimum Labeling Recommendations

This section provides recommendations for labeling paint stripping products that contain methylene chloride. The following minimum labeling recommendations for the PDP meet the requirements of the FHSA. There are wide variations in the concentrations of methylene chloride in paint strippers. The precise labeling used may vary based on DCM concentration, anticipated duration of exposure, and other associated hazards.

The labels for all products subject to the FHSA are expected to comply with the requirements for prominence, placement, and conspicuousness of labeling required by section 2(p)(1) of the FHSA. The FHSA provides that required labeling statements may be placed on the PDP, or front panel, on the immediate container, and, if appropriate, on any other container or wrapper. The appropriate signal word (i.e., “DANGER,” “WARNING,” or “CAUTION) and the statement of principal hazard[s] are required to be on the PDP. The other items of required labeling may be placed on some other display panel on the container, provided that the front panel contains the statement: “Read carefully other cautions on the [other display] panel,” or its practical equivalent.

• The Commission recommends “WARNING” as the signal word for the label. Given cases of lethal exposure to DCM in household products, the Commission considered the signal word “DANGER”; however, the current DCM toxicity data do not meet the FHSA definition of “highly toxic,” which is required for use of the the signal word “DANGER.”

• When providing affirmative statements of all principal hazards, the Commission recommends stating: “INHALATION OF VAPOR VERY HARMFUL,” followed by: “VAPOR CAN KILL YOU IN ENCLOSED AREAS.”

Example From 1987 Statement of Cautionary Labeling To Be Included on the PDP 23

23 Given the previously limited data on the acute toxicity of overexposure to DCM, the Commission believed this labeling to meet, and in certain respects exceed, the minimum requirements of section 2(p)(1) of the FHSA.

In 1987, the Steering Committee for Methylene Chloride, a group of industry and consumer-interest representatives working with Commission staff, recommended the following labeling for the PDP for products, such as some paint strippers that contain high percentages of DCM:

CAUTION: Vapor Harmful, Read Other Cautions and HEALTH HAZARD INFORMATION on Back Panel

In the 1987 Statement, the Commission presented this labeling for the PDP as an example that would meet or exceed the minimum requirements of the FHSA.

Updated Example of Cautionary Labeling

In recognition of updated data on acute health risks of DCM use, the Commission recommends replacing the 1987 example of cautionary labeling to be included on the PDP with the information and format below:

WARNING: INHALATION OF VAPOR VERY HARMFUL VAPOR CAN KILL YOU IN ENCLOSED AREAS EYE AND SKIN IRRITANT. Read All Cautions on Back/Side Panel.

The format in the updated PDP example uses capital letters, repetition, and personalized language to draw attention to the most severe hazard: Death from inhalation of vapor in enclosed areas. The repetition of “vapor” between the first and second lines aids in communicating the source and medium by which the hazard presents itself. The inclusion of “vapor very harmful” satisfies the declaration of both the acute and the chronic hazard. When a chronic hazard exists, the additional risk of cancer should be included on the back or other panel, as appropriate under the FHSA. The last line directs the consumer to the back or other panel, which provides detailed precautionary information.

C. Back or Other Panel 1. Back or Other Panel Minimum Labeling Recommendations

The Commission recommends the following information and formatting for the back or other panel of paint stripping products containing DCM. These recommendations cover both acute and chronic hazards. Again, the statements may vary based on the concentration of DCM, anticipated duration of exposure, and other associated hazards.

• The Commission recommends use of “WARNING” as the signal word for the label.

• The Commission recommends beginning the precautionary information by stating, in all capital letters, the lethality of vapor inhalation and not to use the product in enclosed areas.

• The FHSA requires disclosure of all principal hazards. The Commission recommends disclosing the acute and chronic hazards from most-to-least severe. Similarly, when symptoms are mentioned, the Commission recommends it would be most effective to state symptoms from most-to-least severe.

• Because overexposure to DCM may be sudden and can inhibit the user's capability to notice and react to the effects, the Commission recommends indicating in all capital letters that symptoms may not be noticeable.

• The Commission recommends separating precautionary statements by bullet points, if paragraph formatting is used, to aid visual distinction between precautions.24

24 See the “Recommended Language Approved by Ad Hoc Task Group, Revision C” document dated November 10, 2017, published in the “Committee Documents” section of the Committee F15 ASTM website.

• The Commission believes it will be helpful to provide specific examples of spaces in which the product should not be used, beginning with bathrooms, basements, and closets because these locations are particularly dangerous and have been cited in incident data.

• When indicating precautions to be taken, the Commission recommends stating in all capital letters that the product should be used outdoors in an open-air area.

• The Commission recommends including precautionary information for indoor use, accompanied by language stating that indoor use is dangerous even when precautions are taken.

• The Commission recommends prohibiting foreseeable inappropriate actions, such as use of a dust mask to provide protection against vapors.25

25 A dust mask does not provide effective protection against overexposure to vapors containing DCM.

• When providing instructions for first-aid, the Commission recommends listing in order of the likelihood of occurrence, the types of exposures and placing each exposure route on a separate line to aid DCM users in an urgent situation.

2. Example of Updated Safety Information To Be Included on the Back or Other Panel

In recognition of updated data on acute health risks of DCM use, the Commission recommends replacing the 1987 example of labeling to be included on the back or other panel, with the information and format below:

WARNING Contains Methylene Chloride. INHALATION OF VAPOR CAN KILL YOU. DO NOT USE IN ENCLOSED AREAS, such as bathrooms, basements, or closets. SYMPTOMS MAY NOT BE NOTICEABLE.  Avoid contact with eyes or skin, as severe irritation can occur.  Methylene Chloride may cause cancer.  The risk to your health depends on the level and duration of exposure.  Keep out of the reach of children.

SAFETY DIRECTIONS:  USE OUTDOORS IN AN OPEN AIR AREA. It is dangerous to use this product indoors.  If you must use indoors, cross-ventilate work area by opening all windows and doors and circulating fresh air through the work area to reduce vapor accumulation.  Always wear chemical-splash goggles and chemical-resistant gloves when handling this product.  A dust mask does not provide protection against the vapors.

FIRST-AID:

• INHALATION: First move person to fresh air. If not breathing, give artificial respiration. Call 911, or poison control center, or emergency room.

• EYE EXPOSURE: Immediately flush affected eye(s) with water. Call 911, or poison control center, or emergency room, as soon as possible.

• SKIN EXPOSURE: Immediately wash skin with soap and water. Avoid spreading material on unaffected skin. Remove contaminated clothing and shoes, and thoroughly clean before reuse. Contact medical professional for advice.

• IF SWALLOWED: IMMEDIATELY call 911, or poison control center, or emergency room. Do NOT induce vomiting, unless directed to do so by medical personnel. Never give anything by mouth to an unconscious person.

In the preceding updated back or other panel example, the most important safety information is capitalized to attract the consumer's attention; i.e., if the consumer only reads the capitalized words, his/her focus is drawn to the following information: Inhaling the vapor can be deadly; the product should not be used in enclosed areas; symptoms of overexposure may go unnoticed; and the product should be used outdoors. Bullet points are used to aid visual distinctions among precautions. The presentation of the hazards from most-to-least severe, coupled with the statement that symptoms may go unnoticed, helps to dismiss the false expectation that the consumer can wait for noticeable symptoms before taking appropriate precautions or escaping from a potentially lethal-use scenario. Steps for inhibiting vapor accumulation indoors are included in the back or other panel, subsequent to reiteration that household products containing DCM should be used outdoors and that indoor use is dangerous. The instructions for first-aid are adapted from OSHA's Chemical Database.26 The instructions are listed in order of the likelihood of exposure route per incident data. Types of exposure are capitalized and addressed on separate lines for ease of access to the information in a hurried state. The company's toll-free number is provided for consumers to seek more information about appropriate use and first-aid.

26 OSHA Occupational Chemical Database for Methylene Chloride: https://www.osha.gov/chemicaldata/chemResult.html?recNo=572, accessed on December 8, 2017.

VI. Implementation of This Guidance

In this update of the 1987 Statement, the Commission provides guidance to industry on determining the appropriate cautionary labeling for paint-stripping products that contain DCM. This guidance also provides examples of statements to convey the hazards associated with the product. This guidance does not set forth language for particular products; nor does it specify placement of this language. However, this document does provide guidance on the factors to consider in developing the cautionary statements, and it gives examples that satisfy the FHSA. The level of hazard varies, based on the formulation of the product, the concentration of DCM, and the customary and reasonably foreseeable use of the product. If a paint stripper containing methylene chloride does not appear to be labeled appropriately, Commission staff will provide guidance to firms and assist firms with labeling their products.

Under the FHSA, manufacturers are responsible for determining whether their methylene chloride-containing products meet the definition of a “hazardous substance,” and bear the appropriate cautionary statements. This determination is based on the concentration of methylene chloride, the use of the product, and whether the product presents a significant exposure to methylene chloride vapor with customary and reasonably foreseeable use. This update of the 1987 Statement provides guidance to manufacturers who must determine the appropriate labeling for their paint stripper products that contain methylene chloride. In any enforcement action, Commission staff would consider on a case-by-case basis whether the product's labeling meets the requirements of the FHSA.

VII. Effect on State and Local Laws

In general, the preemption language in section 18(b)(1)(A) of the FHSA provides that if a hazardous substance or its packaging is subject to a cautionary labeling requirement under the FHSA designed to protect against a risk of illness or injury associated with the substance, no State or political subdivision of a State may establish or continue in effect a cautionary labeling requirement applicable to a hazardous substance or packaging that is designed to protect against the same risk of illness or injury, unless the cautionary labeling requirement is identical to the labeling requirement under the FHSA. 15 U.S.C. 1261n. As mentioned, this document provides guidance to industry. This guidance does not have binding legal force, does not constitute a rule, and thus, does not have preemptive effect. However, the underlying duty to label a hazardous household product arises from the FHSA. This underlying statutory obligation preempts state and local non-identical cautionary labeling requirements that are designed to protect against the same risk of injury or illness.

Alberta E. Mills, Secretary, Consumer Product Safety Commission.
[FR Doc. 2018-05580 Filed 3-20-18; 8:45 am] BILLING CODE 6355-01-P
DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 4 [Docket No. FDA-2008-N-0424] Immediately in Effect Guidance for Industry; Compliance Policy for Combination Product Postmarketing Safety Reporting; Availability AGENCY:

Food and Drug Administration, HHS.

ACTION:

Notification of availability.

SUMMARY:

The Food and Drug Administration (FDA or we) is announcing the availability of an immediately in effect guidance for industry entitled “Compliance Policy for Combination Product Postmarketing Safety Reporting.” This guidance describes FDA's compliance policy for combination product applicants and constituent part applicants and activities under FDA regulations that addresses combination product postmarketing safety reporting. This guidance is immediately in effect, but it remains subject to comment in accordance with the Agency's good guidance practices.

DATES:

The announcement of the guidance is published in the Federal Register on March 21, 2018.

ADDRESSES:

You may submit either electronic or written comments on Agency guidances at any time as follows:

Electronic Submissions

Submit electronic comments in the following way:

Federal eRulemaking Portal: https://www.regulations.gov. Follow the instructions for submitting comments. Comments submitted electronically, including attachments, to https://www.regulations.gov will be posted to the docket unchanged. Because your comment will be made public, you are solely responsible for ensuring that your comment does not include any confidential information that you or a third party may not wish to be posted, such as medical information, your or anyone else's Social Security number, or confidential business information, such as a manufacturing process. Please note that if you include your name, contact information, or other information that identifies you in the body of your comments, that information will be posted on https://www.regulations.gov.

• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).

Written/Paper Submissions

Submit written/paper submissions as follows:

Mail/Hand delivery/Courier (for written/paper submissions): Dockets Management Staff (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”

Instructions: All submissions received must include the Docket No. FDA-2008-N-0424 for “Compliance Policy for Combination Product Postmarketing Safety Reporting.” Received comments will be placed in the docket and, except for those submitted as “Confidential Submissions,” publicly viewable at https://www.regulations.gov or at the Dockets Management Staff between 9 a.m. and 4 p.m., Monday through Friday.

• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on https://www.regulations.gov. Submit both copies to the Dockets Management Staff. If you do not wish your name and contact information to be made publicly available, you can provide this information on the cover sheet and not in the body of your comments and you must identify this information as “confidential.” Any information marked as “confidential” will not be disclosed except in accordance with 21 CFR 10.20 and other applicable disclosure law. For more information about FDA's posting of comments to public dockets, see 80 FR 56469, September 18, 2015, or access the information at: https://www.thefederalregister.org/fdsys/pkg/FR-2015-09-18/pdf/2015-23389.pdf.

Docket: For access to the docket to read background documents or the electronic and written/paper comments received, go to https://www.regulations.gov and insert the docket number, found in brackets in the heading of this document, into the “Search” box and follow the prompts and/or go to the Dockets Management Staff, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

You may submit comments on any guidance at any time (see 21 CFR 10.115(g)(5)).

Submit written requests for single copies of the guidance to the Office of Combination Products, Food and Drug Administration, Bldg. 32, Rm. 5129, 10903 New Hampshire Ave., Silver Spring, MD 20993. Send one self-addressed adhesive label to assist that office in processing your requests. See the SUPPLEMENTARY INFORMATION section for electronic access to the guidance document.

FOR FURTHER INFORMATION CONTACT:

Melissa Burns, Office of Combination Products, Food and Drug Administration, 301-796-5616, [email protected].

SUPPLEMENTARY INFORMATION: I. Background

FDA is announcing the availability of an immediately in effect guidance for industry entitled “Compliance Policy for Combination Product Postmarketing Safety Reporting.” This guidance describes FDA's compliance policy for combination product applicants and constituent part applicants and activities under 21 CFR part 4, subpart B, which was published in the Federal Register of December 20, 2016 (81 FR 92603) and addresses postmarketing safety reporting for combination products. We are issuing this guidance consistent with our good guidance practices (GGP) regulation (§ 10.115 (21 CFR 10.115)). We are implementing this guidance without prior public comment, because we have determined that prior public participation is not feasible or appropriate (see section 701(h)(1)(C)(i) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 371(h)(1)(C)(i)) and § 10.115(g)(2)). We made this determination because FDA needs to communicate its compliance policy in a timely manner given the upcoming compliance deadlines for certain provisions in 21 CFR part 4, subpart B, and the amount of time needed for firms to prepare for them. Although this guidance is immediately effective, it remains subject to comment in accordance with FDA's GGP regulation.

Published elsewhere in this issue of the Federal Register, FDA is announcing the availability of the draft guidance entitled “Postmarketing Safety Reporting for Combination Products.”

This guidance represents the current thinking of FDA on this topic. It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations. This guidance is not subject to Executive Order 12866.

II. Paperwork Reduction Act of 1995

This guidance refers to previously approved collections of information found in FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information in 21 CFR 314.80(c) and (e), as well as for 21 CFR 314.81(b) are approved under OMB control numbers 0910-0001, 0910-0230, and 0910-0291. The information collection provisions for 21 CFR 600.80 and 600.81 are approved under OMB control number 0910-0308. Those for 21 CFR 606.170 are approved under OMB control number 0910-0116. Those for 21 CFR 606.171 are approved under OMB control number 0910-0458. The information collection provisions for 21 CFR 803.50, 803.53, and 803.56 are approved under OMB control numbers 0910-0291 and 0910-0437. The information collection provisions for 21 CFR 806.10 and 806.20 are approved under OMB control number 0910-0359. The information collection provisions for §§ 4.102, 4.103, and 4.105 are approved under OMB control number 0910-0834.

III. Electronic Access

Persons with access to the internet may obtain the guidance at either https://www.fda.gov/Drugs/GuidanceComplianceRegulatoryInformation/Guidances/default.htm or https://www.regulations.gov.

Dated: March 15, 2018. Leslie Kux, Associate Commissioner for Policy.
[FR Doc. 2018-05688 Filed 3-20-18; 8:45 am] BILLING CODE 4164-01-P
ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 51 Requirements for Preparation, Adoption, and Submittal of Implementation Plans CFR Correction In Title 40 of the Code of Federal Regulations, Parts 50 to 51, revised as of July 1, 2017, on page 478, in Part 51, Appendix M, following Reynolds Number., Equation 10 is reinstated to read as follows: ER21MR18.001 [FR Doc. 2018-05798 Filed 3-20-18; 8:45 am] BILLING CODE 1301-00-D ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2016-0639; FRL-9974-63] Aluminum tris (O-ethylphosphonate); Pesticide Tolerances AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

This regulation amends a tolerance for residues of aluminum tris (O-ethylphosphonate) in or on Fruit, citrus, group 10. Fosetyl-al is the common name for aluminum tris (O-ethylphosphonate). Tessenderlo Kerley, Inc requested the amended tolerance under the Federal Food, Drug, and Cosmetic Act (FFDCA).

DATES:

This regulation is effective March 21, 2018. Objections and requests for hearings must be received on or before May 21, 2018, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION).

ADDRESSES:

The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2016-0639, is available at http://www.regulations.gov or at the Office of Pesticide Programs Regulatory Public Docket (OPP Docket) in the Environmental Protection Agency Docket Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301 Constitution Ave. NW, Washington, DC 20460-0001. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OPP Docket is (703) 305-5805. Please review the visitor instructions and additional information about the docket available at http://www.epa.gov/dockets.

FOR FURTHER INFORMATION CONTACT:

Michael Goodis, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001; main telephone number: (703) 305-7090; email address: [email protected].

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

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

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

You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's e-CFR site at http://www.ecfr.gov/cgi-bin/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl.

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

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2016-0639 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before May 21, 2018. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2016-0639, by one of the following methods:

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

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

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

Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at http://www.epa.gov/dockets. II. Summary of Petitioned-For Tolerance

In the Federal Register of July 26, 2017 (82 FR 34664) (FRL-9963-50), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 6F8517) by Tessenderlo Kerley, Inc, 2255 N. 44th St., Suite 300, Phoenix, AZ 85008. The petition requested that 40 CFR 180.415 be modified by amending tolerances for residues of the fungicide aluminum tris (O-ethylphosphonate), in or on fruit, citrus, group 10 from 5.0 parts per million (ppm) to 9.0 ppm. That document referenced a summary of the petition prepared by Tessenderlo Kerley, Inc, the registrant, which is available in the docket, http://www.regulations.gov. No comments were received on this notice of filing.

Because EPA does not issue group tolerances for groups that have been updated or superseded, the petitioner submitted a revised petition, clarifying that its request was to establish tolerances for residues of the fungicide aluminum tris (O-ethylphosphonate) in or on the updated crop group fruit, citrus, group 10-10 at 9.0 ppm. EPA published notice of this revised petition in the Federal Register on December 19, 2017 (82 FR 60167) (FRL-9971-11). That document referenced a summary of this updated petition, which is available in the docket, http://www.regulations.gov. Comments were received on the notice of filing. EPA's response to these comments is discussed in Unit IV.C.

III. Aggregate Risk Assessment and Determination of Safety

Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .”

Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for aluminum tris (O-ethylphosphonate) including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with aluminum tris (O-ethylphosphonate) follows.

A. Toxicological Profile

EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.

The major target organs following repeated oral exposure to fosetyl-Al are the reproductive system in the dog (testicular degeneration: Spermatocytic and/or spermatidic giant cells in the lumen of the seminiferous tubules) and the urinary system in the rat (histopathological changes in the kidney, impairment of calcium/phosphorus metabolism, calculi and hyperplasia in the urinary tract, bladder tumors).

The prenatal developmental studies in rabbits and rats and the 3-generation reproduction study in rats showed no indication of increased susceptibility following in utero and/or postnatal exposure to fosetyl-Al. Developmental toxicity was not observed in the rat at the limit dose or in the rabbit at the highest dose tested (500 mg/kg/day). Reproductive toxicity was not observed at the limit dose, and offspring toxicity (decreased pup body weight at 600 mg/kg/day) was observed at the same dose as maternal toxicity (decreased body weight gain and urinary tract changes). The toxicology database for fosetyl-Al does not show any evidence of neurotoxicity.

Fosetyl-Al is classified as not likely to be carcinogenic to humans since it was negative for carcinogenicity except at extremely high doses (>limit dose) in rats and mice, and it did not show any genotoxic potential. Fosetyl-Al is not acutely toxic via the oral, dermal, and inhalation routes, is not a skin irritant or dermal sensitizer, but is a severe eye irritant.

Specific information on the studies received and the nature of the adverse effects caused by aluminum tris (O-ethylphosphonate) as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at http://www.regulations.gov in document Fosetyl-Aluminum (Fosetyl-AI): Human Health Risk Assessment in Support of the Amended Registration for the Proposed 0-day Pre-Harvest Interval (PHI) for Citrus Fruit Group 10-10 at pages 9-14 in docket ID number EPA-HQ-OPP-2016-0639.

B. Toxicological Points of Departure/Levels of Concern

Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/assessing-human-health-risk-pesticides.

A summary of the toxicological endpoints for aluminum tris (O-ethylphosphonate) used for human risk assessment is shown in Table 1 of this unit.

Table 1—Summary of Toxicological Doses and Endpoints for Aluminum tris (O-ethylphosphonate) for Use in Human Health Risk Assessment Exposure/scenario Point of departure and uncertainty/
  • safety factors
  • RfD, PAD, LOC for risk assessment Study and toxicological effects
    Acute dietary (All populations) No appropriate endpoint was identified. There were no adverse effects observed in oral toxicity studies that could be attributed to a single-dose exposure. Chronic dietary (All populations) NOAEL = 250mg/kg/day
  • UFA = 10x
  • UFH = 10x
  • FQPA SF = 1x
  • Chronic RfD = 2.5 mg/kg/day
  • cPAD = 2.5 mg/kg/day
  • Chronic oral toxicity (dog).
  • LOAEL = 500 mg/kg/day based on an increased incidence of testicular degeneration (spermatocytic and/or spermatidic giant cells in the lumen of the seminiferous tubules).
  • Incidental oral (Short- and intermediate-term) NOAEL = 300 mg/kg/day
  • UFA = 10x
  • UFH = 10x
  • FQPA SF = 1x
  • Residential LOC for MOE <100 3-generation reproduction (rat).
  • LOAEL = 600 mg/kg/day based on decreased body weight gains in the F2b generation and urinary tract changes in adults and decreased pup body weights.
  • Dermal (All durations) No potential hazard via the dermal route, based on the lack of systemic effects following repeat dermal exposure of rabbits at dose levels up to 1,500 mg/kg/day, which is greater than the limit dose. Inhalation (Short- and intermediate -term) NOAEL = 300 mg/kg/day
  • UFA = 10x
  • UFH = 10x
  • FQPA SF = 1x
  • Residential and Occupational LOC for MOE <100 3-generation reproduction (rat).
  • LOAEL = 600 mg/kg/day based on decreased body weight gains in the F2b generation and urinary tract changes in adults.
  • Cancer (Oral, dermal, inhalation) Not likely to be carcinogenic to humans. FQPA SF = Food Quality Protection Act Safety Factor. LOAEL = lowest-observed-adverse-effect-level. LOC = level of concern. mg/kg/day = milligram/kilogram/day. MOE = margin of exposure. NOAEL = no-observed-adverse-effect-level. PAD = population adjusted dose (a = acute, c = chronic). RfD = reference dose. UF = uncertainty factor. UFA = extrapolation from animal to human (interspecies). UFH = potential variation in sensitivity among members of the human population (intraspecies).
    C. Exposure Assessment

    1. Dietary exposure from food and feed uses. In evaluating dietary exposure to aluminum tris (O-ethylphosphonate), EPA considered exposure under the petitioned-for tolerances as well as all existing aluminum tris (O-ethylphosphonate) tolerances in 40 CFR 180.415. EPA assessed dietary exposures from aluminum tris (O-ethylphosphonate) in food as follows:

    i. Acute exposure. Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure. No such effects were identified in the toxicological studies for aluminum tris (O-ethylphosphonate); therefore, a quantitative acute dietary exposure assessment is unnecessary.

    ii. Chronic exposure. In conducting the chronic dietary exposure assessment EPA used the food consumption data from the USDA Nationwide Health and Nutrition Examination Survey, What We Eat in America (NHANES/WWEIA) conducted from 2003-2008. As to residue levels in food, the chronic dietary analysis was obtained from the Dietary Exposure Evaluation Model using the Food Commodity Intake Database (DEEM-FCID; version 3.16). The unrefined chronic analysis is based on tolerance-level residues and 100% crop treated assumptions. Default processing factors were used for all crops, except for citrus where processing studies showed no residue concentration; thus, the processing factor was set to one for processed citrus commodities.

    iii. Cancer. Based on the data summarized in Unit III.A., EPA has concluded that aluminum tris (O-ethylphosphonate) does not pose a cancer risk to humans. Therefore, a dietary exposure assessment for the purpose of assessing cancer risk is unnecessary.

    iv. Anticipated residue and percent crop treated (PCT) information. EPA did not use anticipated residue and/or PCT information in the dietary assessment for aluminum tris (O-ethylphosphonate). Tolerance-level residues and/or 100% CT were assumed for all food commodities.

    2. Dietary exposure from drinking water. The Agency used screening-level water exposure models in the dietary exposure analysis and risk assessment for aluminum tris (O-ethylphosphonate) in drinking water. These simulation models take into account data on the physical, chemical, and fate/transport characteristics of aluminum tris (O-ethylphosphonate). Further information regarding EPA drinking water models used in pesticide exposure assessment can be found at http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/about-water-exposure-models-used-pesticide.

    Environmental fate properties suggest that aluminum tris (O-ethylphosphonate) is not likely to reach ground or surface water under most conditions, and if it does reach surface water, it is expected to degrade rapidly. However, if aluminum tris (O-ethylphosphonate) reached groundwater, it could persist. Based on the Screening Concentration in Ground Water (SCI-GROW) model, the estimated drinking water concentration (EDWC) of aluminum tris (O-ethylphosphonate) for chronic exposures for non-cancer assessments is estimated to be 0.006 ppb for ground water.

    Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For chronic dietary risk assessment, the water concentration of value 0.006 ppb was used to assess the contribution to drinking water.

    3. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets). Aluminum tris (O-ethylphosphonate) is currently registered for the following uses that could result in residential exposures: Turf and ornamental plants. EPA assessed residential exposure using the following assumptions: Inhalation exposure from the hose end sprayer for turf applications, and incidental oral exposure from post-application exposure to treated turf. Because no dermal endpoint was identified, non-occupational dermal exposures were not assessed. Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/standard-operating-procedures-residential-pesticide.

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

    EPA has not found aluminum tris (O-ethylphosphonate) to share a common mechanism of toxicity with any other substances, and aluminum tris (O-ethylphosphonate) does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that aluminum tris (O-ethylphosphonate) does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's website at http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/cumulative-assessment-risk-pesticides.

    D. Safety Factor for Infants and Children

    1. In general. Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an additional tenfold (10X) margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the FQPA Safety Factor (SF). In applying this provision, EPA either retains the default value of 10X, or uses a different additional safety factor when reliable data available to EPA support the choice of a different factor.

    2. Prenatal and postnatal sensitivity. There is no concern for increased quantitative or qualitative susceptibility of the young following in utero (rats and rabbits) and post-natal exposure (rats) to fosetyl-Al. Also, there is no evidence of developmental toxicity, reproductive toxicity, neurotoxicity, or immunotoxicity at dose levels that do not exceed the limit dose.

    3. Conclusion. EPA has determined that reliable data show the safety of infants and children would be adequately protected if the FQPA SF were reduced to 1X. That decision is based on the following findings:

    i. The toxicity database for aluminum tris (O-ethylphosphonate) is complete.

    ii. There is no indication that aluminum tris (O-ethylphosphonate) is a neurotoxic chemical and there is no need for a developmental neurotoxicity study or additional UFs to account for neurotoxicity.

    iii. There is no evidence that aluminum tris (O-ethylphosphonate) results in increased susceptibility in in utero rats or rabbits in the prenatal developmental studies or in young rats in the 3-generation reproduction study.

    iv. There are no residual uncertainties identified in the exposure databases. The dietary food exposure assessments were performed based on 100 PCT and tolerance-level residues and are not likely to underestimate risk. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to aluminum tris (O-ethylphosphonate) in drinking water. EPA used similarly conservative assumptions to assess post-application exposure of children as well as incidental oral exposure of toddlers. These assessments will not underestimate the exposure and risks posed by aluminum tris (O-ethylphosphonate).

    E. Aggregate Risks and Determination of Safety

    EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.

    1. Acute risk. An acute aggregate risk assessment takes into account acute exposure estimates from dietary consumption of food and drinking water. No adverse effect resulting from a single oral exposure was identified and no acute dietary endpoint was selected. Therefore, aluminum tris (O-ethylphosphonate) is not expected to pose an acute risk.

    2. Chronic risk. Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to aluminum tris (O-ethylphosphonate) from food and water will utilize 14% of the cPAD for children 1-2 years old, the population group receiving the greatest exposure. Based on the explanation in Unit III.C.3., regarding residential use patterns, chronic residential exposure to residues of aluminum tris (O-ethylphosphonate) is not expected.

    3. Short-term risk. Short-term aggregate exposure takes into account short-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level).

    Aluminum tris (O-ethylphosphonate) is currently registered for uses that could result in short-term residential exposure, and the Agency has determined that it is appropriate to aggregate chronic exposure through food and water with short-term residential exposures to aluminum tris (O-ethylphosphonate).

    Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded the combined short-term food, water, and residential exposures result in aggregate MOEs of 3200 for male adults, 3300 for female adults and 480 for children 1-2 years old. Because EPA's level of concern for aluminum tris (O-ethylphosphonate) is a MOE of 100 or below, these MOEs are not of concern.

    4. Intermediate-term risk. Intermediate-term aggregate exposure takes into account intermediate-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). An intermediate-term adverse effect was identified; however, aluminum tris (O-ethylphosphonate) is not registered for any use patterns that would result in intermediate-term residential exposure. Intermediate-term risk is assessed based on intermediate-term residential exposure plus chronic dietary exposure. Because there is no intermediate-term residential exposure and chronic dietary exposure has already been assessed under the appropriately protective cPAD (which is at least as protective as the POD used to assess intermediate-term risk), no further assessment of intermediate-term risk is necessary, and EPA relies on the chronic dietary risk assessment for evaluating intermediate-term risk for aluminum tris (O-ethylphosphonate).

    5. Aggregate cancer risk for U.S. population. Based on the lack of evidence of carcinogenicity in two adequate rodent carcinogenicity studies, aluminum tris (O-ethylphosphonate) is not expected to pose a cancer risk to humans.

    6. Determination of safety. Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children from aggregate exposure to aluminum tris (O-ethylphosphonate) residues.

    IV. Other Considerations A. Analytical Enforcement Methodology

    Adequate enforcement methodology (Pesticide Analytical Manual (PAM) II method, which uses diazomethane as the methylating agent and quantitation of aluminum tris (O-ethylphosphonate) by Gas Chromatography with Flame Photometric Detector (GC/FPD)) is available to enforce the tolerance expression.

    B. International Residue Limits

    In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level. The Codex has not established a MRL for aluminum tris (O-ethylphosphonate) on citrus fruit.

    C. Response to Comments

    EPA received five comments on the second notice of filing. Two comments pertained to the general concern over addition of more chemicals to the daily diet and onset of autoimmune diseases but did not contain any specific information relevant to the potential risks from aluminum tris (O-ethylphosphonate). In response, the Agency explains that it has complied with the requirements of the FFDCA, which allow the Agency to establish or modify tolerances if the Agency determines they are safe. When new or amended tolerances are requested for the presence of the residues of a pesticide and its toxicologically significant metabolite(s) in food or feed, the EPA, as is required by section 408 of the FFDCA, estimates the risk of the potential exposure to these residues by performing an aggregate risk assessment. Such a risk assessment integrates the individual assessments that are conducted for food, drinking water, and residential exposures. Additionally, the Agency, as is further required by section 408 of the FFDCA, considers available information concerning what are termed the cumulative toxicological effects of the residues of that pesticide and of other substances having a common mechanism of toxicity with it. The Agency has concluded after this assessment that there is a reasonable certainty that no harm will result from exposure to the residues of interest. Therefore, the Agency may establish the tolerances requested in this petition.

    Another citizen was concerned about the risk to pollinators. The commenter stated this use should be denied due to toxicity to pollinators and that keeping them healthy should be our top priority. The comment primarily appears directed to the registration of the pesticide under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and are not relevant to the underlying safety finding made under the FFDCA; therefore, the EPA will consider impacts to the environment and non-target species under the authority of FIFRA. The remaining two comments were not germane to this action; therefore, no further response from the Agency is required.

    V. Conclusion

    Therefore, tolerances are amended for residues of aluminum tris (O-ethylphosphonate), in or on fruit, citrus, group 10-10 at 9.0 ppm.

    VI. Statutory and Executive Order Reviews

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

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

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

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

    VII. Congressional Review Act

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

    List of Subjects in 40 CFR Part 180

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

    Dated: March 7, 2018. Michael Goodis, Director, Registration Division, Office of Pesticide Programs.

    Therefore, 40 CFR chapter I is amended as follows:

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

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

    2. In § 180.415, a. Remove the entry for “Fruit, citrus, group 10” from the table in paragraph (a). b. Add alphabetically an entry to the table in paragraph (a) for “Fruit, citrus, group 10-10”.

    The addition reads as follows:

    § 180.415 Aluminum tris (O-ethylphosphonate); tolerances for residues.

    (a) * * *

    Commodity Parts per million *    *    *    *    * Fruit, citrus, group 10-10 9.0 *    *    *    *    *
    [FR Doc. 2018-05642 Filed 3-20-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2015-0817; FRL-9974-32] Flutianil; Pesticide Tolerances AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    This regulation establishes tolerances for residues of flutianil in or on multiple commodities that are identified and discussed later in this document and an exemption for indirect or inadvertent residues of flutianil on other crops rotated into fields previously treated with flutianil. OAT AGRIO Company, Ltd. requested these tolerances under the Federal Food, Drug, and Cosmetic Act (FFDCA).

    DATES:

    This regulation is effective March 21, 2018. Objections and requests for hearings must be received on or before May 21, 2018, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION).

    ADDRESSES:

    The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2015-0817, is available at http://www.regulations.gov or at the Office of Pesticide Programs Regulatory Public Docket (OPP Docket) in the Environmental Protection Agency Docket Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301 Constitution Ave. NW, Washington, DC 20460-0001. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OPP Docket is (703) 305-5805. Please review the visitor instructions and additional information about the docket available at http://www.epa.gov/dockets.

    FOR FURTHER INFORMATION CONTACT:

    Michael L. Goodis, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001; main telephone number: (703) 305-7090; email address: [email protected].

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

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

    • Crop production (NAICS code 111).

    • Animal production (NAICS code 112).

    • Food manufacturing (NAICS code 311).

    • Pesticide manufacturing (NAICS code 32532).

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

    You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's e-CFR site at http://www.ecfr.gov/cgi-bin/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl.

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

    Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2015-0817 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before May 21, 2018. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

    In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2015-0817, by one of the following methods:

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

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

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

    Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at http://www.epa.gov/dockets. II. Summary of Petitioned-For Tolerance

    In the Federal Register of April 25, 2016 (81 FR 24044) (FRL-9944-86), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 5F8408) by OAT AGRIO Company, Ltd, 1-3-1 Kanda Ogawa-machi, Chiyoda-ku, Tokyo 101-0052, Japan. The petition requested that 40 CFR part 180 be amended by establishing tolerances for residues of the fungicide flutianil, (2Z)-2-[2-fluoro-5-(trifluoromethyl)phenyl]sulfanyl-2-[3-(2-methoxyphenyl)thiazolidin-2-ylidene]acetonitrile, in or on apple, fruit at 0.2 parts per million (ppm); apple, juice at 0.03 ppm; apple, wet pomace at 2 ppm; cantaloupe at 0.07 ppm; cherry, fruit at 0.4 ppm; cucumber at 0.02 ppm; grape, fruit at 0.7 ppm; grape, juice at 0.2 ppm; grape, raisins at 0.3 ppm; squash at 0.03 ppm; and strawberry, fruit at 0.3 ppm. That document referenced a summary of the petition prepared by OAT AGRIO Company Ltd., the registrant, which is available in the docket, http://www.regulations.gov. One comment was received on the notice of filing. EPA's response to this comments is discussed in Unit IV.C.

    Following the publication of this notice, the petitioner revised its petition by revising commodity terms to be consistent with the terminology EPA uses for commodities, removing certain processed commodities for which specific tolerances are not needed, amending tolerance levels, and requesting an exemption to cover inadvertent residues. EPA published a notice in the Federal Register of October 12, 2017 (82 FR 47422) (FRL-9967-09), pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing OAT AGRIO Company's amended pesticide petition (PP 5F8408). Superseding the original petition, the revised petition requested that 40 CFR part 180 be amended by establishing tolerances for residues of the fungicide flutianil in or on apple at 0.15 parts per million (ppm); apple, wet pomace at 0.30 ppm; cantaloupe at 0.07 ppm; cherry at 0.40 ppm; cucumber at 0.20; ppm; grape at 0.70 ppm; squash at 0.05 ppm; and strawberry at 0.50 ppm. Additionally, OAT AGRIO Company requested that an exemption from the requirement of a tolerance be established in 40 CFR 180 for indirect or inadvertent residues of fungicide, flutianil in or on all food commodities for which tolerances are not separately established. Comments were received on the notice of filing. EPA's response to these comments is discussed in Unit IV.C.

    III. Aggregate Risk Assessment and Determination of Safety

    Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .”

    Similarly, FFDCA section 408(c)(2) authorizes EPA to establish an exemption from the requirement of a tolerance only if EPA determines the exemption is “safe”, which has the same definition for exemptions as for tolerances and requires consideration of the same exposures and factors as for tolerances. 21 U.S.C. 346a(c)(2)(B).

    Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for flutianil including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with flutianil follows.

    EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.

    No single or repeated dose study performed by any route of exposure produced an adverse effect following flutianil exposure below, at, or above the limit dose (1,000 mg/kg/day). The only toxic effect of flutianil exposure in the rat 28-day, 90-day, or 104-day oral toxicity studies was associated with hyaline droplet formation in the renal proximal tubular cells of males. No toxicity was observed in the female rats dosed up to the limit dose for comparable time periods. An immunohistochemical staining demonstrated that the hyaline droplets in the proximal tubular cells were related to the presence of alpha-2µ-globulin, which is not relevant for human toxicity. Based on the link to alpha-2µ-globulin and the lack of any degenerative or other associated effects, the hyaline droplet was not considered biologically relevant to humans.

    No toxicity was seen in the developmental, reproductive, neurotoxic, or immunotoxic studies for flutianil. No dermal or systemic toxicity was observed at the limit dose in the rat 28-day dermal toxicity study. Nevertheless, in the rat 28-day inhalation toxicity study, increased lung weights in females and histopathological findings of minimal nasal mucous cell hypertrophy/hyperplasia and minimal lung centriacinar inflammation in males and females were observed at the highest dose tested. These observations were consistent with response to aerosol exposure to an airway irritant. The nasal mucous cell hypertrophy/hyperplasia is considered the physiological response of these cells to irritant; however, the increased lung weights and cellular inflammation reflect some degree of edema in air spaces, and inflammation in the lung could affect airway responsiveness and pulmonary function. Therefore, the increased lung weights in females and lung lesions in both sexes were considered adverse effects. Flutianil is classified as “Not Likely to be Carcinogenic to Humans” based on lack of evidence of carcinogenicity in rats and mice and no evidence of mutagenicity. Flutianil produced no genotoxicity.

    Specific information on the studies received and the nature of the adverse effects caused by flutianil as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at http://www.regulations.gov in document “Flutianil. Draft Human Risk Assessment to Support New Uses for a New Active Ingredient, Flutianil on Apple, Cantaloupe, Cherry, Cucumber, Grape, Summer Squash, and Strawberry” dated November 1, 2017 in docket ID number EPA-HQ-OPP-2015-0817.

    Based on the analysis of the available flutianil toxicological studies, there is no adverse toxicity from oral exposures seen in any of the required submitted toxicology studies. No toxicity endpoint and point of departure for regulating dietary exposure is established for the human health risk assessment. There are no registered or proposed residential uses at this time for flutianil; therefore, residential handler and post-application exposure and risk were not assessed.

    Flutianil is proposed for use on a variety of crops. Humans could potentially be exposed to flutianil residues in food because flutianil may be applied directly to growing crops. These applications can also result in flutianil reaching surface and ground water, both of which can serve as sources of drinking water. There are no proposed uses in residential settings; therefore, there are no anticipated residential exposures.

    Based on the toxicological profile of flutianil, EPA has concluded that the FFDCA requirements to retain an additional safety factor for protection of infants and children and to consider cumulative effects do not apply. Section 408(b)(2)(C) of the FFDCA (21 U.S.C. 346a) requires an additional tenfold margin of safety in the case of threshold risks, which are not present in this case. Section 408(b)(2)(D)(v) of the FFDCA requires consideration of information concerning cumulative effects of substances that have a common mechanism of toxicity, which flutianil does not have.

    Based on the available data indicating a lack of adverse effects from exposure to flutianil, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children from aggregate exposure to flutianil.

    IV. Other Considerations A. Analytical Enforcement Methodology

    The gas chromatography-mass spectrometry detector (GC/MSD) is used to measure and evaluate the chemical flutianil on apples, cantaloupe, cherry, cucumber, squash, and strawberry. The high performance liquid chromatography with tandem mass spectral detection (LCMS/MS) is used to measure and evaluate the chemical flutianil and the metabolite OC-56635 in grapes.

    Adequate enforcement methodology (gas chromatography) is available to enforce the tolerance expression.

    B. International Residue Limits

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

    The Codex has not established a MRL for flutianil.

    C. Response to Comments

    Several comments were received, although many simply expressed concern about the use of pesticides on food generally. While EPA recognizes that some individuals oppose the use of pesticides in or on food, the FFDCA authorizes EPA to establish tolerances or exemptions where it determines that doing so is safe. As required by the FFDCA, EPA conducted a comprehensive assessment of flutianil, including its potential for carcinogenicity. Based on its assessment of the available data, the Agency believes that given the observed lack of toxicity of this chemical, no risks of concern are expected. Therefore, EPA concludes that the tolerances and exemption are safe and can be supported. The commenters did not provide any information to indicate otherwise.

    Some comments (i.e., comments from the Center for Biological Diversity (CBD)) were not relevant to this action because they raised issues concerning compliance with the Endangered Species Act (ESA) and the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), which is not relevant to the determination needed to support tolerance actions under the FFDCA.

    Comments were received on the potential of flutianil to harm humans based on the human health and environmental toxicity findings of the European Food Safety Authority (EFSA). Although concerns were raised in the EFSA report about the potential for carcinogenicity and reproductive toxicity of flutianil, EPA has received additional data on flutianil supporting the Agency's conclusions of a lack of carcinogenicity or reproductive toxicity. Therefore, EPA concludes that it has sufficient data to address the concerns raised by the EFSA assessment and support its safety finding for flutianil. For further information concerning these studies, see the “Final Registration Decision for the New Active Ingredient Flutianil: A Fungicide for Use on Apples, Cantaloupes, Cherries, Cucumbers, Grapes, Squash, and Strawberries” [Docket ID Number EPA-HQ-OPP-2015-0817].

    V. Conclusion

    Although the lack of toxicity supports a safety finding for an exemption from the requirement of tolerance for all crops. EPA is establishing numerical tolerances for residues resulting from direct applications to certain commodities because the petitioner requested them for international trade purposes. Therefore, tolerances are established for residues of flutianil, (2Z)-2-[2-fluoro-5-(trifluoromethy)phenyl]sulfanyl-2-[3-(2-methoxyphenyl)thiazolidin-2-ylidene]acetonitrile, in or on apple at 0.15 ppm; apple, wet pomace at 0.30 ppm; cantaloupe at 0.07 ppm; cherry at 0.40 ppm; cucumber at 0.20 ppm; grape at 0.70 ppm; squash at 0.05 ppm; and strawberry at 0.50 ppm.

    Additionally, an exemption from the requirement of a tolerance is established for indirect or inadvertent residues of flutianil, (2Z)-2-[2-fluoro-5-(trifluoromethy)phenyl]sulfanyl-2-[3-(2-methoxyphenyl)thiazolidin-2-ylidene]acetonitrile, in or on all food commodities, except for those commodities with tolerances established.

    VI. Statutory and Executive Order Reviews

    This action establishes tolerances and an exemption from the requirement of a tolerance under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001); Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997); or Executive Order 13771, entitled “Reducing Regulations and Controlling Regulatory Costs” (82 FR 9339, February 3, 2017). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq.), nor does it require any special considerations under Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).

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

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

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

    VII. Congressional Review Act

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

    List of Subjects in 40 CFR Part 180

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

    Dated: March 8, 2018. Richard P. Keigwin, Jr., Director, Office of Pesticide Programs.

    Therefore, 40 CFR chapter I is amended as follows:

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

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

    2. Add § 180.697 to subpart C to read as follows:
    §  180.697 Flutianil; tolerances for residues.

    (a) General. Tolerances are established for the combined residues of the fungicide flutianil, including its metabolites and degradates in or on food commodities in the table below. Compliance with the tolerance levels specified below is to be determined by measuring only flutianil, (2Z)-2-[2-fluoro-5-(trifluoromethyl)phenyl]sulfanyl-2-[3-(2-methoxyphenyl)thiazolidin-2-ylidene]acetonitrile in or on the following commodities:

    Commodity Parts per
  • million
  • Apple 0.15 Apple, wet pomace 0.30 Cantaloupe 0.07 Cherry 0.40 Cucumber 0.20 Grape 0.70 Squash 0.05 Strawberry 0.50

    (b) Section 18 emergency exemptions. [Reserved]

    (c) Tolerances with regional registrations. [Reserved]

    (d) Indirect or inadvertent residues. [Reserved]

    3. Add § 180.1354 to subpart D to read as follows:
    §  180.1354 Flutianil; exemption from the requirement of a tolerance.

    An exemption from the requirement of a tolerance is established for indirect and inadvertent residues of the fungicide flutianil, including its metabolites and degradates, in or on all food commodities not listed in § 180.697(a), when residues are present therein as a result of uptake by crops rotated into fields containing the crops in § 180.697(a) that were previously treated with flutianil.

    [FR Doc. 2018-05640 Filed 3-20-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2017-0211; FRL-9973-11] S-Metolachlor; Pesticide Tolerances AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    This regulation establishes tolerances for residues of S-metolachlor in or on sugarcane, cane and sugarcane molasses. Syngenta Crop Protection requested these tolerances under the Federal Food, Drug, and Cosmetic Act (FFDCA).

    DATES:

    This regulation is effective March 21, 2018. Objections and requests for hearings must be received on or before May 21, 2018, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION).

    ADDRESSES:

    The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2017-0211, is available at http://www.regulations.gov or at the Office of Pesticide Programs Regulatory Public Docket (OPP Docket) in the Environmental Protection Agency Docket Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301 Constitution Ave. NW, Washington, DC 20460-0001. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OPP Docket is (703) 305-5805. Please review the visitor instructions and additional information about the docket available at http://www.epa.gov/dockets.

    FOR FURTHER INFORMATION CONTACT:

    Michael Goodis, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001; main telephone number: (703) 305-7090; email address: [email protected].

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

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

    • Crop production (NAICS code 111).

    • Animal production (NAICS code 112).

    • Food manufacturing (NAICS code 311).

    • Pesticide manufacturing (NAICS code 32532).

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

    You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's e-CFR site at http://www.ecfr.gov/cgi-bin/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl.

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

    Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2017-0211 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before May 21, 2018. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

    In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2017-0211, by one of the following methods:

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

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

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

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

    II. Summary of Petitioned-For Tolerance

    In the Federal Register of September 15, 2017 (82 FR 43352) (FRL-9965-43), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 6F8519) by Syngenta Crop Protection, LLC, P.O. Box 18300, Greensboro, NC 27419. The petition requested that 40 CFR part 180 be amended by establishing tolerances for residues of the herbicide S-metolachlor in or on sugarcane at 0.4 parts per million (ppm) and sugarcane molasses at 1.5 ppm. That document referenced a summary of the petition prepared by Syngenta Crop Protection, the registrant, which is available in the docket, http://www.regulations.gov. A comment was received on the notice of filing. EPA's response to this comment is discussed in Unit IV.C.

    Based upon review of the data supporting the petition, EPA is establishing a tolerance for sugarcane, cane below the level requested. The reason for this change is explained in Unit IV.D.

    III. Aggregate Risk Assessment and Determination of Safety

    Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .”

    Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for S-metolachlor including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with S-metolachlor follows.

    A. Toxicological Profile

    EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.

    The existing toxicological database is primarily comprised of studies conducted with metolachlor. However, bridging studies indicate that the metolachlor toxicology database can be used to assess toxicity for S-metolachlor. In subchronic (metolachlor and S-metolachlor) and chronic (metolachlor) toxicity studies in dogs and rats decreased body weight and body weight gain were the most commonly observed effects. No systemic toxicity was observed in rabbits when metolachlor was administered dermally. There was no evidence of neurotoxic effects in the available toxicity studies, and there is no evidence of immunotoxicity in the submitted mouse immunotoxicity study.

    Prenatal developmental studies in the rat and rabbit with both metolachlor and S-metolachlor revealed no evidence of a qualitative or quantitative susceptibility in fetal animals. A 2-generation reproduction study with metolachlor in rats showed no evidence of parental or reproductive toxicity. There are no residual uncertainties with regard to pre- and/or postnatal toxicity.

    Metolachlor has been evaluated for carcinogenic effects in the mouse and the rat. Although treatment with metolachlor did not result in an increase in treatment-related tumors in male rats or in male or female mice, metolachlor caused an increase in liver tumors in female rats. There was no evidence of mutagenic or cytogenetic effects in vivo or in vitro. Based on the information available in 1994, metolachlor was classified as a Group C possible human carcinogen, in accordance with the 1986 Guidelines for Carcinogen Risk Assessment. Based on that classification and consistent with the data available at that time, EPA determined that a non-linear approach (i.e., reference dose (RfD)) would be protective for all chronic toxicity, including carcinogenicity, that could result from exposure to metolachlor.

    In 2017, EPA re-assessed the cancer classification for metolachlor in order to take into account additional mechanistic studies on s-metolachlor that were submitted to assess a human relevance framework analysis for a mitogenic mode of action (MOA) for liver tumors in female rats. Based on comparable effects of S-metolachlor and metolachlor shown in several associative events supporting the mode of action hypothesis, the Agency concluded that the in vitro and in vivo data reasonably explains the tumorigenic effects of metolachlor and adequately demonstrates dose and temporal concordance to support key events for the MOA leading to liver tumors in female rats. Specifically, the Agency found that the development of liver tumors in rats orally administered metolachlor is initiated by activation of constitutive androstane receptor (CAR) in liver hepatocytes followed by altered gene expression, transient increased cell proliferation, increased hepatocellular foci, and hepatocyte toxicity (increased liver weight and liver hypertrophy).

    Consequently, in accordance with the EPA's Final Guidelines for Carcinogen Risk Assessment (March 2005), EPA has reclassified metolachlor/S-metolachlor as “Not Likely to be Carcinogenic to Humans” at doses that do not induce cellular proliferation in the liver. This classification was based on convincing evidence of a CAR-mediated mitogenic MOA for liver tumors in female rats. Because the current chronic RfD is protective for any proliferative responses in the liver and the other key events in the MOA for the formation of liver tumors, a non-linear approach (i.e., RfD) would adequately account for all the chronic toxicity, including carcinogenicity, that could result from exposure to metolachlor/S-metolachlor.

    Specific information on the studies received and the nature of the adverse effects caused by S-metolachlor as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at http://www.regulations.gov in the document titled “S-metolachlor—Human Health Risk Assessment for the Establishment of Permanent Tolerances for Use of the Herbicide on Sugarcane (PP#6F8519)” on pages 36-42 in docket ID number EPA-HQ-OPP-2017-0211.

    B. Toxicological Points of Departure/Levels of Concern

    Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/assessing-human-health-risk-pesticides.

    A summary of the toxicological endpoints for S-metolachlor used for human risk assessment is shown in Table 1 of this unit.

    Table 1—Summary of Toxicological Doses and Endpoints for S-metolachlor for Use in Human Health Risk Assessment Exposure/scenario Point of
  • departure and
  • uncertainty/
  • safety factors
  • RfD, PAD, LOC for risk
  • assessment
  • Study and toxicological effects
    Acute dietary (General population including infants and children) NOAEL = 300 mg/kg/day
  • UFA = 10x
  • UFH = 10x
  • FQPA SF = 1x
  • Acute RfD = 3.0 mg/kg/day
  • aPAD = 3.0 mg/kg/day
  • Developmental Toxicity Study—Rat.
  • Metolachlor LOAEL = 1,000 mg/kg/day based increased incidence of death, clinical signs (clonic and/or tonic convulsions, excessive salivation, urine-stained abdominal fur and/or excessive lacrimation) and decreased body weight gain.
  • Chronic dietary (All populations) NOAEL = 9.7 mg/kg/day
  • UFA = 10x
  • UFH = 10x
  • FQPA SF = 1x
  • Chronic RfD = 0.097 mg/kg/day
  • cPAD = 0.097 mg/kg/day
  • One Year Chronic Toxicity—Dog.
  • Metolachlor LOAEL = 33 mg/kg/day based decreased body weight gain in females.
  • Incidental oral short-term (1 to 30 days) NOAEL = 50 mg/kg/day
  • UFA = 10x
  • UFH = 10x
  • FQPA SF = 1x
  • LOC for MOE = 100 Developmental Toxicity Study—Rat.
  • S-metolachlor LOAEL = 500 mg/kg/day based on increased incidence of clinical signs, decreased body weight/body weight gain, food consumption and food efficiency seen in maternal animals.
  • Cancer (Oral, dermal, inhalation) Classification: Metolachlor/S-metolachlor has been classified as “Not Likely to be Carcinogenic to Humans” at doses that do not induce cellular proliferation in the liver, with risk quantitated using a non-linear (RfD) approach. FQPA SF = Food Quality Protection Act Safety Factor. LOAEL = Lowest-observed-adverse-effect-level. LOC = Level of concern. mg/kg/day = Milligram/kilogram/day. MOE = Margin of exposure. NOAEL = No-observed-adverse-effect-level. PAD = Population adjusted dose (a = Acute, c = Chronic). RfD = Reference dose. UF = Uncertainty factor. UFA = Extrapolation from animal to human (interspecies). UFH = Potential variation in sensitivity among members of the human population (intraspecies).
    C. Exposure Assessment

    1. Dietary exposure from food and feed uses. In evaluating dietary exposure to S-metolachlor, EPA considered exposure under the petitioned-for tolerances as well as all existing S-metolachlor and metolachlor tolerances in 40 CFR 180.368. EPA assessed dietary exposures from S-metolachlor and metolachlor in food as follows:

    i. Acute exposure. Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure.

    Such effects were identified for S-metolachlor. In estimating acute dietary exposure, EPA used food consumption information from the United States Department of Agriculture's (USDA) National Health and Nutrition Examination Survey/What We Eat in America, (NHANES/WWEIA). As to residue levels in food, EPA assumed tolerance-level residues and 100 percent crop treated (PCT).

    ii. Chronic exposure. In conducting the chronic dietary exposure assessment EPA used the food consumption data from the USDA's NHANES/WWEIA. As to residue levels in food, EPA assumed tolerance-level residues and 100 PCT.

    iii. Cancer. Based on the data summarized in Unit III.A., EPA has concluded that a nonlinear RfD approach is appropriate for assessing cancer risk to S-metolachlor. Therefore, a separate quantitative cancer exposure assessment is unnecessary since the chronic dietary risk estimate will be protective of potential cancer risk.

    iv. Anticipated residue and PCT information. EPA did not use anticipated residue or PCT information in the dietary assessment for S-metolachlor. Tolerance-level residues and 100 PCT were assumed for all food commodities.

    2. Dietary exposure from drinking water. The Agency used screening-level water exposure models in the dietary exposure analysis and risk assessment for S-metolachlor in drinking water. These simulation models take into account data on the physical, chemical, and fate/transport characteristics of S-metolachlor. Further information regarding EPA drinking water models used in pesticide exposure assessment can be found at http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/about-water-exposure-models-used-pesticide.

    The Agency assessed parent metolachlor, and the metabolites CGA-51202 (metolachlor-OA), CGA-40172, and CGA-50720 together in the drinking water assessment using a total toxic residues (TTR) approach where half-lives were recalculated to collectively account for the parent and the combined residues of concern.

    Based on the Surface Water Concentration Calculator (SWCC), the Pesticide Root Zone Model Ground Water (PRZM GW), and the Screening Concentration in Ground Water (SCI-GROW), the estimated drinking water concentrations (EDWCs) of S-metolachlor and its metabolites for acute exposures are estimated to be 371 parts per billion (ppb) for surface water and 1,060 ppb for ground water, and for chronic exposures are estimated to be 43.70 ppb for surface water and 978 ppb in ground water.

    Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For acute dietary risk assessment, the water concentration value of 1,060 ppb was used to assess the contribution to drinking water. For chronic dietary risk assessment, the water concentration of value 978 ppb was used to assess the contribution to drinking water.

    3. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets).

    S-metolachlor is currently registered for the following uses that could result in residential exposures: On commercial (sod farm) and residential warm-season turf grasses and other non-crop land including golf courses, sports fields, and ornamental gardens. EPA assessed residential exposure using the following assumptions: For residential handlers, in previous human health risk assessments for S-metolachlor inhalation exposure/risk to residential handlers was assessed and resulted in no risks of concern. However, all registered S-metolachlor labels with residential use sites require that handlers wear specific clothing (e.g., long-sleeve shirt/long pants) and personal protective equipment (e.g., gloves). Based on current policy, the Agency assumes these products are not intended for homeowner use and, therefore, a quantitative residential handler assessment was not conducted.

    For residential post-application, there is the potential for short-term incidental oral exposure for individuals exposed as a result of being in an environment that has been previously treated with S-metolachlor. The quantitative exposure/risk assessment for residential post-application exposures is based on the following scenario: Hand-to-mouth incidental oral exposure of children 1-2 years old playing on turf treated with S-metolachlor.

    Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/standard-operating-procedures-residential-pesticide.

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

    EPA has not found S-metolachlor to share a common mechanism of toxicity with any other substances, and S-metolachlor does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that S-metolachlor does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's website at http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/cumulative-assessment-risk-pesticides.

    D. Safety Factor for Infants and Children

    1. In general. Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an additional tenfold (10X) margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the FQPA Safety Factor (SF). In applying this provision, EPA either retains the default value of 10X, or uses a different additional safety factor when reliable data available to EPA support the choice of a different factor.

    2. Prenatal and postnatal sensitivity. There was no evidence of increased quantitative or qualitative fetal susceptibility in the prenatal developmental studies in rats and rabbits or in the reproductive toxicity study in rats, with either metolachlor or S-metolachlor. In general, significant developmental toxicity was not seen in rats or rabbits with either compound. The only effects observed in fetal animals were in the rat prenatal developmental study and included slightly decreased number of implantations per dam, decreased number of live fetuses/dam, increased number of resorptions/dam and significant decrease in mean fetal body weight. These effects occurred at maternally toxic doses (1,000 mg/kg/day).

    3. Conclusion. EPA has determined that reliable data show the safety of infants and children would be adequately protected if the FQPA SF were reduced to 1X for all scenarios assessed as part of EPA's determination of safety for S-metolachlor. This decision is based on the following findings:

    i. The toxicology database for metolachlor and S-metolachlor is complete, with the exception of a required subchronic inhalation study for metolachlor. Although the Agency has determined that a 10X database uncertainty factor should be retained to account for the lack of the subchronic inhalation study, the Agency does not expect inhalation exposures to result from the use of S-metolachlor.

    ii. There is no indication that S-metolachlor is a neurotoxic chemical and there is no need for a developmental neurotoxicity study or additional UFs to account for neurotoxicity.

    iii. There is no evidence that S-metolachlor results in increased susceptibility in in utero rats or rabbits in the prenatal developmental studies or in young rats in the 2-generation reproduction study.

    iv. There are no residual uncertainties identified in the exposure databases. The dietary food exposure assessments were performed based on 100 PCT and tolerance-level residues. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to S-metolachlor in drinking water. EPA used similarly conservative assumptions to assess post-application incidental oral exposure of children 1 to less-than 2 years old. These assessments will not underestimate the exposure and risks posed by S-metolachlor.

    E. Aggregate Risks and Determination of Safety

    EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.

    1. Acute risk. Using the exposure assumptions discussed in this unit for acute exposure, the acute dietary exposure from food and water to S-metolachlor will occupy 6.1% of the aPAD for all infants less than 1-year old, the population group receiving the greatest exposure.

    2. Chronic risk. Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to S-metolachlor from food and water will utilize 58% of the cPAD for all infants less than 1-year old, the population group receiving the greatest exposure. Based on the explanation in Unit III.C.3., regarding residential use patterns, chronic residential exposure to residues of S-metolachlor is not expected.

    3. Short-term risk. Short-term aggregate exposure takes into account short-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level).

    S-metolachlor is currently registered for uses that could result in short-term residential exposure, and the Agency has determined that it is appropriate to aggregate chronic exposure through food and water with short-term residential exposures to S-metolachlor.

    Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded the combined short-term food, water, and residential exposures result in an aggregate MOE of 700 for children 1-2 years old, the only population group of concern. Because EPA's level of concern for S-metolachlor is a MOE of 100 or below, this MOE is not of concern.

    4. Intermediate-term risk. Intermediate-term aggregate exposure takes into account intermediate-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level).

    An intermediate-term adverse effect was identified; however, S-metolachlor is not registered for any use patterns that would result in intermediate-term residential exposure. Intermediate-term risk is assessed based on intermediate-term residential exposure plus chronic dietary exposure. Because there is no intermediate-term residential exposure and chronic dietary exposure has already been assessed under the appropriately protective cPAD (which is at least as protective as the POD used to assess intermediate-term risk), no further assessment of intermediate-term risk is necessary, and EPA relies on the chronic dietary risk assessment for evaluating intermediate-term risk for S-metolachlor.

    5. Aggregate cancer risk for U.S. population. As discussed in Unit III.A, the chronic dietary risk assessment is protective of any potential cancer effects. Based on the results of that assessment, EPA concludes that S-metolachlor is not expected to pose a cancer risk to humans.

    6. Determination of safety. Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children from aggregate exposure to S-metolachlor residues.

    IV. Other Considerations A. Analytical Enforcement Methodology

    Adequate methodology is available for enforcing the established and recommended tolerances. PAM Vol. II, Pesticide Regulation Section 180.368, lists a gas chromatography with nitrogen-phosphorus detector (GC/NPD) method (Method I) for determining residues in/on plant commodities and a gas chromatography with mass selective detector (GC/MSD) method (Method II) for determining residues in livestock commodities. These methods determine residues of metolachlor and its metabolites as either CGA-37913 or CGA-49751 following acid hydrolysis.

    B. International Residue Limits

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

    The Codex has not established any MRLs for either S-metolachlor or metolachlor.

    C. Response to Comments

    One comment was received in response to the notice of filing. The commenter was against the establishment of any tolerances for S-metolachlor and stated in part “allow zero tolerance. Allow zero residue” and “no animals or people should be eating any toxic chemicals.”

    Although the Agency recognizes that some individuals believe that pesticides should be banned on agricultural crops, the existing legal framework provided by section 408 of the Federal Food, Drug and Cosmetic Act (FFDCA) authorizes EPA to establish tolerances when it determines that the tolerance is safe. Upon consideration of the validity, completeness, and reliability of the available data as well as other factors the FFDCA requires EPA to consider, EPA has determined that these S-metolachlor tolerances are safe. The commenter has provided no information supporting a contrary conclusion.

    D. Revisions to Petitioned-For Tolerances

    Although the petitioner requested a tolerance on sugarcane at 0.4 ppm, EPA is establishing the tolerance at 0.20 ppm based on available field trial data and the use of average values in the Organization for Economic Cooperation and Development (OECD) tolerance calculation procedure instead of every individual sample that the petitioner used. The Agency is also establishing the tolerance for “sugarcane, cane” to be consistent with its food and feed commodity vocabulary.

    V. Conclusion

    Therefore, tolerances are established for residues of S-metolachlor in or on sugarcane, cane at 0.20 ppm and sugarcane molasses at 1.5 ppm.

    VI. Statutory and Executive Order Reviews

    This action establishes tolerances under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), nor is it considered a regulatory action under Executive Order 13771, entitled “Reducing Regulations and Controlling Regulatory Costs” (82 FR 9339, February 3, 2017). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq.), nor does it require any special considerations under Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).

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

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

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

    VII. Congressional Review Act

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

    List of Subjects in 40 CFR Part 180

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

    Dated: February 28, 2018. Michael L. Goodis, Director, Registration Division, Office of Pesticide Programs.

    Therefore, 40 CFR chapter I is amended as follows:

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

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

    2. In § 180.368, add alphabetically entries for “Sugarcane, cane” and “Sugarcane, molasses” to the table in paragraph (a)(2) to read as follows:
    § 180.368 Metolachlor; tolerances for residues.

    (a)(2) * * *

    Commodity Parts per
  • million
  • *    *    *    *    *     Sugarcane, cane 0.20 Sugarcane, molasses 1.5 *    *    *    *    *    
    [FR Doc. 2018-05641 Filed 3-20-18; 8:45 am] BILLING CODE 6560-50-P
    FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 73 [MB Docket No. 13-249; FCC 17-119] Revitalization of the AM Radio Service AGENCY:

    Federal Communications Commission.

    ACTION:

    Final rule; announcement of effective date.

    SUMMARY:

    In this document, the Federal Communications Commission (Commission) announces that the Office of Management and Budget (OMB) has approved, for a period of three years, information collection requirements adopted in the Commission's Third Report and Order, FCC 17-119. This document is consistent with the Third Report and Order, which stated that the Commission would publish a document in the Federal Register announcing OMB approval and the effective date of the rules.

    DATES:

    The rule amendments to 47 CFR 73.151(c)(1)(ix) and (x) and (c)(3), 47 CFR 73.154(a), and 47 CFR 73.155, published at 82 FR 51161, November 3, 2017, are effective on March 21, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Cathy Williams by email at [email protected] and telephone at (202) 418-2918.

    SUPPLEMENTARY INFORMATION:

    This document announces that, on March 8, 2018, OMB approved information collection requirements contained in the Commission's Report and Order, FCC 17-119, published at 82 FR 51161. The OMB Control Number is 3060-0991. The Commission publishes this notice as an announcement of the effective date of those information collection requirements.

    Synopsis

    As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), the FCC is notifying the public that it received OMB approval on March 8, 2018, for the information collection requirements contained in 47 CFR 73.151(c)(1)(ix) and (x) and (c)(3), 47 CFR 73.154(a), and 47 CFR 73.155, as amended, in the Commission's Report and Order, FCC 17-119. Under 5 CFR part 1320, an agency may not conduct or sponsor a collection of information unless it displays a current, valid OMB Control Number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a current, valid OMB Control Number. The OMB Control Number is 3060-0991. The foregoing notice is required by the Paperwork Reduction Act of 1995, Public Law 104-13, October 1, 1995, and 44 U.S.C. 3507.

    The total annual reporting burdens and costs for the respondents are as follows:

    OMB Control Number: 3060-0991.

    OMB Approval Date: March 8, 2018.

    OMB Expiration Date: March 31, 2021.

    Title: AM Measurement Data.

    Form Number: N/A.

    Respondents: Business or other for-profit entities.

    Number of Respondents and Responses: 1,800 respondents; 3,135 responses.

    Estimated Time per Response: 0.50 hours-25 hours.

    Frequency of Response: Recordkeeping requirement, Third Party disclosure requirement, On occasion reporting requirement.

    Obligation To Respond: Required to obtain or retain benefits. The statutory authority for this collection of information is contained in Sections 151, 152, 154(i), 303, and 307 of the Communications Act of 1934, as amended.

    Total Annual Burden: 20,200 hours.

    Total Annual Cost: $1,131,500.

    Nature and Extent of Confidentiality: There is no need for confidentiality treatment with this collection of information.

    Privacy Act Impact Assessment: No impact(s).

    Needs and Uses: The Commission revised this information collection to reflect the September 22, 2017, adoption of the Third Report and Order in MB Docket No. 13-249, FCC 17-119, In the Matter of Revitalization of AM Radio Service (AMR Third R&O). Specifically, the AMR Third R&O removed certain requirements and associated burdens contained in 47 CFR 73.151, 73.154, and 73.155. To the extent the revisions affect reporting or record-keeping requirements, they reduce those burdens for AM broadcasters operating with directional antenna arrays. The Commission received approval for the revised information collection requirements contained under this collection from the Office of Management and Budget (OMB).

    In the 2015 AM revitalization proceeding, the FCC proposed streamlining certain technical requirements to assist AM broadcasters in providing radio service to consumers. For example, almost 40 percent of all AM broadcast stations must employ directional antenna arrays during some or all of the broadcast day in order to avoid interference with other AM stations. Maintaining a directional signal pattern can be technically complex, time-consuming, and expensive. Such stations are subject to a variety of rules requiring signal strength measurements and other engineering analyses to ensure compliance with their authorizations.

    In the AMR Third R&O, the FCC eliminated, clarified, or eased several of the rules governing AM stations using directional antenna arrays. First, the FCC revises 47 CFR 73.154(a) to relax the rule on submission of partial proofs of performance of directional AM antenna arrays by eliminating the requirement to take measurements on non-monitored radials adjacent to monitored radials. Next, the FCC modified several rules pertaining to AM stations that use Method of Moments (MoM) models of directional array performance. MoM modeling allows broadcasters to verify antenna system performance through computer modeling, as opposed to sending engineers into the field to take field strength measurements. Thus, a proof using a MoM model is less expensive than taking field strength measurements of an AM station's directional pattern. Specifically, the FCC: (1) Revised 47 CFR 73.151(c)(1)(ix) to eliminate the requirement of obtaining a registered surveyor's certification, provided that no new towers are being added to an existing AM array and the tower geometry is not changed; (2) added 47 CFR 73.151(c)(1)(x) to extend the exemption from having to file a new proof with the FCC to any AM tower modification that does not affect the modeled values used in the previously submitted license proof; (3) revised 47 CFR 73.151(c)(3) to retain the current requirement for submission of reference field strength measurements in the initial license application, but to eliminate the requirement to submit additional reference field strength measurements in subsequent license applications; and (4) revised 47 CFR 73.155 to eliminate the requirement for biennial recertification of the performance of a directional pattern licensed pursuant to a MoM proof, except when system components have been repaired or replaced.

    Federal Communications Commission. Marlene H. Dortch, Secretary.
    [FR Doc. 2018-05741 Filed 3-20-18; 8:45 am] BILLING CODE 6712-01-P
    DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 91 [Docket No. FWS-HQ-MB-2015-0161; FXMB 12330900000//189//FF09M13200] RIN 1018-BB23 Federal Migratory Bird Hunting and Conservation Stamp (Duck Stamp) Contest Regulations AGENCY:

    Fish and Wildlife Service, Interior.

    ACTION:

    Final rule.

    SUMMARY:

    The U.S. Fish and Wildlife Service (Service or we) is revising regulations governing the annual Federal Migratory Bird Hunting and Conservation Stamp (Duck Stamp) Contest, also known as the Federal Duck Stamp Contest (Contest). We are updating our contact information, updating the common and scientific names of species on our list of Contest design subjects, correcting minor grammar errors, making changes to recognize technological advances in stamp design and printing, and instituting changes to design elements and judging requirements specific to the 2018 Contest.

    DATES:

    This rule is effective March 21, 2018.

    ADDRESSES:

    You can view the 2018 Contest Artist Brochure by one of the following methods:

    Duck Stamp Contest and Event Information: https://www.fws.gov/birds/get-involved/duck-stamp/duck-stamp-contest-and-event-information.php.

    • Request a copy by contacting the person listed under FOR FURTHER INFORMATION CONTACT.

    FOR FURTHER INFORMATION CONTACT:

    Suzanne D. Fellows, Federal Duck Stamp Office, U.S. Fish and Wildlife Service, Department of the Interior, MS:MB, 5275 Leesburg Pike, Falls Church, VA 22041-3803; (703) 358-2145; [email protected].

    SUPPLEMENTARY INFORMATION: Background

    On March 16, 1934, Congress passed, and President Franklin D. Roosevelt signed, the Migratory Bird Hunting Stamp Act. Popularly known as the Duck Stamp Act, it required all waterfowl hunters 16 years or older to buy a stamp annually. The revenue generated from the sale of the stamp is used to buy or lease waterfowl habitat.

    Since its enactment, the Federal Duck Stamp Program has become internationally known as one of the most popular and successful conservation programs ever initiated. Today, some 1.5 million stamps are sold each year and, as of 2017, Federal Duck Stamps have generated more than $1 billion for the preservation of approximately 6 million acres of waterfowl habitat in the United States. Numerous other birds, mammals, fish, reptiles, and amphibians have similarly prospered because of habitat conservation made possible by the program. Many of the Nation's endangered and threatened species find food or shelter on refuges preserved by Duck Stamp funds. Moreover, protected wetlands help dissipate storm water runoff, purify water supplies, store flood water, and nourish fish hatchlings important for sport and commercial fishermen.

    The first Federal Duck Stamp was designed by Jay N. “Ding” Darling, a nationally known political cartoonist for the Des Moines Register and a noted hunter and wildlife conservationist. In subsequent years, noted wildlife artists were asked to submit designs. The first Federal Duck Stamp Contest was opened in 1949 to any U.S. artist who wished to enter. Regulations governing the Contest appear at 50 CFR part 91.

    To select each year's design, a panel of noted art, waterfowl, and philatelic authorities is appointed by the Secretary of the Interior (Secretary). Winners receive no compensation for their work except for a pane of their stamps signed by the Secretary. However, artists maintain the copyright to their artwork and may sell prints of their designs, which are sought by hunters, conservationists, and art collectors.

    An annual rules brochure is published to announce the Contest and provide artists with official entry forms, a list of five or fewer eligible species that may be depicted, and instructions for submitting entries. Any changes to the Contest regulations must be completed by going through the formal rulemaking process.

    On February 11, 2016, we published a proposed rule (81 FR 7279) to revise the Duck Stamp Contest regulations. At that time, we proposed to update or correct contact information and other minor spelling or grammar errors, as well as specify a new requirement to include a second, appropriate, migratory bird species in the artwork design beginning with the 2016 Contest. However, we chose not to go forward with the proposed new Contest requirement.

    On November 28, 2017, we published a revised proposed rule (82 FR 56201), which included further updates to the names of eligible species, updates to recognize technological advances in stamp design and printing, and a proposed requirement specific to the 2018 Contest. For the 2018 Contest, this proposed change would require the inclusion of waterfowl hunting-related accessories and/or themes in all qualified 2018 Contest entries; by portraying the theme “celebrating our waterfowl hunting heritage,” we would recognize the role of hunters in raising over $1 billion for waterfowl habitat conservation through the sale of Duck Stamps. The revised proposed rule opened a 30-day public comment period and invited comments on the proposed changes from artists, stamp collectors, and other members of the public.

    Summary of Public Comments and Responses

    We received 60 comments on the November 28, 2017, proposed rule (82 FR 56201). Several commenters simply expressed disapproval or support for the 2018 Contest rules. However, the majority had specific comments, which are grouped under appropriate subject-matter headings and addressed below.

    Update to Eligible Species List

    (1) Comment: One commenter thought that it was not necessary to include the scientific names of eligible species.

    Service Response: We provide both common and scientific names of birds, as recognized by the American Ornithological Union, when publishing rules and when discussing species in official documents. This practice helps avoid confusion among readers who may use a different colloquial name for the species. These changes will be published in our final rule as proposed.

    Proposed Requirements Specific to the 2018 Contest

    (2) Comment: Several commenters indicated that they were in favor of the requirement that the 2019-20 Duck Stamp reference the theme “celebrating our waterfowl hunting heritage”. Many believed that it was important and long over-due to recognize hunters' contributions to conservation and the waterfowl hunting heritage.

    Several other commenters expressed that they were against the proposed change for the 2018 Contest. Most believed that the current Contest regulations worked well to ensure that the best artwork is selected each year for the Federal Duck Stamp. Several commenters stated their belief that the Federal Duck Stamp already celebrates hunting, as the inclusion of hunting-related accessories, hunters, and hunting scenes are already permitted as part of the stamp design. Several believed that making such inclusion mandatory would jeopardize the stamp's appeal to non-hunters who are interested in purchasing the stamp as a way of supporting conservation. Many of those against the change for the 2018 Contest did not want the inclusion of hunting-related items to detract from the primary waterfowl focus of the stamp.

    Other commenters expressed no strong opinion on the proposed change but were not supportive of a permanent change.

    Service Response: We recognize that responses to the change proposed for the 2018 Contest are mixed. However, we believe this one-time change to recognize the contributions of hunters and hunting to waterfowl conservation is appropriate and will not negatively impact the Stamp or the Contest; therefore, we are making that proposal, which is specific only to the 2018 Contest, final in this rule.

    Inclusion of a Theme

    (3) Comment: Two commenters urged that any changes to, or requirements for, a theme be done only with careful consideration of all aspects of the stamp program, artists, and purchasers of the stamp. There were also suggestions that art changes be “recommended” rather than mandatory. The suggestion was made that proposed themes should have an intrinsic biological or conservation message. Several other commenters expressed their opinion that an appropriate Contest theme could bring increased exposure to the program, while other commenters believed that the inclusion of an annual theme would make a poor quality stamp and would not significantly improve the resulting design. Several also suggested that the inclusion of objects (such as humans or dogs) to satisfy the requirement of addressing the theme would detract from the natural beauty of the depicted waterfowl.

    Service Response: The concept of having a theme to the Contest is not new. Previous themes have included “Retrievers Save Game,” “Wildlife Needs Water: Preserve Wetlands,” “Habitat Produces Ducks,” and “Ducks for Recreation.” Different themes have also been used in marketing the annual stamp. The extent to which the 2019-20 theme and stamp increases exposure to the Federal Duck Stamp Program will be contingent upon the ability of the Service and its partners to share our message with traditional audiences and others.

    Regarding the inclusion of objects in the stamps, there are several examples of previous stamps that contain objects such as decoys, dogs, and hunters that have made memorable stamps. The judges' mandate has been, and will remain, that they choose the design that will best make an attractive Federal Duck Stamp.

    Hunter Recognition

    (4) Comment: Several commenters approved of recognizing our hunting heritage and applauded the Service for recognizing the huge financial commitment hunters annually put toward wildlife conservation. Several other commenters believed that the best way to keep support for ethical hunting is to actively educate and show others that hunters also care about wildlife and healthy ecosystems.

    Service Response: The recognition of waterfowl hunters' contributions to wildlife and habitat conservation will further the Department of the Interior's priorities of hunter retention and recruitment, and of increased sportsperson access on public lands. By focusing on the long heritage of waterfowl hunting on the 2019-20 Federal Duck Stamp, we acknowledge the contributions of other hunters, anglers, and shooters as conservationists.

    Further, upon its conception in 1934, the proper name of the Federal Duck Stamp was the “Migratory Bird Hunting Stamp.” The name became “Migratory Bird Hunting and Conservation Stamp” with the 1977-78 stamp to reflect the broader conservation aspects and primary goal of the stamp. While the theme and inclusion of a hunting-related accessory and/or scene will be mandatory in the 2019-20 Federal Duck Stamp design, the central and dominant aspect is still a live portrayal of one of the five eligible waterfowl species.

    Raising Funds for Wildlife Habitat Conservation

    (5) Comment: Commenters questioned whether the proposed change would increase interest in the Duck Stamp Program and boost the annual sale of stamps. Several believed that recognizing the contributions of one group over others could be divisive, and the hunting theme could alienate non-consumptive buyers, such as stamp collectors or those expressing support for the National Wildlife Refuge System. Although these discretionary purchasers obtain the stamp for reasons other than “because it is mandatory,” their contribution also goes to the conservation of habitat. Lastly, several commenters mentioned the lack of a solid marketing strategy for Duck Stamps and the need for a marketing company to provide direction on boosting sales.

    Service Response: The Federal Duck Stamp has been mandatory to hunt waterfowl for the past 85 years, and has been incredibly successful in conserving habitat for wildlife. By using the theme “celebrating our waterfowl hunting heritage” on the 2019-20 stamp, we are recognizing the conservation contributions (over $1 billion) made by millions of waterfowl hunters over this period.

    We appreciate those who voluntarily help fund wildlife habitat conservation through their purchase of Federal Duck Stamps and will continue to encourage non-consumptive wildlife resource users, stamp collectors, and other conservationists to purchase Federal Duck Stamps to support migratory bird habitat conservation. Over the past several years, there has been a concerted effort to encourage purchase of the stamp by birders and other conservationists. We hope that current non-consumptive purchasers will recognize that hunting is part of the tradition behind the Federal Duck Stamp and will continue to support the conservation afforded by stamp sales. The inclusion of the “celebrating our waterfowl hunting heritage” theme provides the opportunity to present information on the history and tradition of waterfowl hunting in the United States. Lastly, comments regarding marketing the Duck Stamp are beyond the scope of this rule.

    Artist Issues

    (6) Comment: Several artists said that they will not be able to properly execute their designs between the time the rules are finalized for 2018 and the Contest due date. Most artists expressed resentment of changes that are not finalized more than 12 months ahead of the beginning of the Contest year and would prefer that we provide final Contest rules and each year's eligible species list at least 3 years ahead of the annual Contest open date. Adding mandatory elements with less than a year to research and gather reference materials, design, and then execute their entries will prevent some artists from entering the 2018 Contest.

    Several commenters were upset with changing the waterfowl species previously advertised as being eligible.

    Several artists felt that the mandatory “inclusion of a hunting accessory” would alienate or discourage many artists. By changing hunting elements from optional to mandatory, several artists stated that they will not enter the Contest on principle. Not all artists are waterfowl hunters or are part of the hunting culture, so they expressed the opinion that they would be at a severe disadvantage as to what qualifies as a hunting accessory. It was suggested that “hunting accessories” be kept as “optional” and the rules to read “recommended but not mandatory.”

    Service Response: We understand the artists' desire to have rules available to them as early as possible and appreciate the amount of preparation and research needed before artists can design and execute their entries. Unfortunately, we are unable to provide final rules 12 to 36 months ahead of the relevant Contest date.

    Regarding the eligible species list, the five “tentative” species first listed for 2018, as advertised in September 2016, were not considered the most appropriate species for depiction in a stamp illustrating the proposed “celebrating our waterfowl hunting heritage” theme. Five new species were selected for the 2018 Contest and advertised in October 2017, well ahead of the publication of the annual rules brochure. Reference materials for these five relatively common, widespread waterfowl species are readily available to most wildlife artists.

    The change in species was advertised on our Duck Stamp website, as well as communicated to individual artists who had participated in the previous years' Contests and who had provided an active email address. Future years' eligible species lists are considered and denoted as “tentative” until the publication of the annual Contest brochure (usually in January).

    It is not our intention to alienate potential Duck Stamp Contest artists. We hope that the proposed theme will encourage both artists and stamp purchasers to learn more about the rich tradition of waterfowl hunting. Decoys and hunting dogs are among the examples of elements that can be included to satisfy this requirement.

    Artist Recognition

    (7) Comment: To increase artist participation in the Contest, several commenters suggested that small prizes such as ribbons or other recognition items of low monetary value be awarded to Contest finalists.

    Service Response: We will consider recognizing all artists whose entry successfully enters the final round of Contest judging. We may provide a ribbon or other small recognition item. All artists who enter the Contest will continue to receive a letter of appreciation from the Duck Stamp Office with the return of their artwork.

    Entry Fees and Entries

    (8) Comment: Several artists suggested lowering the entry fee to encourage additional artists to enter. Others believed that we should limit the number of times a person can win to twice.

    Service Response: At the current fee of $125 per entry, approximately 500 entries would be needed to run the Contest entirely from artist entry fees. Due to the costs associated with the Contest, we do not anticipate lowering entry fees. We remain committed to providing a prestigious, well-ordered Contest.

    Regarding the limiting of entries, in the 85-year history of the Program, there have been 60 different artists whose work has graced the Federal Duck Stamp. Thirteen artists have illustrated two or more stamps (36 of 70 open competitions). We do not anticipate changing the number of times that an artist can participate in the Contest, but we will continue to require winning artists to wait 3 years before entering again.

    Judging Requirement/Scoring Assessment for 2018 Contest

    (9) Comment: Three commenters were in opposition to the following proposed change: In 2018 only, it will also be mandatory that all selected judges have an understanding and appreciation of the waterfowl hunting heritage and be able to recognize waterfowl hunting accessories. The commenters believe that only the “best art for the stamp” should be the basis for the judges' decision and further believe that while the judging panel overall should have the necessary qualifications, individual judge selection should not be limited by a single restrictive requirement. One commenter expressed strong support that the judges have an understanding and appreciation for waterfowl hunting heritage.

    Service Response: We will develop a slate of qualified nominees to be judges that will be forwarded to the Secretary of the Interior, or his designee, for concurrence. All potential judges will be deemed as qualified if they have one or more of the following qualifications: Recognized art credentials; knowledge of the anatomical makeup and the natural habitat of the eligible waterfowl species; an understanding of the wildlife sporting world in which the Duck Stamp is used; an awareness of philately and the role the Duck Stamp plays in stamp collecting; and demonstrated support for the conservation of waterfowl and wetlands through active involvement in the conservation community.

    Duck Stamp Collectors

    (10) Comment: Comments from those self-identifying as Duck Stamp collectors were mixed. Some believed that their collecting habits would decrease if the traditional Duck Stamp design was radically altered, while others believed that some variation from the standard design could be well accepted.

    Service Response: As purchasers of the Federal Duck Stamp, collectors are valued customers and conservation partners. We do not believe that the winning artwork will create a stamp that will be radically different from historical stamps. We do not anticipate this rule will greatly impact whether or not collectors will purchase the 2019-20 Duck Stamp.

    Eligible Species and Other Themes

    (11) Comment: Several people commented on the species list of primary subjects eligible for selection each year, including a suggestion to rotate winning species to the bottom of the eligible species list since multiple stamps have featured the mallard, Canada goose, and wood duck. Another commenter suggested it was time to update the overall list from which each year's species are chosen, while one suggested different stamps for different flyways or U.S. territories might be a better way to increase funds for conservation.

    Commenters also proposed several other themes with different required elements. A suggestion was also made that to require an “old-style black-and-white” version of the stamp for one year in order to highlight the history of the stamp and the role of collectors.

    Service Response: Five or fewer species of waterfowl are chosen to be eligible for each year's Contest from a list of native North American waterfowl species. Artists are instructed to choose at least one of these eligible species as their dominant design feature. Canvasback and mallard have each appeared on six Federal Duck Stamps, wood duck on three. Twenty-four species have only been depicted once. Many of these 24 have been among the 5 eligible species provided annually as subjects and have been represented in the top three designs for many Contests.

    Regarding the comment about using different stamps in different Flyways, while we agree that each Flyway may have preferred species for a Federal Duck Stamp, the cost and time required to produce four annual stamps would result in the loss of funds available for conservation. Likewise, the purpose of this rule is not to develop alternate themes, although we may consider some of these proposals in the future.

    Carrier Design

    (12) Comment: Several commenters indicated that providing recognition of and information on hunter contributions to wildlife conservation would be a positive thing for those who do not understand or who oppose hunting. Suggestions were made to include the proposed theme on the carrier or back of the stamp rather than as part of the stamp design itself.

    Service Response: The carrier of the stamp—the area around the actual stamp on the pane of one, dollar-bill-size, pressure-sensitive adhesive stamp—is created by the stamp designer with input from the artist and the Federal Duck Stamp Office. It is the current practice of the Duck Stamp Office to include educational and celebratory information on the carrier of the stamp and on other products.

    Depiction of Firearms

    (13) Comment: Several commenters expressed negative opinions regarding hunting, as well as the possible representation of firearms as part of the stamp design.

    Service Response: Issues regarding gun violence are beyond the scope of this rule. Hunting is a recognized wildlife management tool, and the Service supports the legal and ethical right of lawful hunters to use firearms to hunt wildlife. The 2018 Contest entry may include other appropriate items to fulfill the thematic requirement that a waterfowl hunting-related accessory and/or scene be included in a 2018 contestant's design.

    Summary of Changes From the November 28, 2017, Proposed Rule

    This rule includes no significant changes based on public comments to the proposed rule published on November 28, 2017 (82 FR 56201).

    As an administrative update, this rule does newly specify the delivery address of artwork submitted to the Contest at 50 CFR 91.16(b).

    Amendments to Existing Regulations

    This rule contains the following changes to the regulations:

    • We update contact information at §§ 91.1(b), 91.11, and 91.16(b).

    • We update the common and scientific names and ordering of eligible species listed at § 91.4.

    • We set forth the 2018 Contest restriction on subject matter for entries at § 91.14(b).

    • We remove and reserve § 91.15.

    • We set forth an additional judge qualification for the 2018 Contest at § 91.21(b)(2).

    • We set forth language at § 91.23(b) to reflect the mandatory theme to be applied in the 2018 Contest.

    Actions specific to the 2018 Contest will be valid only for the 2018 Contest; they will no longer be valid after September 16, 2018. We will engage in rulemaking sometime after September 16, 2018, to remove the requirements specific to the 2018 Contest from the regulations.

    Required Determinations

    For this final rule, we affirm the following required determinations provided in our November 28, 2017, proposed rule (82 FR 56201):

    • Regulatory Flexibility Act (5 U.S.C. 601 et seq.); and

    • Executive Order (E.O.) 13771.

    Further, for this final rule, we affirm the following required determinations provided in our February 11, 2016, proposed rule (81 FR 7279):

    • Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 804(2));

    • Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.);

    • Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.);

    • National Environmental Policy Act (42 U.S.C. 4321 et seq.); and

    • Executive Orders 12630, 12866, 12988, 13132, 13175, 13211, and 13563.

    List of Subjects in 50 CFR Part 91

    Hunting, Wildlife.

    Regulation Promulgation

    For the reasons stated in the preamble, we amend 50 CFR part 91, as set forth below:

    PART 91—MIGRATORY BIRD HUNTING AND CONSERVATION STAMP CONTEST 1. The authority citation for part 91 continues to read as follows: Authority:

    5 U.S.C. 301; 16 U.S.C. 718j; 31 U.S.C. 9701.

    2. Amend § 91.1(b) by revising the third sentence to read as follows:
    § 91.1 Purpose of regulations.

    (b) * * * These documents can also be downloaded from our website at: http://www.fws.gov/birds/get-involved/duck-stamp.php.

    3. Revise §  91.4 to read as follows:
    §  91.4 Eligible species.

    Five or fewer of the species listed below will be identified as eligible each year; those eligible species will be provided to each contestant with the information provided in § 91.1.

    (a) Whistling-Ducks. (1) Fulvous Whistling-Duck (Dendrocygna bicolor).

    (2) Black-bellied Whistling-Duck (Dendrocygna autumnalis).

    (b) Geese. (1) Emperor Goose (Anser canagicus).

    (2) Snow Goose (including “white” and “blue” morphs) (Anser caerulescens).

    (3) Ross's Goose (Anser rossii).

    (4) Greater White-fronted Goose (Anser albifrons).

    (5) Brant (Branta bernicla).

    (6) Cackling Goose (Branta hutchinsii).

    (7) Canada Goose (Branta canadensis).

    (c) Swans. (1) Trumpeter Swan (Cygnus buccinator).

    (2) Tundra Swan (Cygnus columbianus).

    (d) Dabbling Ducks. (1) Wood Duck (Aix sponsa).

    (2) Blue-winged Teal (Spatula discors).

    (3) Cinnamon Teal (Spatula cyanoptera).

    (4) Northern Shoveler (Spatula clypeata).

    (5) Gadwall (Mareca strepera).

    (6) American Wigeon (Mareca americana).

    (7) Mallard (Anas platyrhynchos).

    (8) American Black Duck (Anas rubripes).

    (9) Mottled Duck (Anas fulvigula).

    (10) Northern Pintail (Anas acuta).

    (11) Green-winged Teal (Anas crecca).

    (e) Diving Ducks. (1) Canvasback (Aythya valisineria).

    (2) Redhead (Aythya americana).

    (3) Ring-necked Duck (Aythya collaris).

    (4) Greater Scaup (Aythya marila).

    (5) Lesser Scaup (Aythya affinis).

    (f) Sea-Ducks. (1) Steller's Eider (Polysticta stelleri).

    (2) Spectacled Eider (Somateria fischeri).

    (3) King Eider (Somateria spectabilis).

    (4) Common Eider (Somateria mollissima).

    (5) Harlequin Duck (Histrionicus histrionicus).

    (6) Surf Scoter (Melanitta perspicillata).

    (7) White-winged Scoter (Melanitta fusca).

    (8) Black Scoter (Melanitta americana).

    (9) Long-tailed Duck (Clangula hyemalis).

    (10) Bufflehead (Bucephala albeola).

    (11) Common Goldeneye (Bucephala clangula).

    (12) Barrow's Goldeneye (Bucephala islandica).

    (g) Mergansers. (1) Hooded Merganser (Lophodytes cucullatus).

    (2) Common Merganser (Mergus merganser).

    (3) Red-breasted Merganser (Mergus serrator).

    (h) Stiff Tails. (1) Ruddy Duck (Oxyura jamaicensis).

    (2) [Reserved]

    4. Revise § 91.11 to read as follows:
    § 91.11 Contest opening date and entry deadline.

    The contest officially opens on June 1 of each year. Entries must be postmarked no later than midnight, August 15. For the latest information on contest time and place as well as all deadlines, please visit our website at http://www.fws.gov/birds/get-involved/duck-stamp.php or call (703) 358-2145.

    5. Revise §  91.14 to read as follows:
    §  91.14 Restrictions on subject matter for entry.

    (a) General restrictions. A live portrayal of any bird(s) of the five or fewer identified eligible waterfowl species must be the dominant feature of the design. The design may depict more than one of the eligible species. The judges' overall mandate is to select the best design that will make an interesting, useful, and attractive duck stamp that will be accepted and prized by hunters, stamp collectors, conservationists, and others. The design must be the contestant's original hand-drawn creation. The entry design may not be copied or duplicated from previously published art, including photographs, or from images in any format published on the internet. Photographs, computer-generated art, or art produced from a computer printer or other computer/mechanical output device (airbrush method excepted) are not eligible to be entered into the contest and will be disqualified. An entry submitted in a prior contest that was not selected for a Federal or State stamp design may be submitted in the current contest if the entry meets the criteria set forth in this section.

    (b) The 2018 Contest. In addition to the restrictions set forth in paragraph (a) of this section, in 2018 only, designs will also be required to include appropriate hunting-related accessories and/or scenes celebrating the Federal Duck Stamp's long-standing connection as part of our Nation's waterfowl hunting heritage and the contributions to conservation made by waterfowl hunters. Designs may include, but are not limited to, hunting dogs, hunting scenes, hunting equipment, waterfowl decoys, managed waterfowl areas as the background of habitat scenes, or other designs that represent our waterfowl hunting heritage. The design chosen will clearly meet the theme of “celebrating our waterfowl hunting heritage.”

    §  91.15 [Removed and Reserved]
    6. Remove and reserve §  91.15.
    7. Revise § 91.16(b) to read as follows:
    § 91.16 Submission procedures for entry.

    (b) Each entry should be appropriately wrapped to protect the artwork and then either hand-delivered or sent by registered mail, certified mail, express mail, or overnight delivery service to: Federal Duck Stamp Contest, U.S. Fish and Wildlife Service, MS: MB, 5275 Leesburg Pike, Falls Church, VA 22041.

    8. In §  91.21, designate the text of paragraph (b) as paragraph (b)(1) and add a heading for newly designated paragraph (b)(1) and paragraph (b)(2) to read as follows:
    §  91.21 Selection and qualification of contest judges.

    (b) Qualifications—(1) General qualifications. * * *

    (2) The 2018 Contest. In 2018 only, it will also be mandatory that all selected judges have an understanding and appreciation of the waterfowl hunting heritage and be able to recognize waterfowl hunting accessories.

    9. Revise §  91.23 to read as follows:
    §  91.23 Scoring criteria for contest.

    (a) General criteria. Entries will be judged on the basis of anatomical accuracy, artistic composition, and suitability for reduction in the production of a stamp.

    (b) The 2018 Contest. In 2018 only, entries will also be judged on how well they illustrate the theme of “celebrating our waterfowl hunting heritage.”

    Dated: February 27, 2018. Jason Larrabee, Principal Deputy Assistant Secretary for Fish and Wildlife and Parks, exercising the authority of the Assistant Secretary for Fish and Wildlife and Parks.
    [FR Doc. 2018-05588 Filed 3-20-18; 8:45 am] BILLING CODE 4333-15-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 622 [Docket No. 120404257-3325-02] RIN 0648-XF971 Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 2018 Commercial Accountability Measure and Closure for South Atlantic Golden Tilefish AGENCY:

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

    ACTION:

    Temporary rule; closure.

    SUMMARY:

    NMFS implements an accountability measure for the commercial longline component for golden tilefish in the exclusive economic zone (EEZ) of the South Atlantic. Commercial longline landings for golden tilefish are projected to reach the longline component's commercial quota on March 25, 2018. Therefore, NMFS closes the commercial longline component of golden tilefish in the South Atlantic EEZ on March 25, 2018. This closure is necessary to protect the golden tilefish resource.

    DATES:

    This rule is effective 12:01 a.m., local time, March 25, 2018, until 12:01 a.m., local time, January 1, 2019.

    FOR FURTHER INFORMATION CONTACT:

    Mary Vara, NMFS Southeast Regional Office, telephone: 727-824-5305, email: [email protected].

    SUPPLEMENTARY INFORMATION:

    The snapper-grouper fishery of the South Atlantic includes golden tilefish and is managed under the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region (FMP). The FMP was prepared by the South Atlantic Fishery Management Council (Council) and is implemented by NMFS under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.

    Amendment 18B to the FMP established a longline endorsement program for the commercial golden tilefish component of the snapper-grouper fishery and allocated the commercial golden tilefish annual catch limit (ACL) between two gear groups, as commercial quota: The longline and hook-and-line components (78 FR 23858; April 23, 2013). On January 2, 2018, NMFS published a final temporary rule to implement interim measures to reduce overfishing of golden tilefish in Federal waters of the South Atlantic (83 FR 65). As a result of the interim measures, the total ACL for golden tilefish for the 2018 fishing year is 323,000 lb (146,510 kg), gutted weight, and the commercial ACL is 313,310 lb (142,115 kg), gutted weight. The current commercial quota for the 2018 fishing year for the longline component is 234,982 lb (106,586 kg), gutted weight. The interim measures implemented through the temporary final rule are effective through July 1, 2018. NMFS is evaluating extension of the interim measures for up to an additional 186 days.

    Under 50 CFR 622.193(a)(1)(ii), NMFS is required to close the commercial longline component for golden tilefish when the longline component's commercial quota has been reached, or is projected to be reached, by filing a notification to that effect with the Office of the Federal Register. After the commercial quota for the longline component is reached or projected to be reached, golden tilefish may not be commercially fished or possessed by a vessel with a golden tilefish longline endorsement. Based on projected landings, NMFS has determined that the commercial quota for the golden tilefish longline component in the South Atlantic will be reached on March 25, 2018. Accordingly, the commercial longline component of South Atlantic golden tilefish is closed effective 12:01 a.m., local time, March 25, 2018.

    During the commercial longline closure, golden tilefish may still be harvested commercially using hook-and-line gear. However, a vessel with a golden tilefish longline endorsement is not eligible to fish for or possess golden tilefish using hook-and-line gear under the hook-and-line commercial trip limit, as specified in 50 CFR 622.191(a)(2)(ii). The operator of a vessel with a valid Federal commercial vessel permit for South Atlantic snapper-grouper and a valid commercial longline endorsement for golden tilefish with golden tilefish on board must have landed and bartered, traded, or sold such golden tilefish prior to 12:01 a.m., local time, March 25, 2018. During the commercial longline closure, the recreational bag limit and possession limits specified in 50 CFR 622.187(b)(2)(iii) and (c)(1), respectively, apply to all harvest or possession of golden tilefish in or from the South Atlantic EEZ by a vessel with a golden tilefish longline endorsement. The sale or purchase of longline-caught golden tilefish taken from the EEZ is prohibited during the commercial longline closure. The prohibition on sale or purchase does not apply to the sale or purchase of longline-caught golden tilefish that were harvested, landed ashore, and sold prior to 12:01 a.m., local time, March 25, 2018, and those that were held in cold storage by a dealer or processor. Additionally, the recreational bag and possession limits and the sale and purchase provisions of the commercial closure apply to a person on board a vessel with a golden tilefish longline endorsement, regardless of whether the golden tilefish are harvested in state or Federal waters, as specified in 50 CFR 622.190(c)(1).

    Classification

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

    This action is taken under 50 CFR 622.193(a)(1)(v) and is exempt from review under Executive Order 12866.

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

    This action responds to the best scientific information available. The Assistant Administrator for NOAA Fisheries (AA) finds that the need to immediately implement this action to close the commercial longline component for golden tilefish constitutes good cause to waive the requirements to provide prior notice and opportunity for public comment pursuant to the authority set forth in 5 U.S.C. 553(b)(B), as such procedures for this temporary rule would be unnecessary and contrary to the public interest. Such procedures are unnecessary, because the regulations at 50 CFR 622.193(a)(1)(v) have already been subject to notice and comment, and all that remains is to notify the public of the closure. Prior notice and opportunity for public comment on this action are contrary to the public interest, because there is a need to immediately implement this action to protect the golden tilefish resource since the capacity of the fishing fleet allows for rapid harvest of the commercial quota for the longline component. Prior notice and opportunity for public comment would require time and would potentially result in a harvest well in excess of the established commercial quota for the longline component.

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

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: March 16, 2018. Emily H. Menashes, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2018-05714 Filed 3-16-18; 4:15 pm] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 622 [Docket No. 130403320-4891-02] RIN 0648-XG056 Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Snapper-Grouper Resources of the South Atlantic; 2018-2019 Recreational Fishing Season for Black Sea Bass AGENCY:

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

    ACTION:

    Temporary rule; recreational season length.

    SUMMARY:

    NMFS announces that the length of the recreational fishing season for black sea bass in the exclusive economic zone (EEZ) of the South Atlantic will extend throughout the species' 2018-2019 fishing year. Announcing the length of recreational season for black sea bass is one of the accountability measures (AMs) for the recreational sector. This announcement allows recreational fishers to maximize their opportunity to harvest the recreational annual catch limit (ACL) for black sea bass during the fishing season while managing harvest to protect the black sea bass resource.

    DATES:

    This rule is effective from 12:01 a.m., local time, April 1, 2018, until 12:01 a.m., local time, April 1, 2019, unless changed by subsequent notification in the Federal Register.

    FOR FURTHER INFORMATION CONTACT:

    Nikhil Mehta, NMFS Southeast Regional Office, telephone: 727-824-5305, email: [email protected].

    SUPPLEMENTARY INFORMATION:

    The South Atlantic snapper-grouper fishery includes black sea bass and is managed under the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region (FMP). The South Atlantic Fishery Management Council prepared the FMP and the FMP is implemented by NMFS under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.

    The final rule implementing Regulatory Amendment 14 to the FMP revised the recreational fishing year for black sea bass to be April 1 through March 31 (79 FR 66316; November 7, 2014). The final rule also revised the recreational AMs for black sea bass. Prior to the April 1 start of each recreational fishing year, NMFS projects the length of the upcoming recreational fishing season based on when NMFS projects the recreational ACL will be met and announces the recreational season end date in the Federal Register (50 CFR 622.193(e)(2)). The purpose of this AM is to have a more predictable recreational season length while still constraining harvest at or below the recreational ACL to protect the stock from experiencing adverse biological consequences.

    NMFS estimates that recreational landings for the 2018-2019 fishing year will be less than the 2018-2019 recreational ACL. To make this determination, NMFS compared landings in the last 3 fishing years to the recreational ACL for the 2018-2019 black sea bass fishing year of 848,455 lb (384,853 kg), gutted weight, 1,001,177 lb (454,126 kg), round weight. The recreational ACL was set through the final rule for Regulatory Amendment 19 to the FMP (78 FR 58249; September 23, 2013). Landings in each of the past 3 fishing years have been substantially below the 2018-2019 recreational ACL; therefore, recreational landings in 2018-2019 are projected to be below the 2018-2019 recreational ACL. Accordingly, the recreational sector for black sea bass is not expected to close as a result of reaching its ACL, and the season end date for recreational fishing for black sea bass in the South Atlantic EEZ south of 35°15.9′ N lat. is March 31, 2019.

    Classification

    The Regional Administrator, Southeast Region, NMFS, has determined this temporary rule is necessary for the conservation and management of South Atlantic black sea bass and is consistent with the Magnuson-Stevens Act and other applicable laws.

    This action is taken under 50 CFR 622.193(e)(2) and is exempt from review under Executive Order 12866.

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

    This action responds to the best scientific information available. The Assistant Administrator for Fisheries, NOAA (AA), finds that the need to immediately implement the notice of the recreational season length constitutes good cause to waive the requirements to provide prior notice and opportunity for public comment pursuant to the authority set forth in 5 U.S.C. 553(b)(B), because prior notice and opportunity for public comment on this temporary rule is unnecessary. Such procedures are unnecessary, because the rule establishing the AM has already been subject to notice and comment, and all that remains is to notify the public of the recreational season length.

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

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: March 16, 2018. Emily H. Menashes, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2018-05703 Filed 3-20-18; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 [Docket No. 170816769-8162-02] RIN 0648-XF906 Fisheries of the Exclusive Economic Zone Off Alaska; Pacific Cod by Hook-and-Line Catcher/Processors in the Western Regulatory Area of the Gulf of Alaska AGENCY:

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

    ACTION:

    Temporary rule; closure.

    SUMMARY:

    NMFS is prohibiting directed fishing for Pacific cod by hook-and-line catcher/processors in the Western Regulatory Area of the Gulf of Alaska (GOA). This action is necessary to prevent exceeding the A season allowance of the 2018 Pacific cod total allowable catch apportioned to hook-and-line catcher/processors in the Western Regulatory Area of the GOA.

    DATES:

    Effective 1200 hours, Alaska local time (A.l.t.), March 16, 2018, through 1200 hours, A.l.t., June 10, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Obren Davis, 907-586-7228.

    SUPPLEMENTARY INFORMATION:

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

    The A season allowance of the 2018 Pacific cod total allowable catch (TAC) apportioned to hook-and-line catcher/processors in the Western Regulatory Area of the GOA is 607 metric tons (mt), as established by the final 2018 and 2019 harvest specifications for groundfish of the GOA (83 FR 8768, March 1, 2018).

    In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator) has determined that the A season allowance of the 2018 Pacific cod TAC apportioned to hook-and-line catcher/processors in the Western Regulatory Area of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 595 mt and is setting aside the remaining 12 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for Pacific cod by hook-and-line catcher/processors in the Western Regulatory Area of the GOA. After the effective date of this closure the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.

    Classification

    This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the directed fishing closure of Pacific cod by hook-and-line catcher/processors in the Western Regulatory Area of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of March 15, 2018.

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

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

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: March 16, 2018. Emily H. Menashes, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2018-05756 Filed 3-16-18; 4:15 pm] BILLING CODE 3510-22-P
    83 55 Wednesday, March 21, 2018 Proposed Rules FEDERAL ELECTION COMMISSION 11 CFR Part 113 [NOTICE 2018-05] Rulemaking Petition: Former Candidates' Personal Use AGENCY:

    Federal Election Commission.

    ACTION:

    Rulemaking petition; notification of availability.

    SUMMARY:

    On February 5, 2018, the Federal Election Commission received a Petition for Rulemaking, which asks the Commission to revise and amend the existing rules concerning the personal use of campaign funds, specifically to clarify the application of those rules to former candidates and officeholders. The Commission seeks comments on the petition.

    DATES:

    Comments must be submitted on or before May 21, 2018.

    ADDRESSES:

    All comments must be in writing. Commenters are encouraged to submit comments electronically via the Commission's website at http://www.fec.gov/fosers, reference REG 2015-04. Alternatively, commenters may submit comments in paper form, addressed to the Federal Election Commission, Attn.: Robert M. Knop, Assistant General Counsel, 1050 First Street NE, Washington, DC 20463.

    Each commenter must provide, at a minimum, his or her first name, last name, city, and state. All properly submitted comments, including attachments, will become part of the public record, and the Commission will make comments available for public viewing on the Commission's website and in the Commission's Public Records Office. Accordingly, commenters should not provide in their comments any information that they do not wish to make public, such as a home street address, personal email address, date of birth, phone number, social security number, or driver's license number, or any information that is restricted from disclosure, such as trade secrets or commercial or financial information that is privileged or confidential.

    FOR FURTHER INFORMATION CONTACT:

    Mr. Robert M. Knop, Assistant General Counsel, or Mr. Sean J. Wright, Attorney, Office of General Counsel, 1050 First Street NE, Washington, DC 20463, (202) 694-1650 or (800) 424-9530.

    SUPPLEMENTARY INFORMATION:

    On February 5, 2018, the Commission received a Petition for Rulemaking from the Campaign Legal Center, asking the Commission to revise and amend 11 CFR 113.1(g) and 11 CFR 113.2, the regulations pertaining to the personal use of campaign funds, specifically to clarify the application of those rules to former candidates and officeholders.

    The Federal Election Campaign Act, 52 U.S.C. 30101-46 (the “Act”), and Commission regulations provide that a candidate's authorized committee may use its funds for several specific purposes, as well as for “any other lawful purpose,” so long as the use does not constitute the conversion of campaign funds to “personal use.” 52 U.S.C. 30114(b); 11 CFR 113.1(g), 113.2(e).

    Campaign funds “shall be considered to be converted to personal use if [the funds are] used to fulfill any commitment, obligation or expense of a person that would exist irrespective of the candidate's election campaign or individual's duties as a holder of [f]ederal office.” 52 U.S.C. 30114(b)(2); see also 11 CFR 113.1(g). The Act and Commission regulations provide a non-exhaustive list of uses of campaign funds that are per se personal use. 52 U.S.C. 30114(b)(2); 11 CFR 113.1(g)(1)(i). For uses of campaign funds not on this list, the Commission determines, on a case-by-case basis, whether they constitute personal use. 11 CFR 113.1(g)(1)(ii).

    The petition asks the Commission to open a rulemaking to clarify the permissible use of campaign funds for former candidates and officeholders. The petition raises two discrete questions for the Commission to resolve during its proposed rulemaking. The first question asks the Commission to identify the “permissible and impermissible uses of campaign funds for an individual who is no longer a candidate or officeholder.” The second question asks the Commission to determine whether there is “a point at which a former candidate or officeholder's continued spending of leftover campaign funds becomes so attenuated from his or her candidate or officeholder status that the spending is presumptively personal use.”

    The Commission seeks comments on the petition. The public may inspect the petition on the Commission's website at http://www.fec.gov/fosers, or in the Commission's Public Records Office, 1050 First Street NE, 12th Floor, Washington, DC 20463, Monday through Friday, from 9 a.m. to 5 p.m. Interested persons may also obtain copies of the petitions by dialing the Commission's Faxline service at (202) 501-3413 and following its instructions. Request document #280.

    The Commission will not consider the petition's merits until after the comment period closes. If the Commission decides that the petition has merit, it may begin a rulemaking proceeding. The Commission will announce any action that it takes in the Federal Register.

    On behalf of the Commission,

    Dated: March 14, 2018. Caroline C. Hunter, Chair, Federal Election Commission.
    [FR Doc. 2018-05644 Filed 3-20-18; 8:45 am] BILLING CODE 6715-01-P
    NATIONAL CREDIT UNION ADMINISTRATION 12 CFR Part 701 RIN 3133-AE86 Federal Credit Union Bylaws AGENCY:

    National Credit Union Administration (NCUA).

    ACTION:

    Advance notice of proposed rulemaking.

    SUMMARY:

    The NCUA Board (Board) is issuing this advance notice of proposed rulemaking to solicit stakeholder comments on ways to streamline, clarify, and improve the standard Federal Credit Union (FCU) bylaws. The standard FCU bylaws provide a comprehensive set of corporate governance procedures that are mandatory for any FCU that had not adopted bylaws as of November 30, 2007. The Board is considering a number of significant changes to the FCU bylaws to provide enhanced operational flexibility to FCUs and to reduce regulatory compliance burdens on all FCUs.

    DATES:

    Comments must be received on or before May 21, 2018.

    ADDRESSES:

    You may submit comments by any of the following methods (Please send comments by one method only):

    Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.

    NCUA Website: http://www.ncua.gov/Legal/Regs/Pages/PropRegs.aspx. Follow the instructions for submitting comments.

    Email: Address to [email protected]. Include “[Your name]—Comments on Federal Credit Union Bylaws ANPR” in the email subject line.

    Fax: (703) 518-6319. Use the subject line described above for email.

    Mail: Address to Gerard Poliquin, Secretary of the Board, National Credit Union Administration, 1775 Duke Street, Alexandria, Virginia 22314-3428.

    Hand Delivery/Courier: Same as mail address.

    Public inspection: You can view all public comments on NCUA's website at http://www.ncua.gov/Legal/Regs/Pages/PropRegs.aspx as submitted, except for those we cannot post for technical reasons. NCUA will not edit or remove any identifying or contact information from the public comments submitted. You may inspect paper copies of comments in NCUA's law library at 1775 Duke Street, Alexandria, Virginia 22314-3428, by appointment weekdays between 9 a.m. and 3 p.m. To make an appointment, call (703) 518-6546 or send an email to [email protected].

    FOR FURTHER INFORMATION CONTACT:

    Benjamin M. Litchfield, Staff Attorney, National Credit Union Administration, 1775 Duke Street, Alexandria, Virginia 22314-3428 or telephone: (703) 518-6540.

    SUPPLEMENTARY INFORMATION: I. Background

    FCU incorporators must present proposed FCU bylaws along with an organization certificate to the Board for its approval prior to commencing business as an FCU.1 To simplify the organization of FCUs, the Federal Credit Union Act (FCU Act) requires the Board to prepare “from time to time” a form of FCU bylaws to be used by FCU incorporators and to make that form available upon request.2 The FCU Act grants the Board considerable discretion in drafting this form “from time to time,” provided that the FCU bylaws are consistent with basic corporate governance procedures set out in the FCU Act. Those corporate governance procedures are designed to protect fundamental FCU member rights that underpin the cooperative principles that serve as the cornerstone of the credit union movement.3

    1 12 U.S.C. 1754, 1758.

    2 12 U.S.C. 1758.

    3 Specifically, these rights include the right to: (1) Maintain a share account; (2) maintain FCU membership; (3) have access to credit union facilities; (4) participate in the director election process; (5) attend annual and special meetings; and (6) petition for removal of directors and committee members. See Federal Credit Union Bylaws, 72 FR 30984, 30986 (Aug. 6, 2007) (proposed rule).

    The FCU bylaws and accompanying guidance were not part of the NCUA's regulations for almost 25 years.4 During that time, in consultation with the NCUA, FCUs had considerable discretion to adopt reasonable FCU bylaws provisions provided that they did not conflict with the FCU Act, the NCUA's regulations, established federal policy, or otherwise pose a safety and soundness risk to the FCU.5 Accordingly, the Board did not view FCU bylaws disputes predominantly as a federal regulatory matter. Instead, the Board believed that state corporate law and state courts were the appropriate vehicles through which FCU officials and members could settle FCU bylaws disputes where state corporate law was not preempted by federal law.

    4 Federal Credit Union Bylaws, 72 FR 61495, 61496 (Oct. 31, 2007) (final rule) (codified at 12 CFR 701, App. A).

    5Id.

    However, the Board observed a number of troubling cases in which members were unable to enforce fundamental FCU member rights in state courts.6 Moreover, the Board began to see troubling precedents developing in federal courts holding that FCUs do not have fiduciary duties to their members despite the clear status conferred by the FCU Act on a credit union member as a partial owner of the FCU.7 Treating FCU bylaw disputes as largely matters of state corporate law also diminished the NCUA's ability to take proactive enforcement measures in this area. Accordingly, the Board incorporated the standard FCU bylaws as part of the NCUA's regulations and required all FCUs that had not adopted bylaws prior to November 30, 2007 to adopt the standard FCU bylaws.8 FCUs that had adopted bylaws prior to that date were allowed to retain their then current bylaws. However, the Board strongly encouraged those FCUs to adopt the standard FCU bylaws.

    6See 72 FR at 30985 (Aug. 6, 2007) (observing member difficulties obtaining redress in state courts); see also Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (citing Montford v. Robins Fed'l Credit Union, 691 F. Supp. 347, 351-52 (M.D. Ga. 1988)) (NCUA appropriate body to hear FCU bylaw complaints).

    7Id.; see also. Miur v. Navy Fed'l Credit Union, 529 F.3d 1100, 1107-8 (D.C. Cir. 2008) (applying the Virginia Commercial Code).

    8 12 CFR 701, App. A, Instruction A.

    Since incorporating standard FCU bylaws into the NCUA's regulations, the NCUA has periodically solicited comment from stakeholders on ways to streamline, clarify, and improve the standard FCU bylaws to provide FCUs with greater operational flexibility. For example, the NCUA's Office of General Counsel met with stakeholders in 2013 to discuss possible revisions to the standard FCU bylaws. Those stakeholders provided valuable input on particular provisions of the standard FCU bylaws. Their comments and recommended changes included: (1) Adding flexibility where consistent with law, regulation, and the protection of fundamental member rights; (2) removing outdated or obsolete provisions and terms; (3) conforming the standard FCU bylaws to plain English writing principles; (4) expanding the commentary section to provide additional information and guidance; (5) adding provisions related to member rights and responsibilities and clarifying the permissible actions FCUs can take to address members who are abusive or disruptive; and (6) addressing provisions pertaining to meeting procedures, quorums, and notice requirements. The Office of General Counsel has a record of these comments and continues to take them into account.

    Recently, the NCUA's Regulatory Reform Task Force (Task Force), a group created by the NCUA Chairman to implement the NCUA's regulatory reform agenda, has suggested that more wholesale changes to the standard FCU bylaws may be necessary because they have not been significantly updated in nearly 10 years.9 To ensure that the standard FCU bylaws are amended in a transparent manner that affords stakeholders enhanced opportunity to participate in the rulemaking process, the Task Force recommended that the Board issue an advance notice of proposed rulemaking to request comments on ways in which the FCU bylaws may be streamlined, clarified, and improved.

    9 Regulatory Reform Agenda, 82 FR 39702, 39705 (Aug. 22, 2017). The Task Force's report was adopted by the Board and issued for public comment with a comment period ending on November 20, 2017.

    II. Request for Comments on Specific Topics

    In accordance with the Task Force's recommendation, the Board is issuing this advance notice of proposed rulemaking to solicit stakeholder comments on the standard FCU bylaws. In particular, the Board requests specific comments on the following questions:

    1. How can the Board improve the FCU bylaws amendment process?

    A perennial concern among stakeholders is that the process to amend the standard FCU bylaws is complicated and time consuming. An FCU's decision to amend its bylaws often results from a pressing operational concern. The FCU's ability to respond to that concern in a timely manner is not just a matter of convenience, but also an important safety and soundness issue. An FCU that wishes to amend its bylaws must request approval from the NCUA's Office of Credit Union Resources and Expansion (CURE) for many amendments to the standard FCU bylaws. While CURE processes bylaws amendment requests as expeditiously as possible, the standard FCU bylaws do not provide for any timeline by which CURE must arrive at its determination, except in the case of previously approved bylaws amendments.10 Accordingly, the Board seeks specific stakeholder comments on ways to improve this process to provide a requesting FCU with a more timely response, greater transparency, and enhanced accountability.

    10 12 CFR 701, App. A, Instruction C.4.

    2. How can the Board clarify the FCU bylaws provisions addressing limitation of service and expulsion of members?

    In the past, stakeholders have asked for clarification on the FCU bylaws provisions addressing limitation of service policies. Article II, § 4 of the standard FCU bylaws permits an FCU to limit services or access to credit union facilities to “a member who is disruptive to credit union operations.” 11 The Office of General Counsel's longstanding interpretation of the phrase “disruptive to credit union operations” is that an FCU may limit services to an FCU member in a number of cases, including situations where a member is abusive to FCU staff or has caused a loss to the FCU. This is the case provided that members have received adequate notice of the limitation of service policy and there is some “logical relationship between the objectionable conduct and the services to be suspended.” 12

    11 12 CFR 701, App. A, Art. II, § 4.

    12 Suspension of Service Policy, OGC Op. Letter 08-0431 (Aug. 12, 2008); Request for Interpretation of Section 118 of the Federal Credit Union Act, OGC Op. Letter 96-0530 (June 10, 1996).

    However, the Office of General Counsel has also stated that contract provisions in account and other member service agreements, as well as federal and state laws, may affect an FCU's ability to implement a limitation of service policy.13 For example, an FCU may not implement a limitation of service policy that has a disparate impact on a protected class, such as may be the case regarding defaults on consumer loans.14 The ambiguity surrounding the use of limitation of service policies has led to some justifiable stakeholder confusion and enforcement issues.

    13Id.

    14 Regulation B, which implements the Equal Credit Opportunity Act, prohibits discrimination on the basis of a protected class. See 12 CFR 1002.

    Accordingly, the Board is particularly interested in specific stakeholder comments on ways to improve Article II, § 4 of the standard FCU bylaws to provide FCUs with the greatest possible clarity regarding the use and misuse of limitation of service policies. The Board is also interested in specific stakeholder comments on whether this regulatory text should be removed in its entirety and addressed as a separate regulation.

    3. How can the Board improve the FCU bylaws to facilitate the recruitment and development of directors?

    As the credit union movement continues to undergo significant changes, the Board is interested in ways that it can improve the FCU bylaws to facilitate the recruitment of FCU directors. Article V of the standard FCU bylaws sets out four distinct procedures that an FCU may choose to follow in order to select directors.15 In each case, a nominating committee must appoint at least one member to each vacancy, including any unexpired term vacancy, for which elections are being held. However, these procedures do not provide guidance on how the nominating committee should proceed with identifying prospective candidates nor do they clarify the criteria that the nominating committee may use when selecting candidates.

    15 12 CFR 701, App. A, Art. V.

    While the Board believes that these matters fall squarely within the sound business judgment of each individual FCU, the Board is interested in ways that it can amend the standard FCU bylaws to facilitate effective business continuity planning. For example, should the Board include commentary to Article V of the standard FCU bylaws recommending certain non-binding factors that the nominating committee may consider when selecting a candidate to fill a particular vacancy? If so, what factors should the Board highlight? In addition, should the Board include commentary authorizing FCUs to establish standing advisory committees designed to recruit potential candidates to fill board vacancies? If so, which individuals within the FCU should be part of this advisory committee? What safeguards should be put in place to prevent conflicts of interest?

    4. How can the Board improve the FCU bylaws to encourage member attendance at annual and special meetings?

    A key difference “between credit unions and other federally chartered financial institutions lies in the democratic control and management of credit unions.” 16 Accordingly, the Board is interested in ways that it can improve the standard FCU bylaws to encourage active member participation in annual and special meetings. Article IV of the standard FCU bylaws sets out the procedures that must be followed when an FCU holds a meeting of members.17 For an annual meeting, the secretary of the FCU must provide members with at least 30 but not more than 75 days written notice before the date of any annual meeting. For a special meeting, the written notice must be at least 7 days before the date of the special meeting. The Board seeks stakeholder input on whether these time periods are adequate to ensure that members have sufficient advanced notice to afford an actual opportunity to attend annual and special meetings.

    16La Caisse Populaire Ste-Marie (St. Mary's Bank) v. U.S., 425 F. Supp. 512, 517 (D.N.H. 1976).

    17 12 CFR 701, App. A, Art. IV.

    In addition, with the rise of e-commerce and mobile banking, the Board is interested in stakeholder comments on ways that it may improve Article IV of the standard FCU bylaws to allow FCUs to harness new technologies, particularly social media and web-based conferencing solutions, to allow more members to attend annual and special meetings. For example, should the Board allow an FCU to conduct an annual or special meeting through teleconference? If so, what market solutions exist to allow members to debate issues brought to the floor or to securely vote on director nominations? Would the use of such a market solution be considered an impermissible proxy vote? What risks are associated with the use of these products? Would the use of these kinds of solutions encourage greater member participation from those individuals who largely rely on mobile financial services and avoid traditional brick-and-mortar branches? Could this technology be provided through a mobile application?

    5. Should the Board eliminate overlaps between the NCUA's regulations and the FCU bylaws?

    In reviewing the standard FCU bylaws, NCUA staff identified a number of the NCUA's regulations that overlap, to some extent, with the standard FCU bylaws. Many of the overlapping standard FCU bylaws provisions are located in Article XVI and address issues such as FCU member confidentiality, conflicts of interest, record retention, and the availability of books and records to FCU members. Do these duplicative regulatory and bylaws requirements increase compliance burden in a manner that outweighs any measurable member benefit? If so, the Board requests specific stakeholder comments on how to address these provisions.

    If such overlap is problematic, a solution the Board could consider is to remove the overlapping provisions from the standard FCU bylaws to the greatest extent possible and make appropriate adjustments to the NCUA's regulations to maintain their substantive protections. For example, should the Board remove Article XVI, § 4 of the standard FCU bylaws, which governs conflicts of interests for institutional-affiliated parties? 18 If so, the Board could make appropriate amendments to its conflicts of interest rule, § 701.4,19 to expand the scope of that rule to cover all institution-affiliated parties of an FCU rather than just FCU directors. Similarly, should the Board remove Article XVI, §§ 5 and 6 and make appropriate changes to the NCUA's rule governing FCU member access to FCU records, § 701.3,20 and the rule governing record retention, part 749? 21

    18 12 CFR 701, App. A, Art. XVI, § 4.

    19 12 CFR 701.4.

    20 12 CFR 701.3.

    21 12 CFR 749.

    III. Request for General Comments

    In addition to requesting specific comments addressing the issues identified above, the Board also requests stakeholder comments on any aspect of the standard FCU bylaws that commenters wish to bring to the Board's attention to improve the standard FCU bylaws' usefulness and ease of use. Further, the Board invites stakeholders that have previously commented on proposed changes to the standard FCU bylaws to offer additional comments based on recent experiences.

    The Board asks stakeholders, who are requesting a specific change to a provision of the standard FCU bylaws, to please provide a brief statement regarding whether the FCU Act would permit such a change. Some provisions of the standard FCU bylaws are drawn directly from the FCU Act and, therefore, may not be legally amended. For example, § 109 of the FCU Act provides that an FCU may not charge any other fee for FCU membership other than a “uniform entrance fee if required by the board of directors.” 22 This provision of the FCU Act prohibits FCUs from imposing monthly membership fees and other similar charges 23 and was codified in the standard FCU bylaws to simplify compliance obligations for FCUs.24 Accordingly, any request to change this provision or any similar provisions that correspond to a statutory requirement set out in the FCU Act, regardless of how compelling the stakeholder's arguments, would be impermissible. In providing this brief supporting statement, the Board asks that stakeholders not only consider whether the statutory text would permit such a change but also whether the change fits within the spirit and intent of the FCU Act.25

    22 12 U.S.C. 1759.

    23See Monthly Membership Fees, OGC Op. Letter 15-0902 (May 1, 2015).

    24See 12 CFR 701, App. A, Art. II, § 2.

    25 It is a “familiar rule that a thing may be within the letter of a statute and yet not within the statute, because not within its spirit nor within the intention of its makers.” Mova Pharmaceutical Corp. v. Shalala, 140 F.3d 1060, 1068 (D.C. Cir. 1998) (citing Holy Trinity Church v. U.S., 143 U.S. 457, 459-60 (1892)).

    By the National Credit Union Administration Board on March 15, 2018. Gerard Poliquin, Secretary of the Board.
    [FR Doc. 2018-05625 Filed 3-20-18; 8:45 am] BILLING CODE 7535-01-P
    BUREAU OF CONSUMER FINANCIAL PROTECTION [Docket No. CFPB-2018-0011] 12 CFR Chapter X Request for Information Regarding the Bureau's Adopted Regulations and New Rulemaking Authorities AGENCY:

    Bureau of Consumer Financial Protection.

    ACTION:

    Request for information.

    SUMMARY:

    The Bureau of Consumer Financial Protection (Bureau) is seeking comments and information from interested parties to assist the Bureau in considering whether, consistent with its statutory authority to prescribe rules pursuant to the Federal consumer financial laws, the Bureau should amend those rules it has promulgated since its creation or issue certain new rules.

    DATES:

    Comments must be received by June 19, 2018.

    ADDRESSES:

    You may submit responsive information and other comments, identified by Docket No. CFPB-2018-0011, by any of the following methods:

    Electronic: Go to http://www.regulations.gov. Follow the instructions for submitting comments.

    Email: [email protected]. Include Docket No. CFPB-2018-0011 in the subject line of the message.

    Mail: Comment Intake, Consumer Financial Protection Bureau, 1700 G Street NW, Washington, DC 20552.

    Hand Delivery/Courier: Comment Intake, Consumer Financial Protection Bureau, 1700 G Street NW, Washington, DC 20552.

    Instructions: The Bureau encourages the early submission of comments. All submissions must include the document title and docket number. Please note the number of the topic on which you are commenting at the top of each response (you do not need to address all topics). Because paper mail in the Washington, DC area and at the Bureau is subject to delay, commenters are encouraged to submit comments electronically. In general, all comments received will be posted without change to http://www.regulations.gov. In addition, comments will be available for public inspection and copying at 1700 G Street NW, Washington, DC 20552, on official business days between the hours of 10 a.m. and 5 p.m. eastern time. You can make an appointment to inspect the documents by telephoning 202-435-7275.

    All submissions in response to this request for information, including attachments and other supporting materials, will become part of the public record and subject to public disclosure. Proprietary information or sensitive personal information, such as account numbers or Social Security numbers, or names of other individuals, should not be included. Submissions will not be edited to remove any identifying or contact information.

    FOR FURTHER INFORMATION CONTACT:

    Thomas L. Devlin and Kristin McPartland, Senior Counsels, Office of Regulations, at 202-435-7700. If you require this document in an alternative electronic format, please contact [email protected].

    SUPPLEMENTARY INFORMATION:

    Congress established the Bureau in the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act) and therein set forth the Bureau's purpose, objectives, and functions.1 Pursuant to that Act, on July 21, 2011, the “consumer financial protection functions” previously vested in certain other Federal agencies transferred to the Bureau.2 The term “consumer financial protection function” is defined to include “all authority to prescribe rules or issue orders or guidelines pursuant to any Federal consumer financial law, including performing appropriate functions to promulgate and review such rules, orders, and guidelines.” 3 The Dodd-Frank Act in turn defines Federal consumer financial law broadly to include “the provisions of [title X of the Dodd-Frank Act], the enumerated consumer laws, the laws for which authorities are transferred under subtitles F and H, and any rule or order prescribed by the Bureau under [title X], an enumerated consumer law, or pursuant to the authorities transferred under subtitles F and H.” 4

    1 Public Law 111-203, 124 Stat. 2081 (2010) (codified at 15 U.S.C. 1693a et seq.). Section 1021 of the Dodd-Frank Act states that the Bureau shall seek to implement and, where applicable, enforce Federal consumer financial law consistently for the purpose of ensuring that all consumers have access to markets for consumer financial products and services and that markets for consumer financial products and services are fair, transparent, and competitive. Section 1021 also authorized the Bureau to exercise its authorities under Federal consumer financial law for the purposes of ensuring that, with respect to consumer financial products and services, five specific objectives are met. 12 U.S.C. 5511.

    2 12 U.S.C. 5581.

    3 12 U.S.C. 5581(a)(1).

    4 12 U.S.C. 5481(14).

    Accordingly, Congress generally transferred to the Bureau rulemaking authority for Federal consumer financial laws previously vested in certain other Federal agencies, and the Bureau thereafter assumed responsibility over the various regulations that these agencies had issued under this rulemaking authority (the “Inherited Regulations”).5 The Dodd-Frank Act also provided new rulemaking authorities to the Bureau under the Federal consumer financial laws.6 Since the Bureau's creation, it has prescribed a number of rules under Federal consumer financial law in rulemakings mandated by Congress, as well as in discretionary rulemakings. These Bureau-issued rules and the new authorities created under the Dodd-Frank Act are referred to collectively in this RFI as the “Adopted Regulations.” The Adopted Regulations have often amended the Inherited Regulations.

    5 The Bureau generally restated these regulations first through a series of interim final rules published in the Federal Register and subsequently through a final rule. 81 FR 25323 (Apr. 28, 2016). Bureau rules are generally set forth in title 12, Chapter X of the Code of Federal Regulations.

    6 For example, section 1089 of the Dodd-Frank Act amended the Fair Debt Collection Practices Act to authorize the Bureau to “prescribe rules with respect to the collection of debts by debt collectors,” as defined in the Act. See 15 U.S.C. 1692l(d); 78 FR 67847, 67852 (Nov. 12, 2013).

    The Bureau's Rulemaking Authority. The Dodd-Frank Act states that the Bureau is authorized to “exercise its authorities under Federal consumer financial law to administer, enforce, and otherwise implement the provisions of Federal consumer financial law.” 7 The Dodd-Frank Act further authorizes the Director of the Bureau to prescribe rules as may be necessary or appropriate to enable the Bureau to administer and carry out the purposes and objectives of the Federal consumer financial laws, which include enumerated consumer laws as well as provisions of the Dodd-Frank Act, and to prevent evasions thereof.8

    7 12 U.S.C. 5512(a).

    8 12 U.S.C. 5512(b)(1).

    Existing Bureau Work to Examine Adopted Regulations. Section 1022(d) of the Dodd-Frank Act requires the Bureau to conduct an assessment of each significant rule or order adopted by the Bureau under Federal consumer financial law. The Bureau must publish a report of the assessment not later than five years after the effective date of such rule or order. The assessment must address, among other relevant factors, the rule's effectiveness in meeting the purposes and objectives of title X of the Dodd-Frank Act and the specific goals stated by the Bureau. The assessment also must reflect available evidence and any data that the Bureau reasonably may collect. Before publishing a report of its assessment, the Bureau must invite public comment on recommendations for modifying, expanding, or eliminating the significant rule or order.9 More generally, the Dodd-Frank Act also states that the Bureau is authorized to exercise its authorities under Federal consumer financial law for, among other objectives, “ensuring that, with respect to consumer financial products and services . . . outdated, unnecessary, or unduly burdensome regulations are regularly identified and addressed in order to reduce unwarranted regulatory burdens.” 10 As discussed further below, the Bureau has issued three Requests for Information to date announcing section 1022(d) assessments of specific Adopted Regulations and seeking comment on the assessments.

    9 12 U.S.C. 5512(d).

    10 12 U.S.C. 5511(b)(3).

    Overview of This Request for Information

    The Bureau is using this request for information (RFI) to seek public input regarding the substance of the Adopted Regulations, including whether the Bureau should issue additional rules. The Bureau encourages comments from all interested members of the public. The Bureau anticipates that the responding public may include (among others) entities and their service providers subject to Bureau rules, trade associations that represent these entities, individual consumers, consumer advocates, regulators, and researchers or members of academia.

    The Bureau previously issued an RFI regarding its rulemaking processes, and plans to issue an RFI about the Bureau's regulatory implementation and guidance functions. The Bureau also plans to issue an RFI regarding the Inherited Regulations. Accordingly, the purpose of this RFI is to seek feedback on the content of the Adopted Regulations, not the Bureau's rulemaking processes, implementation initiatives that occur after the issuance of a final rule, or the Inherited Regulations. Also please note that the Bureau is not requesting comment on any pending rulemaking for which the Bureau has issued a Notice of Proposed Rulemaking or otherwise solicited public comment.

    The Adopted Regulations. The Adopted Regulations include rulemakings adopted under Federal consumer financial law and issued by the Bureau since the designated transfer date in 2011, including rules that were adopted pursuant to specific instructions from Congress.11 The term also includes new rulemaking authorities given to the Bureau by the Dodd-Frank Act under the Federal consumer financial laws. The Adopted Regulations generally include all final rulemakings that the Bureau issued after providing notice and seeking public comment, including any accompanying Official Interpretations (commentary) issued by the Bureau. However, the Bureau is not requesting feedback at this time on its 2015 rule under the Home Mortgage Disclosure Act (nor that rule's subsequent amendments) 12 or its 2017 rule entitled “Payday, Vehicle Title, and Certain High-Cost Installment Loans,” 13 because the Bureau has previously announced that it intends to engage in rulemaking processes to reconsider those rules.

    11 Examples of larger rules issued by the Bureau that would fall under the definition of “Adopted Regulations” include the rules the Bureau promulgated pursuant to the Dodd-Frank Act to govern mortgage servicing, mortgage origination, integrated mortgage disclosures, and remittance transfers, and also include discretionary rules the Bureau has adopted such as the rule governing prepaid accounts. This list is non-exclusive; a full list of final rules issued by the Bureau is available at https://www.consumerfinance.gov/policy-compliance/rulemaking/final-rules/.

    12 80 FR 66127 (Oct. 28, 2015), as subsequently amended.

    13 82 FR 54472 (Nov. 17, 2017).

    The Bureau also previously has announced that it is conducting assessments, pursuant to section 1022(d) of the Dodd-Frank Act, of certain final Bureau rules concerning remittance transfers, mortgage servicing under the Real Estate Settlement Procedures Act, and ability-to-repay and qualified mortgage standards.14 As part of those assessments, the Bureau previously solicited recommendations for modifying, expanding, or eliminating these rules in accordance with section 1022(d)(3). The Bureau will consider for purposes of this RFI, and to the extent relevant, all comments previously received in connection with the assessments. Although respondents to this RFI are free to comment on those rules currently under assessment, respondents should not feel any obligation to include in their responses to this RFI suggestions or observations previously made in the context of those assessments.

    14 77 FR 6194 (Feb. 7, 2012), 78 FR 10695 (Feb. 14, 2013), and 78 FR 6408 (Jan. 30, 2013), each as subsequently amended.

    Suggested Topics for Commenters

    To allow the Bureau to more effectively evaluate suggestions, the Bureau requests that, where possible, comments include:

    • Specific suggestions regarding any potential updates or modifications to the Adopted Regulations, consistent with the laws providing the Bureau with rulemaking authority and the Bureau's regulatory and statutory purposes and objectives, and including, in as much detail as possible, the nature of the requested change, and supporting data or other information on impacts and costs of the Adopted Regulations and on the suggested changes thereto; and

    • Specific identification of any aspects of the Adopted Regulations that should not be modified, consistent with the laws providing the Bureau with rulemaking authority and the Bureau's regulatory and statutory purposes and objectives, and including, in as much detail as possible, supporting data or other information on impacts and costs, or information related to consumer and public benefit resulting from these rules.

    The following list represents a preliminary attempt by the Bureau to identify considerations relevant in determining where modifications of the Adopted Regulations or further exercise of the Bureau's rulemaking authorities may be appropriate. This non-exhaustive list is meant to assist in the formulation of comments and is not intended to restrict the issues that may be addressed. The Bureau requests that, in addressing these questions or others, commenters identify with specificity the Bureau rules at issue, providing legal citations to specific regulations or statutes where appropriate and available. The Bureau invites commenters to identify the products or services that would be affected by any recommendations made by those commenters. Please feel free to comment on some or all of the questions below and on some or all of the Adopted Regulations, but be sure to indicate on which area you are commenting. The Bureau encourages commenters to make their best efforts to limit their comments to the Adopted Regulations; however, the Bureau will consider all comments received under the Inherited Regulations and Adopted Regulations RFIs together.

    From all of the suggestions, commenters are requested to offer their highest priorities, along with their explanation of how or why they have prioritized suggestions. Commenters are asked to single out their top priority. Suggestions should focus on revisions that the Bureau could implement consistent with its authorities and without Congressional action.

    The Bureau is seeking feedback on all aspects of the Adopted Regulations, including but not limited to:

    1. Aspects of the Adopted Regulations that:

    a. Should be tailored to particular types of institutions or to institutions of a particular size;

    b. Create unintended consequences;

    c. Overlap or conflict with other laws or regulations in a way that makes it difficult or particularly burdensome for institutions to comply;

    d. Are incompatible or misaligned with new technologies, including by limiting providers' ability to deliver, electronically, mandatory disclosures or other information that may be relevant to consumers; or

    e. Could be modified to provide consumers greater protection from the incidence and effects of identity theft.

    2. Changes the Bureau could make to the Adopted Regulations, consistent with its statutory authority, to more effectively meet the statutory purposes and objectives set forth in the Federal consumer financial laws, as well as the Bureau's specific goals for the particular Adopted Regulation.

    3. Changes the Bureau could make to the Adopted Regulations, consistent with its statutory authority, that would advance the following statutory purposes and objectives as set forth in section 1021 of the Dodd-Frank Act:

    a. The statutory purposes set forth in section 1021(a) are:

    i. All consumers have access to markets for consumer financial products and services; and

    ii. Markets for consumer financial products and services are fair, transparent, and competitive.

    b. The statutory objectives set forth in section 1021(b) are:

    i. Consumers are provided with timely and understandable information to make responsible decisions about financial transactions;

    ii. Consumers are protected from unfair, deceptive, or abusive acts and practices and from discrimination;

    iii. Outdated, unnecessary, or unduly burdensome regulations are regularly identified and addressed in order to reduce unwarranted regulatory burdens;

    iv. Federal consumer financial law is enforced consistently in order to promote fair competition; and

    v. Markets for consumer financial products and services operate transparently and efficiently to facilitate access and innovation.

    4. Pilots, field tests, demonstrations, or other activities that the Bureau could launch to better quantify benefits and costs of potential revisions to the Adopted Regulations, or to make compliance with the Adopted Regulations more efficient and effective.

    5. Areas where the Bureau has not exercised the full extent of its rulemaking authority in connection with a specific Adopted Regulation or with regard to rulemaking authorities created by the Dodd-Frank Act under the Federal consumer financial laws, and where rulemaking would be beneficial and align with the purposes and objectives of the applicable Federal consumer financial laws.

    Authority:

    12 U.S.C. 5511(c).

    Dated: March 14, 2018. Mick Mulvaney, Acting Director, Bureau of Consumer Financial Protection.
    [FR Doc. 2018-05612 Filed 3-20-18; 8:45 am] BILLING CODE 4810-AM-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2018-0082; Airspace Docket No. 16-AWP-22] Proposed Establishment of Class E Airspace; Pago Pago, American Samoa AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    This action proposes to establish Class E airspace extending upward from 700 feet above the surface at Pago Pago International Airport, Pago Pago, American Samoa (AS), to accommodate the development of instrument flight rules (IFR) operations under standard instrument approach and departure procedures at the airport, and for the safety and management of IFR operations within the National Airspace System.

    DATES:

    Comments must be received on or before May 7, 2018.

    ADDRESSES:

    Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, 1200 New Jersey Avenue SE, West Building Ground Floor, Room W12-140, Washington, DC 20590; telephone: 1-800-647-5527, or (202) 366-9826. You must identify FAA Docket No. FAA-2018-0082 and Airspace Docket No. 16-AWP-22, at the beginning of your comments. You may also submit comments through the internet at http://www.regulations.gov.

    FAA Order 7400.11B, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at http://www.faa.gov/air_traffic/publications/. For further information, you can contact the Airspace Policy Group, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591; telephone: (202) 267-8783. The Order is also available for inspection at the National Archives and Records Administration (NARA). For information on the availability of FAA Order 7400.11B at NARA, call (202) 741-6030, or go to https://www.archives.gov/federal-register/cfr/ibr-locations.html.

    FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

    FOR FURTHER INFORMATION CONTACT:

    Kenneth Ready, Airspace Policy Group, Office of Airspace Services, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591; telephone: (202) 267-8783.

    SUPPLEMENTARY INFORMATION: Authority for This Rulemaking

    The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. 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. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would establish Class E airspace at Pago Pago International Airport, Pago Pago, AS, to support IFR operations at the airport.

    Comments Invited

    Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.

    Communications should identify both docket numbers (FAA Docket No. FAA-2018-0082 and Airspace Docket No. 16-AWP-22) and be submitted in triplicate to the Docket Management Facility (see ADDRESSES section for address and phone number). You may also submit comments through the internet at http://www.regulations.gov.

    Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2018-0082, and Airspace Docket No. 16-AWP-22.” The postcard will be date/time stamped and returned to the commenter.

    All communications received on or before the specified comment closing date will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the public docket both before and after the comment closing date. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

    Availability of NPRMs

    An electronic copy of this document may be downloaded through the internet at http://www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's web page at http://www.faa.gov/air_traffic/publications/airspace_amendments/.

    You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the ADDRESSES section for the address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except federal holidays. An informal docket may also be examined during normal business hours at the office of Western Service Center, Operations Support Group, Federal Aviation Administration, 2200 S 216th Street, Des Moines, WA 98198.

    Availability and Summary of Documents for Incorporation by Reference

    This document proposes to amend FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017. FAA Order 7400.11B is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11B lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

    The Proposal

    The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 by establishing Class E airspace extending upward from 700 feet above the surface within a 7-mile radius of Pago Pago International Airport, Pago Pago, AS. This airspace is necessary to accommodate IFR operations in standard instrument approach and departure procedures at the airport.

    Class E airspace designations are published in paragraph 6005 of FAA Order 7400.11B, dated August 3, 2017, and effective September 15, 2017, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

    Regulatory Notices and Analyses

    The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

    Environmental Review

    This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.

    List of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

    The Proposed Amendment

    In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

    PART 71—DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR TRAFFIC SERVICE ROUTES; AND REPORTING POINTS 1. The authority citation for 14 CFR part 71 continues to read as follows: Authority:

    49 U.S.C. 106(f), 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.

    § 71.1 [Amended]
    2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017, is amended as follows: Paragraph 6005 Class E Airspace Areas Extending Upward From 700 Feet or More Above the Surface of the Earth. AWP AS E5 Pago Pago, AS [New] Pago Pago International Airport, American Samoa (Lat. 14°19′54″ N, long. 170°42′41″ W)

    That airspace extending upward from 700 feet above the surface within a 7-mile radius of Pago Pago International Airport and within 4 miles either side of the 071° bearing of the Pago Pago International Airport, extending from the 7-mile radius to 10.6 miles northeast of the airport, and within 4 miles either side of the 240° bearing of the airport extending from the 7-mile radius to 10.4 miles southwest of the airport; and that airspace extending upward from 1,200 feet above the surface within a 20 mile-radius of Pago Pago International Airport, excluding that airspace extending beyond 12 miles of the shoreline.

    Issued in Washington, DC, on March 12, 2018. Rodger A. Dean Jr., Manager, Airspace Policy Group.
    [FR Doc. 2018-05585 Filed 3-20-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2018-0195; Airspace Docket No. 17-AWP-15] Proposed Amendment of Air Traffic Service (ATS) Route Q-5; Western United States AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    This action proposes to amend United States Area Navigation (RNAV) route Q-5 in the western United States. The route will now terminate at a waypoint (WP) that connects to an Oakland International Airport (OAK), Standard Terminal Arrival Route (STAR) near Oakland CA.

    DATES:

    Comments must be received on or before May 7, 2018.

    ADDRESSES:

    Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, 1200 New Jersey Avenue SE, West Building Ground Floor, Room W12-140, Washington, DC 20590; telephone: 1(800) 647-5527, or (202) 366-9826. You must identify FAA Docket No. FAA-2018-0195 and Airspace Docket No. 17-AWP-15 at the beginning of your comments. You may also submit comments through the internet at http://www.regulations.gov.

    FAA Order 7400.11B, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at http://www.faa.gov/air_traffic/publications/. For further information, you can contact the Airspace Policy Group, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591; telephone: (202) 267-8783. The Order is also available for inspection at the National Archives and Records Administration (NARA). For information on the availability of FAA Order 7400.11B at NARA, call (202) 741-6030, or go to https://www.archives.gov/federal-register/cfr/ibr-locations.html.

    FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

    FOR FURTHER INFORMATION CONTACT:

    Kenneth Ready, Airspace Policy Group, Office of Airspace Services, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591; telephone: (202) 267-8783.

    SUPPLEMENTARY INFORMATION: Authority for This Rulemaking

    The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. 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. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would modify the route structure as necessary to support the safe and efficient flow of air traffic within the National Airspace System.

    Comments Invited

    Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.

    Communications should identify both docket numbers (FAA Docket No. FAA-2018-0195 and Airspace Docket No. 17-AWP-15) and be submitted in triplicate to the Docket Management Facility (see ADDRESSES section for address and phone number). You may also submit comments through the internet at http://www.regulations.gov.

    Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2018-0195, and Airspace Docket No. 17-AWP-15.” The postcard will be date/time stamped and returned to the commenter.

    All communications received on or before the specified comment closing date will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the public docket both before and after the comment closing date. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

    Availability of NPRMs

    An electronic copy of this document may be downloaded through the internet at http://www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's web page at http://www.faa.gov/air_traffic/publications/airspace_amendments/.

    You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see ADDRESSES section for address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal holidays. An informal docket may also be examined during normal business hours at the office of the Western Service Center, Operations Support Group, Federal Aviation Administration, 2200 South 216th St., Des Moines, WA 98198.

    Availability and Summary of Documents for Incorporation by Reference

    This document proposes to amend FAA Order 7400.11B, airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017. FAA Order 7400.11B is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11B lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

    Background

    Route Q-5 was one of the original RNAV routes developed ushering in performance based navigation (PBN) into the United States. Route Q-5 provided a high altitude route from Seattle into the bay area of San Francisco and Oakland, CA. Route Q-5 tied in OAK airport via the RAIDR STAR from STIKM WP, which is the current southern boundary point on the route. The STAR was removed in 2017 and Q-5 no longer tied into the bay area. The FAA proposes to add a new boundary point of SPAMY, CA, WP, which serves two STARs; WNDSR TWO ARRIVAL and the AANET ONE ARRIVAL, with both serving OAK. Lastly, policy states odd numbered ATS routes list points south to north. Currently Q-5 lists the route north to south. This proposal corrects the direction and will be in line with current policy.

    The Proposal

    The FAA is proposing an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 to modify RNAV route Q-5. The proposed route changes are outlined below. Q-5: Route Q-5 currently extends from HAROB, WA to STIKM, CA. The FAA proposes to start the route at SPAMY, CA, WP, thereby eliminating the STIKM, CA, WP and the HUPTU, CA, WP, to support STARs into OAK. Additionally, ATS route policy states, odd numbered routes will be listed south to north. Route Q-5 was originally listed north to south, and is proposed south to north. The amended route would, therefore, extend from SPAMY, CA to HAROB, WA.

    United States Area Navigation Routes are published in paragraph 2006 of FAA Order 7400.11B dated August 3, 2017, and effective September 15, 2017, which is incorporated by reference in 14 CFR 71.1. The United States Area Navigation Routes listed in this document will be subsequently published in the Order.

    Regulatory Notices and Analyses

    The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

    Environmental Review

    This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.

    List of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

    The Proposed Amendment

    In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

    PART 71—DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR TRAFFIC SERVICE ROUTES; AND REPORTING POINTS 1. The authority citation for part 71 continues to read as follows: Authority:

    49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.

    § 71.1 [Amended]
    2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017 and effective September 15, 2017, is amended as follows: Paragraph 2006 United States Area Navigation Routes Q-5 SPAMY, CA to HAROB, WA [Amended] SPAMY, CA WP (Lat. 39°11′57.00″ N, long. 122°37′58.00″ W) HOMEG, CA WP (Lat. 41°20′09.00″ N, long. 122°51′05.00″ W) HARPR, OR WP (Lat. 42°28′50.00″ N, long. 122°53′01.54″ W) HISKU, OR WP (Lat. 44°30′00.00″ N, long. 122°56′39.00″ W) HAROB, WA WP (Lat. 47°14′36.00″ N, long. 123°02′27.00″ W) Issued in Washington, DC, on March 13, 2018. Rodger A. Dean Jr., Manager, Airspace Policy Group.
    [FR Doc. 2018-05584 Filed 3-20-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 4 [Docket No. FDA-2008-N-0424] Postmarketing Safety Reporting for Combination Products; Draft Guidance for Industry and Food and Drug Administration Staff; Availability AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Notification of availability.

    SUMMARY:

    The Food and Drug Administration (FDA or Agency) is announcing the availability of a draft guidance for industry and FDA staff entitled “Postmarketing Safety Reporting for Combination Products.” This draft guidance addresses certain means by which applicants may comply with the final rule on postmarketing safety reporting (PMSR) requirements for combination products that FDA issued on December 20, 2016. Combination products are products composed of two or more different types of medical products (drug, device, and/or biological product). Although the PMSR regulations for drugs, devices, and biological products share many similarities, each set of regulations establishes distinct postmarketing reporting requirements, standards, and timeframes. The final rule provides clarity on the PMSR requirements for combination products to ensure consistent and complete reporting while avoiding duplication. This draft guidance is not final nor is it in effect at this time.

    DATES:

    Submit either electronic or written comments on the draft guidance by June 19, 2018 to ensure that the Agency considers your comment on this draft guidance before it begins work on the final version of the guidance.

    ADDRESSES:

    You may submit either electronic or written comments on any Agency guidances at any time as follows:

    Electronic Submissions

    Submit electronic comments in the following way:

    Federal eRulemaking Portal: https://www.regulations.gov. Follow the instructions for submitting comments. Comments submitted electronically, including attachments, to https://www.regulations.gov will be posted to the docket unchanged. Because your comment will be made public, you are solely responsible for ensuring that your comment does not include any confidential information that you or a third party may not wish to be posted, such as medical information, your or anyone else's Social Security number, or confidential business information, such as a manufacturing process. Please note that if you include your name, contact information, or other information that identifies you in the body of your comments, that information will be posted on https://www.regulations.gov.

    • If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).

    Written/Paper Submissions

    Submit written/paper submissions as follows:

    Mail/Hand delivery/Courier (for written/paper submissions): Dockets Management Staff (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

    • For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”

    Instructions: All submissions received must include the Docket No. FDA-2008-N-0424 for “Postmarket Safety Reporting for Combination Products.” Received comments will be placed in the docket and, except for those submitted as “Confidential Submissions,” publicly viewable at https://www.regulations.gov or at the Dockets Management Staff between 9 a.m. and 4 p.m., Monday through Friday.

    • Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on https://www.regulations.gov. Submit both copies to the Dockets Management Staff. If you do not wish your name and contact information to be made publicly available, you can provide this information on the cover sheet and not in the body of your comments and you must identify this information as “confidential.” Any information marked as “confidential” will not be disclosed except in accordance with 21 CFR 10.20 and other applicable disclosure law. For more information about FDA's posting of comments to public dockets, see 80 FR 56469, September 18, 2015, or access the information at: https://www.thefederalregister.org/fdsys/pkg/FR-2015-09-18/pdf/2015-23389.pdf.

    Docket: For access to the docket to read background documents or the electronic and written/paper comments received, go to https://www.regulations.gov and insert the docket number, found in brackets in the heading of this document, into the “Search” box and follow the prompts and/or go to the Dockets Management Staff, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

    You may submit comments on any guidance at any time (see 21 CFR 10.115(g)(5)).

    Submit written requests for single copies of the draft guidance to the Office of Combination Products, Food and Drug Administration, Bldg. 32, Rm. 5129, 10903 New Hampshire Ave., Silver Spring, MD 20993. Send two self-addressed adhesive label to assist that office in processing your requests. See the SUPPLEMENTARY INFORMATION section for electronic access to the draft guidance document.

    FOR FURTHER INFORMATION CONTACT:

    Melissa Burns, Office of Combination Products, Food and Drug Administration, 301-796-5616, [email protected].

    SUPPLEMENTARY INFORMATION: I. Background

    FDA is announcing the availability of a draft guidance for industry and FDA staff entitled “Postmarket Safety Reporting for Combination Products.” This guidance addresses how to comply with the final rule on postmarketing safety reporting (PMSR) requirements for combination products that FDA issued on December 20, 2016 (81 FR 92603, hereafter referred to as the “combination product PMSR final rule”). Combination products are products composed of two or more different types of medical products (drug, device, and/or biological product). Although the PMSR regulations for drugs, devices, and biological products share many similarities, each set of regulations establishes distinct reporting requirements, standards, and timeframes. The final rule provides clarity on the PMSR requirements for combination products to ensure consistent and complete reporting while avoiding duplication.

    Elsewhere in this issue of the Federal Register, FDA is also publishing a compliance policy guidance for the combination product PMSR final rule.

    The combination product PMSR final rule applies to combination products that are subject to premarket review by FDA. The entities subject to the final rule are “Combination Product Applicants” and “Constituent Part Applicants.” A Combination Product Applicant holds the only application for a combination product or all the applications for the separately marketed constituent parts of a combination product. A Constituent Part Applicant holds an application for a constituent part of a combination product the constituent parts of which are marketed under separate applications held by different applicants. Major provisions of the final rule are discussed in the guidance including:

    Application Type-Based PMSR. These requirements apply to both Combination Product Applicants and Constituent Part Applicants and are based on the application type under which the combination product or constituent part received marketing authorization.

    Constituent Part-Based PMSR. These requirements apply only to Combination Product Applicants and are based on the types of constituent parts included in the combination product. The rule provides mechanisms for Combination Product Applicants to submit a single report to satisfy multiple reporting requirements if all of the information to be reported can be submitted in the same manner and the report satisfies all applicable reporting requirements, including all submission timelines.

    Information Sharing. These requirements apply only to Constituent Part Applicants, mandating that these applicants share certain adverse event information with one another relating to their combination product.

    Submission Process for Combination Product PMSR Information. These requirements specify how Combination Product and Constituent Part Applicants must submit PMSR information to the Agency.

    Records Retention. These requirements specify what records Combination Product and Constituent Part Applicants must maintain and how long to maintain them.

    II. Other Issues for Consideration

    The combination product PMSR final rule allows FDA to receive complete, timely postmarketing safety information regarding combination products, which is necessary to assure the continued safety and effectiveness of such products, while minimizing unnecessary duplication and burdens on Combination Product Applicants and Constituent Part Applicants. In developing this guidance document to accompany the final rule, FDA has clarified ways in which Combination Product Applicants can streamline PMSR (see section V.A.3 of the guidance). The guidance clarifies under what circumstances the criteria for being able to submit a single report to FDA are met, i.e., that: (1) The reports can be submitted in the same manner and (2) the combined report satisfies all applicable reporting requirements, including submission timelines (see section IV.C of the guidance). FDA encourages comments on guidance content and mechanisms to improve reporting efficiency while still ensuring complete and timely reporting or topics where additional detailed discussion may be helpful in the guidance. In particular, FDA requests feedback on the following issues for consideration to assist the Agency in determining whether additional streamlining of reports may be appropriate:

    1. There may be events that would be reportable for a Combination Product Applicant as a malfunction and/or a Field Alert Report (FAR) and/or a Biological Product Deviation Report (BPDR), e.g., a drug-device combination product that failed to meet specifications may trigger both a malfunction report and FAR. FDA requests feedback on circumstances under which such reporting may be redundant or otherwise unnecessary and, if so, alternative reporting approaches that will assure timely and complete reporting of information to FDA. FDA encourages the use of example scenarios to illustrate circumstances under which submitting one or a subset of such reports may be sufficient to ensure timely and complete reporting.

    2. Although outside the scope of the combination product PMSR final rule, in response to comments to the combination product PMSR proposed rule, FDA has addressed certain reporting considerations for entities involved with the manufacture and distribution of combination products but that are not “applicants” subject to this rule (see Appendix 3 of the guidance). FDA requests feedback on what, if any, additional guidance would be helpful to such entities.

    3. FDA is considering updating the Vaccine Adverse Event Reporting System (VAERS) with data elements similar to those described in section V.B.2 and Appendix 4 of the guidance for the FDA Adverse Events Reporting System (FAERS) and the Electronic Medical Device Reporting (eMDR) system. FDA is also evaluating what additional data elements to include in VAERS with respect to combination products and welcomes comments from combination product vaccine reporters on this topic.

    4. FDA also received comments to the combination product PMSR proposed rule related to the safety reporting requirements for investigational combination products. Although investigational combination products are outside the scope of the combination product PMSR final rule and this guidance, we will consider comments from sponsors on the challenges and the need for additional transparency related to safety reporting for investigational combination products. FDA will consider these comments in determining the need for additional policy and guidance on this topic.

    III. Significance of Guidance

    This draft guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The draft guidance, when finalized, will represent the current thinking of FDA on “Postmarket Safety Reporting for Combination Products.” It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations. This guidance is not subject to Executive Order 12866.

    IV. Paperwork Reduction Act of 1995

    This guidance refers to previously approved collections of information found in FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information in 21 CFR 314.80(c) and (e), as well as for 21 CFR 314.81(b) are approved under OMB control numbers 0910-0001, 0910-0230, and 0910-0291. The information collection provisions for 21 CFR 600.80 and 600.81 are approved under OMB control number 0910-0308. Those for 21 CFR 606.170 are approved under OMB control number 0910-0116. Those for 21 CFR 606.171 are approved under OMB control number 0910-0458. The information collection provisions for 21 CFR 803.50, 803.53, and 803.56 are approved under OMB control numbers 0910-0291 and 0910-0437. The information collection provisions for 21 CFR 806.10 and 806.20 are approved under OMB control number 0910-0359. The information collection provisions for 21 CFR 4.102, 4.103, and 4.105 are approved under OMB control number 0910-0834.

    V. Electronic Access

    Persons with access to the internet may obtain the draft guidance at either https://www.fda.gov/CombinationProducts/GuidanceRegulatoryInformation/ucm109110.htm or https://www.regulations.gov.

    Dated: March 15, 2018. Leslie Kux, Associate Commissioner for Policy.
    [FR Doc. 2018-05687 Filed 3-20-18; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Parts 1100, 1140, and 1143 [Docket No. FDA-2017-N-6565] RIN 0910-AH60 Regulation of Flavors in Tobacco Products AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Advance notice of proposed rulemaking.

    SUMMARY:

    The Food and Drug Administration (FDA) is issuing this advance notice of proposed rulemaking (ANPRM) to obtain information related to the role that flavors play in tobacco products. Specifically, this ANPRM is seeking comments, data, research results, or other information about, among other things, how flavors attract youth to initiate tobacco product use and about whether and how certain flavors may help adult cigarette smokers reduce cigarette use and switch to potentially less harmful products. FDA is seeking this information to inform regulatory actions FDA might take with respect to tobacco products with flavors, under the Federal Food, Drug, and Cosmetic Act (FD&C Act), as amended by the Family Smoking Prevention and Tobacco Control Act (Tobacco Control Act). Potential regulatory actions include, but are not limited to, tobacco product standards and restrictions on sale and distribution of tobacco products with flavors.

    DATES:

    Submit either electronic or written comments by June 19, 2018.

    ADDRESSES:

    You may submit comments as follows. Please note that late, untimely filed comments will not be considered. Electronic comments must be submitted on or before June 19, 2018. The https://www.regulations.gov electronic filing system will accept comments until midnight Eastern Time at the end of June 19, 2018. Comments received by mail/hand delivery/courier (for written/paper submissions) will be considered timely if they are postmarked or the delivery service acceptance receipt is on or before that date.

    Electronic Submissions

    Submit electronic comments in the following way:

    Federal eRulemaking Portal: https://www.regulations.gov. Follow the instructions for submitting comments. Comments submitted electronically, including attachments, to https://www.regulations.gov will be posted to the docket unchanged. Because your comment will be made public, you are solely responsible for ensuring that your comment does not include any confidential information that you or a third party may not wish to be posted, such as medical information, your or anyone else's Social Security number, or confidential business information, such as a manufacturing process. Please note that if you include your name, contact information, or other information that identifies you in the body of your comments, that information will be posted on https://www.regulations.gov.

    • If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).

    Written/Paper Submissions

    Submit written/paper submissions as follows:

    Mail/Hand delivery/Courier (for written/paper submissions): Dockets Management Staff (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

    • For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”

    Instructions: All submissions received must include the Docket No. FDA-2017-N-6565 for “Regulation of Flavors in Tobacco Products.” Received comments, those filed in a timely manner (see ADDRESSES), will be placed in the docket and, except for those submitted as “Confidential Submissions,” publicly viewable at https://www.regulations.gov or at the Dockets Management Staff between 9 a.m. and 4 p.m., Monday through Friday.

    • Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on https://www.regulations.gov. Submit both copies to the Dockets Management Staff. If you do not wish your name and contact information to be made publicly available, you can provide this information on the cover sheet and not in the body of your comments and you must identify this information as “confidential.” Any information marked as “confidential” will not be disclosed except in accordance with 21 CFR 10.20 and other applicable disclosure law. For more information about FDA's posting of comments to public dockets, see 80 FR 56469, September 18, 2015, or access the information at: https://www.thefederalregister.org/fdsys/pkg/FR-2015-09-18/pdf/2015-23389.pdf.

    Docket: For access to the docket to read background documents or the electronic and written/paper comments received, go to https://www.regulations.gov and insert the docket number, found in brackets in the heading of this document, into the “Search” box and follow the prompts and/or go to the Dockets Management Staff, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

    FOR FURTHER INFORMATION CONTACT:

    Laura Rich or Katherine Collins, Center for Tobacco Products, Food and Drug Administration, Document Control Center, 10903 New Hampshire Ave., Bldg. 71, Rm. G335, Silver Spring, MD 20993, 1-877-CTP-1373, [email protected].

    SUPPLEMENTARY INFORMATION: I. Background A. The Tobacco Control Act

    The Tobacco Control Act (Pub. L. 111-31) was enacted on June 22, 2009, amending the FD&C Act and providing FDA with the authority to regulate tobacco products. Specifically, the Tobacco Control Act amends the FD&C Act by adding a new chapter that provides FDA with authority over tobacco products. Section 901(b) of the FD&C Act (21 U.S.C. 387a(b)), as amended by the Tobacco Control Act, states that the new chapter in the FD&C Act (chapter IX—Tobacco Products) (21 U.S.C. 387 through 387u) applies to all cigarettes, cigarette tobacco, roll-your-own tobacco, smokeless tobacco, and any other tobacco products that the Secretary of Health and Human Services by regulation deems to be subject to chapter IX. In the Federal Register of May 10, 2016 (81 FR 28973), FDA issued a final rule deeming all products that meet the statutory definition of “tobacco product” in section 201(rr) of the FD&C Act (21 U.S.C. 321(rr)), except accessories of deemed tobacco products, to be subject to FDA's tobacco product authority (the deeming rule). The products now subject to FDA's tobacco product authority include electronic nicotine delivery systems (ENDS), cigars, waterpipes, pipe tobacco, nicotine gels, dissolvables that were not already subject to chapter IX of the FD&C Act, and other products that meet the statutory definition of “tobacco product” (other than accessories) that may be developed in the future.

    B. Flavors and Tobacco Product Standards

    Section 907 of the FD&C Act (21 U.S.C. 387g) gives FDA the authority to establish tobacco product standards. To establish a tobacco product standard, FDA must find that the standard is appropriate for the protection of the public health, taking into consideration scientific evidence concerning the risks and benefits to the population as a whole, including users and nonusers of tobacco products; the increased or decreased likelihood that existing users of tobacco products will stop using such products; and the increased or decreased likelihood that those who do not use tobacco products will start using such products (section 907(a)(3)(A) and (B) of the FD&C Act). Thus, under section 907, FDA may issue product standards respecting the construction, components, ingredients, additives, constituents, and properties of tobacco products (section 907(a)(4)(B)(i)) and restricting their sale and distribution (section 907(a)(4)(B)(v)).1

    1 As set forth above, section 907(a)(4)(B)(v) provides that product standards “shall, where appropriate for the protection of the public health, include—. . . (v) a provision requiring that the sale and distribution of the tobacco product be restricted but only to the extent that the sale and distribution of a tobacco product may be restricted under a regulation under section 906(d).” Section 906(d) gives FDA authority to require restrictions on the sale and distribution of tobacco products by regulation if the Agency determines that such regulations would be appropriate for the protection of the public health. See section 906(d)(1) of the FD&C Act.

    The Tobacco Control Act includes a “Special Rule for Cigarettes,” which prohibits cigarettes from containing characterizing flavors other than tobacco or menthol (section 907(a)(1)(A)). The statute also authorizes the Agency to issue additional product standards, including to address flavors in tobacco products (see section 907(a)(3)) and preserves FDA's authority to act with respect to menthol (section 907(e)(3)). The deeming rule did not include provisions relating to flavors in tobacco products. Nevertheless, FDA explained that it did intend to consider the issues surrounding the role of flavors in tobacco products, including the role flavors play in youth and young adult use, as well as the existence of preliminary data that some adults may use flavored noncombusted tobacco products to transition away from combusted tobacco use. See 81 FR 28973 at 29014 and 29055.

    C. The Role of Flavors in Tobacco Products Use

    Adolescence (under 18, also referred to as youth) and young adulthood (age 18 through 24) represent a time of heightened vulnerability to both the initiation of tobacco product use and the development of nicotine dependence (Ref. 1). Furthermore, flavors in tobacco products increase the appeal of those tobacco products to youth, and promote youth initiation (Ref. 2). Thus, the availability of tobacco products with flavors at these developmental stages attracts youth to initiate use of tobacco products and may result in lifelong use (Ref. 2). Researchers examining the impact of the Special Rule for Cigarettes have concluded that, while the prohibition of characterizing flavors in cigarettes has reduced adolescent tobacco product use, the continued availability of menthol cigarettes and other flavored tobacco products likely diminish the effects (Ref. 3). Researchers estimated a 6 percent reduction in the probability of using any tobacco product after implementation of the Tobacco Control Act (2009-2013), and observed the reductions to be significantly associated with the Special Rule for Cigarettes (Ref. 3).

    The adverse health effects associated with tobacco product use by youth have been well documented. Nicotine exposure and smoking during adolescence can have unique adverse consequences on brain development (Refs. 2 and 4). For example, smoking cigarettes during adolescence is associated with lasting cognitive and behavioral impairments, including effects on working memory in smoking teens (Ref. 5) and alterations in the prefrontal attentional network in young adult smokers (Ref. 6). Furthermore, the nonclinical data related to nicotine exposure and epidemiologic studies related to smoking cigarettes during adolescence taken together suggest an age-dependent susceptibility to nicotine (Ref. 1).

    Use of tobacco products, which is facilitated by nicotine exposure and dependence, puts youth and young adults at greater risk for future health issues, such as coronary artery disease, cancer, and other known tobacco-related diseases (Refs. 1 and 4). Youth and young adult tobacco product users, particularly cigarette smokers, also are at increased risk for future marijuana and illicit drug use, developmental and mental health disorders, reduced lung growth and impaired function, increased risk of asthma, and early abdominal aortic atherosclerosis (Ref. 1).

    Nicotine is highly addictive. The use of nicotine can lead to nicotine dependence, and makes quitting tobacco products very difficult (Ref. 1). Achieving tobacco cessation after nicotine addiction is a long and difficult process. Smokers may try quitting 30 or more times before succeeding (Ref. 7). According to data from the 2015 National Health Interview Survey, 68 percent of adult smokers in the United States wanted to quit smoking and 55.4 percent made at least one quit attempt in the past year; however, only 7.4 percent actually quit within the 6 to 12 months preceding the survey (Ref. 8).

    1. The Appeal of Flavors Generally and in Tobacco Products Specifically

    Flavor is a multisensory perception consisting of taste, aroma, and chemesthetic (e.g., cooling, burning) sensations in the mouth and throat (Ref. 9). A robust body of literature in food consumer science demonstrates that flavors impact the appeal of consumable products (Refs. 10 and 11), and that flavor preferences drive food selection and vary across age groups (Refs. 12 and 13). Certain flavors are particularly appealing to children and youth; for example, youth have a heightened preference for sweet food tastes and greater rejection of bitter food tastes. These preferences generally diminish with age (Refs. 14 through 17). Flavor compounds, such as sugar, are used to enhance flavor or mask undesirable tastes (e.g., bitter) in food. (Ref. 18).

    Research on the appeal of flavors in food informs the understanding of the appeal and the public health impact of flavors in tobacco products. In fact, many of the same compounds that are added to food are also added to tobacco products to enhance flavor or mask undesirable tastes (Refs. 19, 27, and 28). As with food products, flavors are added to tobacco products to, among other things, improve flavor and taste, such as by reducing the harshness, bitterness, and astringency of tobacco during inhalation (Refs. 19 and 20). Studies involving cigarettes have shown that the addition of sweet flavors increases the appeal of these products, especially to youth (Refs. 19 to 21). In addition, the sensory qualities of menthol flavor produce an analgesic or “cooling” effect, which can reduce feelings of pain or discomfort (Refs. 22 and 23), or increase sensations of respiration ease (Refs. 22 through 26).

    Documents from the tobacco industry show that food flavors, such as fruit and candy, were used to attract new users, primarily youth (Ref. 1). Laboratory research has confirmed that tobacco products contain flavor chemicals at the same level per serving as defined by the studies, or higher than, popular candy and drink products (Refs. 27 and 28). Flavors in food products can trigger reward pathways in the brain and influence decision-making (Ref. 29). Flavors in tobacco products can also trigger reward pathways in the brain and additionally enhance the rewards of nicotine (Refs. 30 and 31).

    2. Tobacco Product Use Patterns by Youth

    a. Overall tobacco product use. According to National Youth Tobacco Survey (NYTS) data, the current use of e-cigarettes among U.S. youth increased significantly between 2011 and 2015 (Ref. 32). While use dropped in 2016, e-cigarettes remain the most commonly used tobacco product by youth (Refs. 33 and 34). Current use of waterpipes among U.S. youth increased significantly between 2011 and 2014, but declined in 2015 and 2016 (Ref. 33). The use of cigarettes, cigars, and smokeless tobacco has generally declined among youth in recent years, although these products remain popular among certain youth subpopulations (Refs. 1, 33, and 35).

    b. Use of tobacco products with flavors. Data regarding use of menthol cigarettes and non-cigarette tobacco products among youth from 2013-2014 show widespread appeal of flavored tobacco products 2 (Refs. 36 through 38). Results from the 2014 NYTS on flavored tobacco product use in the past 30 days among middle and high school students show that an estimated 3.26 million youth tobacco product users (12 percent of all youth) reported using a flavored tobacco product in the past 30 days (Ref. 39). By product, an estimated 1.58 million reported using a flavored e-cigarette, 1.02 million reported using flavored waterpipe tobacco, 910,000 reported using flavored cigars, 900,000 reported using menthol cigarettes, 690,000 reported using flavored smokeless tobacco (defined as chewing tobacco, snuff, dip, snus, or dissolvables), and 120,000 reported using flavored pipe tobacco (Ref. 39). Among youth (12-17 years) who participated in the Population Assessment of Tobacco and Health (PATH) Study in 2013-2014, 88.7 percent of youth who have ever used (i.e., ever tried even one or two times) waterpipe tobacco, 81 percent of e-cigarette ever-users, and 65.4 percent of cigar ever-users reported that the first product they used in these categories was flavored (Ref. 36). Similarly, 79.8 percent of youth who reported being current tobacco product users in the PATH Study reported using a flavored tobacco product in the past 30 days, including 89 percent of waterpipe users, 85.3 percent of e-cigarette users, and 71.7 percent of cigar smokers (Ref. 36). Data regarding use of flavored little filtered cigars also demonstrate appeal to youth and young adults. For example, 2017 Monitoring the Future data show that among 8th, 10th, and 12th grade students, 60 percent of current little cigar users reported using flavored little cigars (Ref. 40). In addition, data from the PATH Study show that among current filtered cigar users, 79.3 percent of young adults aged 18-24 years and 56.2 percent of adults aged 25 years and older report current flavored use (Ref. 37). Moreover, both youth and young adults identified flavors as a major reason for their e-cigarette use (Refs. 36 through 38). In addition, youth consistently reported product flavoring as a reason for using waterpipes, cigars, and smokeless tobacco (including snus products) (Refs. 36 and 37).

    2 For the purposes of this ANPRM, the terms “flavored tobacco product” and “flavors in tobacco products” are used interchangeably.

    While the prevalence of cigarette smoking among youth generally has declined, rates of menthol smoking among youth remained stable between 2004 and 2014 (Ref. 41). Youth and young adult smokers are disproportionately more likely to smoke menthol than nonmenthol cigarettes, as compared to older adult smokers; in 2014, 52.4 percent of youth smokers aged 12-17 years, 50.5 percent of young adult smokers aged 18-25 years, and 36.3 percent of adult smokers aged 26 years or older, reported smoking menthol cigarettes (Ref. 42). Multiple studies show a greater use of menthol cigarettes by younger smokers and less usage among older smokers (Refs. 42 through 45).

    3. Flavors and Perceptions of Harm and Likelihood of Tobacco Product Use

    Perceptions about tobacco harm (i.e., beliefs about the health risks of tobacco) can influence tobacco product use behavior as research suggests that adolescents who perceive lower harms from using tobacco products are more likely to initiate use (Ref. 46). Two systematic reviews report findings from studies assessing participants' (including youth, young adults, and adults) harm perceptions of flavored tobacco products. Some findings show that each age group perceived flavored tobacco products as less harmful than unflavored products (Refs. 47 and 48).

    4. Flavors and Progression to Regular Use

    The association between initiation with flavored tobacco products and current tobacco product use was examined in Wave 1 of the PATH Study data, which indicated that 81 percent of youth (12-17 years of age) and 86 percent of young adult (18-24 years of age) ever tobacco users (i.e., those who have used a tobacco product even once or twice in their lifetimes) reported that the first tobacco product they used was flavored, compared to 54 percent of adults aged 25 years and older (Ref. 37). Controlling for other factors associated with tobacco product use, youth ever tobacco users who reported their first tobacco product was flavored had a 13 percent higher prevalence of current tobacco product use compared to youth whose first product was not flavored. Adult ever users reporting that the first tobacco product they used was flavored had a 32 percent higher prevalence of current established tobacco product use (Ref. 37).

    In addition, a longitudinal examination of youth indicated that youth who initiate smoking with menthol cigarettes may be at greater risk for progression from experimentation to established smoking and nicotine dependence than youth who initiate with nonmenthol cigarettes (Ref. 49).

    5. Youth and Young Adult Flavor Preferences

    As mentioned in section I.C.1. of this document, youth generally prefer sweet flavors (Refs. 14 through 17). Researchers reviewed the flavor chemicals and levels in several brands of candy and Kool-Aid drink mix and concluded that the chemicals used in these products largely overlapped with those in similarly labeled “cherry,” “grape,” “apple,” “peach,” and “berry” tobacco products (Ref. 27).

    Results from studies show that flavored e-cigarettes appeal to youth and young adults; however, these data may not reflect the flavor preferences among all U.S. youth and adults. In a survey conducted in four high schools and two middle schools in Connecticut in 2013, 70.7 percent of the lifetime e-cigarette users (adolescents who had tried an e-cigarette) interviewed reported having used sweet flavors and 22.1 percent reported having used menthol-flavored e-cigarettes. In terms of preferred flavors, 56.8 percent reported preferring sweet flavors, while 8.7 percent preferred menthol e-cigarettes (Ref. 50). Additional results from the same research found that the top three reasons for e-cigarette experimentation among ever e-cigarette users, regardless of cigarette smoking status and school level, were curiosity (54.4 percent), the availability of appealing flavors (43.8 percent), and friends' influence (31.6 percent) (Ref. 51). Another cross-sectional study, in which 1,567 young adults (18-34 years) were recruited through Facebook ads, reported that the most commonly used flavors among current e-cigarette users were fruit (66.9 percent), candy (35.1 percent), and caramel/vanilla/chocolate/cream (33.3 percent) (Ref. 38). E-cigarette flavor preferences also varied by cigarette smoking status with former or never cigarette smokers preferring flavors more frequently than current cigarette smokers (Ref. 38).

    Qualitative findings reveal differences in e-cigarette flavor preferences as well. Research from a 2016 laboratory study of young adult cigarette smokers who used e-cigarettes for the study reported fruit flavored (green apple) and dessert flavored (chocolate) e-cigarettes were more satisfying and rewarding than unflavored e-cigarettes (Ref. 52). Furthermore, participants puffed flavored e-cigarettes approximately 40 times compared with approximately 23 times for unflavored e-cigarettes (Ref. 52). Similarly, other research has shown that sweet-flavored e-cigarettes produce higher appeal ratings among youth than non-sweet and flavorless e-cigarettes (Ref. 53).

    For cigars/cigarillos/little cigars, waterpipe, and smokeless tobacco products, limited evidence exists that differentiates types of flavors preferred (e.g., menthol, fruit) among young adults. Among young adults (18-24 years of age), the 2013-2014 National Adult Tobacco Survey (NATS) reported the top three flavor types used by product. Young adult flavored smokeless tobacco product users reported using menthol/mint (80.6 percent), fruit (13.9 percent), and clove/spice/herb (7.7 percent) (Ref. 54). Young adult flavored waterpipe users reported using fruit (73.5 percent), menthol/mint (18 percent), and candy/chocolate/other sweet (17.3 percent). Young adult flavored cigar/cigarillo/little cigar users reported using fruit (61.4 percent), alcohol (21.9 percent), and candy/chocolate/other sweet (20.8 percent) (Ref. 54).

    6. Adults' Use of Flavors in Tobacco Products

    Cross-sectional data from Wave 1 of the PATH Study (Ref. 37) indicate that adult (25 years or older) established tobacco product users also often use flavored products (44.8 percent). Specifically, 35.6 percent of cigarette smokers (menthol), 63.2 percent of ENDS users, 47.8 percent of cigar smokers, 68.7 percent of waterpipe users, and 48.7 percent of smokeless tobacco product users reported use of flavored products at Wave 1 (2013-2014). Among established users of cigarettes and other tobacco products (polyusers), 68.9 percent use at least one flavored product.

    The 2013-2014 NATS study data (among adults aged 18 years or older) suggested that the tendency to use flavored e-cigarettes and flavored cigars differed by cigarette smoking status. Never cigarette smokers tended to use flavored e-cigarettes more than other groups. Specifically, findings indicated that, among users of non-cigarette tobacco products, never-cigarette smokers had the highest proportion of flavored e-cigarette use (84.8 percent), followed by 78.1 percent of recent quitters and 63.2 percent of current cigarette smokers. The study also indicated, among users of non-cigarette tobacco products, that 43.8 percent of current cigarette smokers reported smoking flavored cigars, with 30.8 percent of never smokers and 38.9 percent of recent former smokers reporting smoking flavored cigars (Ref. 54). The 2013-2014 NATS study also reported flavor types used by product among adults aged 18 and over. Users of flavored smokeless tobacco reported using menthol/mint (76.9 percent), clove/spice/herb (12.3 percent), fruit (10.8 percent), and candy/chocolate/other sweet (4.5 percent) (Ref. 54). Flavored waterpipe users reported using fruit (74 percent), menthol/mint (18.9 percent), candy/chocolate/other sweet (17.4 percent), clove/spice/herb (4.3 percent), alcohol (3.2 percent), and other flavored (3 percent). Flavored e-cigarette users reported using fruit (44.9 percent), menthol/mint (43.9 percent), candy/chocolate/other sweet (25.7 percent), clove/spice/herb (7 percent), other flavored (6.1 percent), and alcohol flavors (4 percent) (Ref. 54). Flavored cigar, cigarillo, and little cigar users reported using fruit (52.4 percent), candy/chocolate/other sweet (22 percent), alcohol (14.5 percent), menthol/mint (12.9 percent), clove/spice/herb (8.1 percent) and other flavors (2.9 percent). Flavored pipe smokers reported using fruit (56.6 percent), candy/chocolate/other sweet (26.5 percent), and menthol/mint (24.8 percent) (Ref. 54).

    Among adult e-cigarette users, a study with experienced exclusive e-cigarette and dual (e-cigarette and cigarette) users (aged 18 years or older) found that bitterness and harshness are negatively associated with liking e-cigarettes, while sweetness and “coolness” are positively associated with liking them (Ref. 55). In addition, sweetness appeared to have a greater impact than coolness on liking (Ref. 55).

    7. Flavors May Contain or Form Toxic Compounds

    Evidence exists regarding the toxicity of flavors, specifically certain ingredients in those flavors that have been used in tobacco products. Of particular concern for combusted or heated tobacco products is that toxicity also may result from the chemicals formed when flavors are heated or burned (Refs. 56 through 60). Diacetyl and acetyl propionyl, which are flavor ingredients that have been found in e-liquids, are highly irritating volatile organic compounds (Refs. 56 and 60). There is scientific evidence showing a link between repeated inhalation exposures to these flavor ingredients and adverse respiratory health outcomes in humans (Ref. 60). Finally, we note that certain substances may be authorized as a food additive or may be considered “generally recognized as safe” (GRAS) for certain uses in food. However, being authorized as a food additive or being considered GRAS, in and of itself, does not mean that the substances are safe when used in a tobacco product. The food additive approval or GRAS status of a substance applies only to specific intended uses in food, and are not supported by studies that account for inhalation toxicity. Importantly, exposure to chemicals via the inhalation route can have very different effects from oral exposure, and most tobacco products are inhaled (Ref. 61). For example, direct “portal of entry” effects to the respiratory tract, which is relatively more sensitive than the gastrointestinal tract, can occur upon inhalation exposure. There are also important metabolic differences between the two routes of exposure: After oral ingestion, a substance can be detoxified through “first-pass metabolism” in the liver before reaching systemic circulation. By contrast, substances introduced into the body via inhalation go directly into systemic circulation without the same potential for detoxification (Ref. 61).

    D. The Potential Role of Flavors in Facilitating Transition From Cigarettes to Tobacco Products That May Pose Less Risk

    FDA also is aware of self-reported information suggesting that the availability of flavors in some noncombusted tobacco products (e.g., ENDS) may help some adult users decrease their cigarette use and transition away from combusted products to potentially less harmful products (Refs. 62 and 63). Reports from a focus group of eleven e-cigarette users, nine of whom switched to e-cigarettes from smoking a half-pack per day or more of cigarettes, suggest that the ability of consumers to personalize their e-liquids by mixing and matching flavors could contribute to e-cigarette appeal among cigarette smokers (Ref. 62). In one survey using an online convenience sample (i.e., self-selected respondents recruited from online vape forums), respondents indicated that flavor variety was “very important” in reducing or quitting smoking (Ref. 63). Almost half of the respondents in that survey indicated that a reduction in available flavors would “increase craving[s] for tobacco cigarettes and would make reducing or completely substituting smoking less likely” (Ref. 63).

    The issues surrounding the use of flavors in tobacco products involve various considerations. While data show significant youth appeal and continued growth in youth and young adult use of flavored tobacco products, which can lead to lifelong tobacco product use, self-reported information from a study (Ref. 63) shows that some flavors in ENDS may play a positive role in helping some adults transition away from cigarettes to potentially less harmful products. In addition, we note that, currently, no ENDS have been approved as effective cessation aids. In the preamble to the deeming rule, FDA discussed the evidence available to date, and found that some systematic reviews found insufficient data to draw a conclusion about the efficacy of e-cigarettes as cessation aids (81 FR 28973 at 29037). A recent systematic review by the National Academies of Sciences, Engineering, and Medicine found “limited evidence that e-cigarettes may be effective aids to promote smoking cessation,” and that “there is moderate evidence from observational studies that more frequent use of e-cigarettes is associated with increased likelihood of cessation,” thus, the evidence remains inconclusive (Ref. 64).

    II. Requests for Comments and Information

    FDA is seeking comments (including comments on this document and the data presented), data, research results, and other information related to the following topics. Please explain your responses and provide any evidence or other information supporting them.

    • For the purposes of the questions in this ANPRM, when seeking comments, data, research results, and other information on “flavors,” FDA is seeking information relating to the following (as applicable): (1) Artificial or natural flavor additives, compounds, constituents, or ingredients or any other flavoring ingredient in a tobacco product, including its components or parts; (2) the multisensory experience of a flavor during use of tobacco products; (3) flavor representations (including descriptors), either explicit or implicit, in or on the labeling, advertising, and packaging of tobacco products; and (4) any other means that impart flavor or represent that tobacco products are flavored. The foregoing is intended only to provide guidance to commenters and is not intended to limit or restrict the information they may submit. Additionally, for purposes of the questions in the ANPRM:

    • “Youth” means under age 18; and

    • “Young adult” means ages 18 through 24.

    FDA intends to use the information submitted in response to this Federal Register document, its independent scientific knowledge, and other appropriate information to inform regulatory actions FDA might take with respect to flavors in tobacco products. When submitting information, provide evidence by product class (e.g., cigarettes, cigars, pipes) for each topic, when available. If it exists, discuss the influence of flavors by flavor type/category (e.g., fruit, candy, menthol) for each topic. Also, provide information regarding any positive or negative effects that may result from a regulatory action FDA might take with respect to flavors in tobacco products, including, but not limited to, health implications and economic impacts. We ask that commenters clearly identify the section and question number associated with their responsive comments and information.

    A. The Role of Flavors (Other Than Tobacco) in Tobacco Products

    1. Provide studies or information regarding the role of flavors (other than tobacco) generally in tobacco products. If the response relies on research in other areas (e.g., consumer products), discuss the appropriateness of extrapolating from such research to tobacco products.

    B. Flavors (Other Than Tobacco) and Initiation and Patterns of Tobacco Product Use, Particularly Among Youth and Young Adults

    2. Provide studies or information regarding the role of flavors (other than tobacco) in initiation and/or patterns of use of combusted tobacco products, particularly among youth and young adults.

    3. Provide studies or information regarding the role of flavors (other than tobacco) in initiation and/or patterns of use of noncombusted tobacco products, particularly among youth and young adults.

    4. Provide studies or information regarding the role of flavors (other than tobacco) in noncombusted tobacco products on initiation of tobacco product use or progression to use of other tobacco products (for example, from noncombusted to combusted tobacco products), particularly among youth and young adults.

    C. Flavors (Other Than Tobacco) and Cessation, Dual Use, and Relapse Among Current and Former Tobacco Product Users

    5. Provide studies or information regarding the role of flavors (other than tobacco) in helping adult cigarette smokers reduce cigarette use and/or switch to potentially less harmful tobacco products.

    6. Provide studies or information regarding the role of flavors (other than tobacco) in noncombusted tobacco products on the likelihood of: (1) Cessation of combusted tobacco products use, (2) cessation of all tobacco product use, and (3) uptake of dual use of combusted and noncombusted tobacco products among current and former tobacco product users. Include information from, and define, all populations: Youth, young adults, and adults (and any subgroup thereof, if applicable).

    7. Provide studies or information regarding the role of flavors (other than tobacco) in noncombusted products on the likelihood of: (1) Delayed or impeded cessation among users who would have otherwise quit combusted tobacco product use, or (2) delayed or impeded cessation among users who would have otherwise quit all tobacco product use. Include information from, and define, all populations: Youth, young adults, and adults (and any subgroup thereof, if applicable).

    8. Provide studies or information regarding the role of flavors (other than tobacco) in noncombusted tobacco products on the likelihood that former combusted tobacco product users relapse. Include information from, and define, all populations: Youth, young adults, and adults (and any subgroup thereof, if applicable).

    D. Additional Public Health Considerations

    9. Provide studies or information regarding the potential toxicity or adverse health effects to the user or others from any flavors (e.g., flavor additives, compounds, or ingredients) in tobacco products. These adverse health outcomes may include, but are not limited to, cancer or adverse respiratory, cardiac, or reproductive/development effects. Of particular interest are studies or information on inhalation exposure to any flavor. Provide studies or information on what, if any, toxic chemicals might be formed from the heating or burning of tobacco products with flavors and the potential toxicity or health risks that might result from these formed chemicals.

    10. Provide studies or information on the impact, whether intended or unintended, of public health efforts by local jurisdictions, States, and members of the international community to impose restrictions on the manufacture, marketing, sale or distribution of all or a subset of tobacco products with flavors (other than tobacco), including but not limited to cigars, ENDS, menthol cigarettes, and smokeless tobacco products.

    11. Provide studies or information regarding consumer perceptions of the health risks of tobacco products with flavors (other than tobacco) when compared to other tobacco products, both with and without flavors. Include information from, and define, all populations: Youth, young adults, and adults (and any subgroup thereof, if applicable).

    12. Provide studies or information regarding consumer perceptions, if any, of the addictiveness of tobacco products with flavors (other than tobacco). Include information from, and define, all populations: Youth, young adults, and adults (and any subgroup thereof, if applicable).

    E. Tobacco Product Standards

    13. All Flavors:

    a. Are there any specific flavors for which FDA should establish a tobacco product standard? If so, which flavors (e.g., flavor additives, compounds, or ingredients) and why?

    b. With respect to your response to the previous question, what level (e.g., maximum, minimum, prohibition) should FDA establish to protect the public health, and why?

    14. If FDA were to establish a tobacco product standard prohibiting or restricting flavors, to which types of tobacco products should the standard apply (e.g., combusted, noncombusted, both), and why?

    15. Menthol Flavor:

    a. FDA has carefully reviewed the data it received in response to the 2013 ANPRM on menthol in cigarettes (78 FR 44484, July 24, 2013). Provide any additional data or information about the role of menthol in cigarettes, particularly regarding the role menthol plays in smoking initiation and in the likelihood of smoking cessation for all populations (youth, young adult, adult).

    b. What additional evidence exists on the likelihood that smokers would completely switch to another tobacco product, or start dual use with another product, in the event of a tobacco product standard prohibiting or limiting menthol in cigarettes?

    c. What is the role, if any, that menthol plays in use of tobacco products other than cigarettes, including, but not limited to, cigars and ENDS?

    F. Sale or Distribution Restrictions

    16. FDA may consider restrictions on the sale and distribution of flavored tobacco products. Possible restrictions could include restrictions on the advertising and promotion of tobacco products with flavors; on access to tobacco products with flavors; and/or on the label, labeling, and/or packaging of tobacco products with flavors. These restrictions could include requirements to bear warnings or disclosure statements. What such restrictions, if any, should FDA consider and why?

    G. Other Actions and Considerations

    17. To the extent that flavors may pose both (1) potential benefits to adult smokers who might consider switching to a noncombusted flavored tobacco product with lower individual risk and (2) potential risks to nonusers who might initiate use of tobacco products through flavored tobacco products or to current users who might progress to flavored tobacco products with higher individual risks, how should FDA assess and balance these benefits and risks?

    18. Provide studies or information on the role of tobacco flavor in tobacco products in initiation, patterns of use of tobacco products (particularly with respect to progression from non-combusted to combusted tobacco products or from combusted to non-combusted), reduction in use of combustible tobacco products and cessation of tobacco products. Include information from, and define, all populations: Youth, young adults, and adults (and any subgroup thereof, if applicable).

    19. Provide information on whether manufacturing process(es) affect product flavor. Describe any such manufacturing process(es), including the specific products that use the process(es), as well as specific flavors used in the process(es).

    20. Provide analyses regarding any other tobacco product standard, regulatory action, or other action that FDA could implement that you believe would more effectively reduce the harms caused by flavors in tobacco products to better protect the public health than the tobacco product standards or other regulatory actions discussed in the preceding questions.

    21. Discuss any other tobacco product standard, regulatory action, or other activity that FDA could pursue that would complement or increase the effectiveness of the potential tobacco product standards or other regulatory actions discussed in the preceding questions.

    22. Are there any flavors that especially appeal to youth, young adults, or other specific age group? If so, how are such flavors distinguished from other flavors?

    23. To the extent that you have identified a tobacco product standard or other regulatory action in response to the prior questions, provide additional information and comments on: (1) The technical achievability of compliance with the tobacco product standard or other regulatory action you identified; and (2) how FDA could maximize compliance and public health benefits.

    24. If FDA were to establish a tobacco product standard prohibiting or restricting flavors in tobacco products, what evidence is there, if any, that consumers would start to flavor their own tobacco products?

    25. What data may be used to assess and analyze the range and variety of flavored tobacco products that are currently available to consumers? How can available sources of information, such as manufacturer registrations and/or product listings with FDA, be used in this assessment?

    III. References

    The following references are on display in the Dockets Management Staff (see ADDRESSES) and are available for viewing by interested persons between 9 a.m. and 4 p.m., Monday through Friday; they are also available electronically at https://www.regulations.gov. FDA has verified the website addresses, as of the date this document publishes in the Federal Register, but websites are subject to change over time.

    1. U.S. Department of Health and Human Services, “Preventing Tobacco Use Among Youth and Young Adults: A Report of the Surgeon General, 2012.” 2. U.S. Department of Health and Human Services, “E-cigarette Use Among Youth and Young Adults: A Report of the Surgeon General, 2016.” 3. Courtemanche, C.J., M.K. Palmer, and M.F. Pesko, “Influence of the Flavored Cigarette Ban on Adolescent Tobacco Use,” American Journal of Preventive Medicine, 52(5):e139-e146, 2017. 4. U.S. Department of Health and Human Services, “The Health Consequences of Smoking—50 Years of Progress: A Report of the Surgeon General, 2014.” 5. Jacobsen, L.K., J.H. Krystal, W.E. Mencl, et al., “Effects of Smoking and Smoking Abstinence on Cognition in Adolescent Tobacco Smokers,” Biological Psychiatry, 57(1):56-66, 2005. 6. Musso, F., F. Bettermann, G. Vucurevic, et al., “Smoking Impacts on Prefrontal Attentional Network Function in Young Adult Brains,” Psychopharmacology (Berl), 191(1):159-169, 2007. 7. Chaiton, M., L. Diemert, J.E. Cohen, et al., “Estimating the Number of Quit Attempts It Takes to Quit Smoking Successfully in a Longitudinal Cohort of Smokers,” BMJ Open, 6(6):e011045, 2016. 8. Babb, S., A. Malarcher, G. Schauer, et al., “Quitting Smoking Among Adults—United States, 2000-2015,” Morbidity and Mortality Weekly Report, 65(52):1457-1464, 2017. 9. Small, D.M. and B.G. Green, “A Proposed Model of a Flavor Modality.” In: M.M. Murray and M.T. Wallace, M.T. (Eds.), The Neural Bases of Multisensory Processes, Chapter 36. Boca Raton FL: CRC Press/Taylor & Francis, 2012. 10. Piqueras-Fiszman, B. and C. Spence (Eds.), Multisensory Flavor Perception: From Fundamental Neuroscience Through to the Marketplace. Cambridge: Woodhead Publishing, 2016. 11. Etiévant, P., E. Guichard, C. Salles, et al., (Eds.), Flavor: From Food to Behaviors, Wellbeing and Health. Philadelphia: Elsevier Science, 2016. 12. Beauchamp, G.K. and J.A. Mennella, “Flavor Perception in Human Infants: Development and Functional Significance,” Digestion, 83 Suppl 1:1-6, 2011. 13. Cowart, B., G. Beauchamp, and J. Mennella, “Development of Taste and Smell in the Neonate.” In: R. Polin and S. Abman, (Eds.), Fetal and Neonatal Physiology, pp.1899-1907. Philadelphia: Elsevier Saunders, 2011. 14. Mennella, J.A., M.Y. Pepino, and D.R. Reed, “Genetic and Environmental Determinants of Bitter Perception and Sweet Preferences,” Pediatrics, 115(2):e216-e222, 2005. 15. Desor, J.A. and G.K. Beauchamp, “Longitudinal Changes in Sweet Preferences in Humans,” Physiology and Behavior, 39(5):639-641, 1987. 16. Enns, M.P., T.B. Van Itallie, and J.A. Grinker, “Contributions of Age, Sex and Degree of Fatness on Preferences and Magnitude Estimations for Sucrose in Humans,” Physiology and Behavior, 22(5):999-1003, 1979. 17. De Graaf, C. and E.H. Zandstra, “Sweetness Intensity and Pleasantness in Children, Adolescents, and Adults,” Physiology and Behavior, 67(4):513-520, 1999. 18. Hayes, J.E. and S. Johnson, “Sensory Aspects of Bitter and Sweet Tastes During Early Childhood,” Nutrition Today, 52(2):S41-S51, 2017. 19. Carpenter, C.M., G.F. Wayne, J.L. Pauly, et al., “New Cigarette Brands With Flavors That Appeal to Youth: Tobacco Marketing Strategies,” Health Affairs, 24(6):1601-1610, 2005. 20. Cummings, K.M., C.P. Morley, J.K. Horan, et al., “Marketing to America's Youth: Evidence From Corporate Documents,” Tobacco Control, 11 Suppl 1(suppl 1):15-17, 2002. 21. Manning, K.C., K.J. Kelly, and M.L. Comello, “Flavoured Cigarettes, Sensation Seeking and Adolescents' Perceptions of Cigarette Brands,” Tobacco Control, 18(6):459-465, 2009. 22. Harris, B., “Menthol: A Review of Its Thermoreceptor Interactions and Their Therapeutic Applications,” International Journal of Aromatherapy, 16(3-4):117-131, 2006. 23. Galeotti, N., L. Di Cesare Mannelli, G. Mazzanti, et al., “Menthol: A Natural Analgesic Compound,” Neuroscience Letters, 322(3):145-148, 2002. 24. Nishino, T., Y. Tagaito, and Y. Sakurai, “Nasal Inhalation of L-Menthol Reduces Respiratory Discomfort Associated With Loaded Breathing,” American Journal of Respiratory and Critical Care Medicine, 156(1):309-313, 1997. 25. Lawrence, D., B. Cadman, and A.C. Hoffman, “Sensory Properties of Menthol and Smoking Topography,” Tobacco Induced Diseases, 9 Suppl 1(Suppl 1):S3, 2011. 26. Garten, S. and R.V. Falkner, “Continual Smoking of Mentholated Cigarettes May Mask the Early Warning Symptoms of Respiratory Disease,” Preventive Medicine, 37(4):291-296, 2003. 27. Brown, J.E., W. Luo, L.M. Isabelle, et al., “Candy Flavorings in Tobacco,” New England Journal of Medicine, 370(23):2250-2252, 2014. 28. Chen, C., L.M. Isabelle, W.B. Pickworth, et al., “Levels of Mint and Wintergreen Flavorants: Smokeless Tobacco Products vs. Confectionery Products,” Food and Chemical Toxicology: An International Journal Published for the British Industrial Biological Research Association, 48(2):755-763, 2010. 29. Rolls, E.T., “Flavor: Brain Processing.” In: P. Etievant, E. Guichard, C. Salles, et al., (Eds.), Flavor: From Food to Behaviors, Wellbeing and Health, pp. 143-160. Philadelphia: Elsevier Science, 2016. 30. Touzani, K., R.J. Bodnar, and A. Sclafani, “Neuropharmacology of Learned Flavor Preferences,” Pharmacology, Biochemistry, and Behavior, 97(1):55-62, 2010. 31. Palmatier, M.I., J.E. Lantz, L.C. O'Brien, and S.P. Metz, “Effects of Nicotine on Olfactogustatory Incentives: Preference, Palatability, and Operant Choice Tests,” Nicotine & Tobacco Research, 15(9):1545-1554, 2013. 32. Singh, T., R.A. Arrazola, C.G. Corey, et al., “Tobacco Use Among Middle and High School Students—United States, 2011-2015,” Morbidity and Mortality Weekly Report, 65(14):361-367, 2016. 33. Jamal, A., A. Gentzke, S.S. Hu, et al., “Tobacco Use Among Middle and High School Students—United States, 2011-2016,” Morbidity and Mortality Weekly Report, 66(23):597-603, 2017. 34. Miech, R.A., L.D. Johnston, P.M. O'Malley, et al., Monitoring the Future, National Survey Results on Drug Use, 1975-2016: Overview, Key Findings on Adolescent Drug Use. Ann Arbor: Institute for Social Research, The University of Michigan, 2017. 35. Couch, E.T., E. Darius, M.M. Walsh, et al., “Smokeless Tobacco Decision-Making Among Rural Adolescent Males in California,” Journal of Community Health, 42(3):544-550, 2017. 36. Ambrose, B.K., H.R. Day, B. Rostron, et al., “Flavored Tobacco Product Use Among US Youth Aged 12-17 Years, 2013-2014,” Journal of the American Medical Association, 314(17):1871-1873, 2015. 37. Villanti, A.C., A.L. Johnson, B.K. Ambrose, et al., “Flavored Tobacco Product Use in Youth and Adults: Findings From the First Wave of the PATH Study (2013-2014),” American Journal of Preventive Medicine, 53(2):139-151, 2017. 38. Berg, C.J., “Preferred Flavors and Reasons for E-cigarette Use and Discontinued Use Among Never, Current, and Former Smokers,” International Journal of Public Health, 61(2):225-236, 2016. 39. Corey, C.G., B.K. Ambrose, B.J. Apelberg, et al., “Flavored Tobacco Product Use Among Middle and High School Students—United States, 2014,” Morbidity and Mortality Weekly Report, 64(38):1066-1070, 2015. 40. Miech, R.A., J. E. Schulenburg, L.D. Johnston, et al., “National Adolescent Drug Trends in 2017: Findings Released.” Monitoring the Future: Ann Arbor, MI, 2017, available at http://www.monitoringthefuture.org. 41. Villanti, A.C., P.D. Mowery, C.D. Delnevo, et al., “Changes in the Prevalence and Correlates of Menthol Cigarette Use in the USA, 2004-2014,” Tobacco Control, 25(Suppl 2):ii14-ii20, 2016. 42. Substance Abuse and Mental Health Services Administration, “Behavioral Health Trends in the United States: Results from the 2014 National Survey on Drug Use and Health,” available at https://www.samhsa.gov/data/sites/default/files/NSDUH-FRR1-2014/NSDUH-FRR1-2014.pdf. 43. Food and Drug Administration, “Preliminary Scientific Evaluation of the Possible Public Health Effects of Menthol Versus Nonmenthol Cigarettes,” 2013. 44. Fernander, A., M.K. Rayens, M. Zhang, et al., “Are Age of Smoking Initiation and Purchasing Patterns Associated With Menthol Smoking?” Addiction, 105 Suppl 1(s1):39-45, 2010. 45. Hersey, J.C., SW Ng, J.M. Nonnemaker, et al., “Are Menthol Cigarettes a Starter Product for Youth?” Nicotine & Tobacco Research, 8(3):403-413, 2006. 46. Song, A.V., H.E. Morrell, J.L. Cornell, et al., “Perceptions of Smoking-Related Risks and Benefits as Predictors of Adolescent Smoking Initiation,” American Journal of Public Health, 99(3):487-492, 2009. 47. Huang, L.-L., H.M. Baker, C. Meernik, et al., “Impact of Non-menthol Flavours in Tobacco Products on Perceptions and Use Among Youth, Young Adults and Adults: A Systematic Review,” Tobacco Control, 26(6):709-719, 2017. 48. Kowitt, S.D., C. Meernik, H.M. Baker, et al., “Perceptions and Experiences With Flavored Non-Menthol Tobacco Products: A Systematic Review of Qualitative Studies,” International Journal of Environmental Research and Public Health, 14(4):338, 2017. 49. Nonnemaker, J., J. Hersey, G. Homsi, et al., “Initiation With Menthol Cigarettes and Youth Smoking Uptake,” Addiction, 108(1):171-178, 2013. 50. Krishnan-Sarin, S., M.E. Morean, D.R. Camenga, et al., “E-cigarette Use Among High School and Middle School Adolescents in Connecticut,” Nicotine & Tobacco Research, 17(7):810-818, 2015. 51. Kong, G., M. E. Morean, D. A. Cavallo, et al., “Reasons for Electronic Cigarette Experimentation and Discontinuation among Adolescents and Young Adults,” Nicotine & Tobacco Research, 2015 Jul;17(7):847-54. 52. Audrain-McGovern, J., A.A. Strasser, and E.P. Wileyto, “The Impact of Flavoring on the Rewarding and Reinforcing Value of E-cigarettes With Nicotine Among Young Adult Smokers,” Drug and Alcohol Dependence, 166:263-267, 2016. 53. Goldenson, N.I., M.G. Kirkpatrick, J.L. Barrington-Trimis, et al., “Effects of Sweet Flavorings and Nicotine on the Appeal and Sensory Properties of E-cigarettes Among Young Adult Vapers: Application of a Novel Methodology,” Drug and Alcohol Dependence, 168:176-180, 2016. 54. Bonhomme, M.G., E. Holder-Hayes, B.K. Ambrose, et al., “Flavoured Non-Cigarette Tobacco Product Use Among US Adults: 2013-2014,” Tobacco Control, 25(Suppl 2):ii4-ii13, 2016. 55. Kim, H., J. Lim, S.S. Buehler, et al., “Role of Sweet and Other Flavours in Liking and Disliking of Electronic Cigarettes,” Tobacco Control, 25(Suppl 2):ii55-ii61, 2016. 56. Allen, J.G., S.S. Flanigan, M. LeBlanc, et al., “Flavoring Chemicals in E-cigarettes: Diacetyl, 2, 3-Pentanedione, and Acetoin in a Sample of 51 Products, Including Fruit-, Candy-, and Cocktail-Flavored E-cigarettes,” Environmental Health Perspectives, 124(6):733-739, 2016. 57. Hutzler, C., M. Paschke, S. Kruschinski, et al., “Chemical Hazards Present in Liquids and Vapors of Electronic Cigarettes,” Archives of Toxicology, 88(7):1295-1308, 2014. 58. Tierney, P.A., C.D. Karpinski, J.E. Brown, et al., “Flavour Chemicals in Electronic Cigarette Fluids,” Tobacco Control, 25(e1):e10-e15, 2016. 59. Farsalinos, K.E., K.A. Kistler, G. Gillman, et al., “Evaluation of Electronic Cigarette Liquids and Aerosol for the Presence of Selected Inhalation Toxins,” Nicotine & Tobacco Research, 17(2):168-174, 2015. 60. National Institute for Occupational Safety and Health, Criteria for a Recommended Standard: Occupational Exposure to Diacetyl and 2,3-Pentanedione. Cincinnati, OH: U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, National Institute for Occupational Safety and Health, 2016. 61. Klaassen, C.D., Casarett & Doull's Toxicology: The Basic Science of Poisons, Eighth Edition. McGraw-Hill Education, 2013. 62. Barbeau, A.M., J. Burda, and M. Siegel, “Perceived Efficacy of E-cigarettes Versus Nicotine Replacement Therapy Among Successful E-cigarette Users: A Qualitative Approach,” Addiction Science & Clinical Practice, 8(1):5, 2013. 63. Farsalinos, K.E., G. Romagna, D. Tsiapras, et al., “Impact of Flavour Variability on Electronic Cigarette Use Experience: An Internet Survey,” International Journal of Environmental Research and Public Health, 10(12):7272-7282, 2013, available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3881166/. 64. Stratton, K., Y. Kwan, and D. L. Eaton (Eds.), Public Health Consequences of E-Cigarettes, National Academies of Sciences, Engineering, and Medicine, Washington DC: The National Academies Press, 2018. Doi: https://doi.org/10.17226/24952 (prepublication copy.) Dated: March 15, 2018. Leslie Kux, Associate Commissioner for Policy.
    [FR Doc. 2018-05655 Filed 3-20-18; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF THE INTERIOR Bureau of Indian Affairs [189D0102DR/DS5A300000/DR.5A311.IA000118] 25 CFR Part 273 RIN 1076-AF24 Education Contracts Under Johnson-O'Malley Act AGENCY:

    Bureau of Indian Affairs, Interior.

    ACTION:

    Proposed rule.

    SUMMARY:

    This proposed rule would update one section of the regulation regarding when Indian students are eligible for benefits of education contracts under the Johnson-O'Malley Act (JOM), to codify past practice and a Federal District Court ruling by deleting the requirement that the Indian student must have 1/4 or more degree of Indian blood.

    DATES:

    Please submit comments by May 21, 2018.

    ADDRESSES:

    You may submit comments by any of the following methods:

    You may submit comments by any of the following methods:

    Federal rulemaking portal: http://www.regulations.gov. The rule is listed under the agency name “Bureau of Indian Affairs.” Email: [email protected]. Include the number 1076-AF24 in the subject line of the message. Mail: Elizabeth Appel, Office of Regulatory Affairs & Collaborative Action, U.S. Department of the Interior, 1849 C Street NW, MIB-4660-MS, Washington, DC 20240. Include the number 1076-AF24 in the subject line of the message. Hand delivery: Elizabeth Appel, Office of Regulatory Affairs & Collaborative Action, U.S. Department of the Interior, 1849 C Street NW, MS 4660, Washington, DC 20240. Include the number 1076-AF24 in the subject line of the message.

    We cannot ensure that comments received after the close of the comment period (see DATES) will be included in the docket for this rulemaking and considered. Comments sent to an address other than those listed above will not be included in the docket for this rulemaking.

    FOR FURTHER INFORMATION CONTACT:

    Elizabeth Appel, Director, Office of Regulatory Affairs & Collaborative Action, (202) 273-4680; [email protected].

    SUPPLEMENTARY INFORMATION: I. Summary of Rule II. Procedural Requirements A. Regulatory Planning and Review (E.O. 12866, 13563, and 13771) B. Regulatory Flexibility Act C. Small Business Regulatory Enforcement Fairness Act D. Unfunded Mandates Reform Act E. Takings (E.O. 12630) F. Federalism (E.O. 13132) G. Civil Justice Reform (E.O. 12988) H. Consultation With Indian Tribes (E.O. 13175) I. Paperwork Reduction Act J. National Environmental Policy Act K. Effects on the Energy Supply (E.O. 13211) L. Clarity of This Regulation M. Public Availability of Comments I. Summary of Rule

    This rule would revise a section of the regulations governing education contracts under the JOM. The JOM authorizes the Secretary of the Interior to enter into contracts with States, schools, and private organizations, and to expend appropriated funds in support of Indian students under those contracts. See, 25 U.S.C. 254. The regulations at 25 CFR part 273 implement this authority.

    This rule would revise section 273.12 of the regulations to correctly reflect the requirements for students eligible for JOM funding. Currently, the regulations state that Indian students are eligible for benefits of a JOM contract if they are of 1/4 or more degree Indian blood and are recognized by the Secretary as being eligible for Bureau services. Prior to the 1990's, the Department implemented this regulation to require 1/4 or more degree Indian blood. In 1990, the United States District Court for the District of Nevada stated that this regulatory requirement was too restrictive. See, Nevada Urban Indians, Inc. v. United States, CV-N-90-238 BRT (September 12, 1990). Since that Court ruling, the Department has implemented this regulatory provision as requiring only membership in a federally recognized Tribe. The Department does not require a certain degree of Indian blood. As such, this rule would delete the requirement for a blood degree quantum. With this deletion, the rule codifies both the Court ruling and past practice.

    II. Procedural Requirements A. Regulatory Planning and Review (E.O. 12866, 13563, and 13771)

    Executive Order (E.O.) 12866 provides that the Office of Information and Regulatory Affairs (OIRA) at the Office of Management and Budget (OMB) will review all significant rules. OIRA has determined that this rule is not significant.

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

    E.O. 13771 of January 30, 2017, directs Federal agencies to reduce the regulatory burden on regulated entities and control regulatory costs. E.O. 13771, however, applies only to significant regulatory actions, as defined in Section 3(f) of E.O. 12866. Therefore, E.O. 13771 does not apply to this proposed rule.

    B. Regulatory Flexibility Act

    The Department of the Interior certifies that this rule will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

    C. Small Business Regulatory Enforcement Fairness Act

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

    (a) Does not have an annual effect on the economy of $100 million or more because it merely codifies eligibility requirements that were already established by past practice and a Federal District Court ruling.

    (b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions because this rule affects only individuals' eligibility for certain education contracts.

    (c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises because this rule affects only individuals' eligibility for certain education contracts.

    D. Unfunded Mandates Reform Act

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

    E. Takings (E.O. 12630)

    This rule does not affect a taking of private property or otherwise have taking implications under Executive Order 12630 because this rule does not affect individual property rights protected by the Fifth Amendment or involve a compensable “taking.” A takings implication assessment is not required.

    F. Federalism (E.O. 13132)

    Under the criteria in section 1 of Executive Order 13132, this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement because the rule affects only individuals' eligibility under certain education contracts. A federalism summary impact statement is not required.

    G. Civil Justice Reform (E.O. 12988)

    This rule complies with the requirements of Executive Order 12988. Specifically, this rule: (a) Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and (b) Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.

    H. Consultation With Indian Tribes (E.O. 13175)

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

    I. Paperwork Reduction Act

    This rule does not contain any information collection requirements, and a submission to the Office of Management and Budget under the Paperwork Reduction Act is not required.

    J. National Environmental Policy Act

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

    K. Effects on the Energy Supply (E.O. 13211)

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

    L. Clarity of This Regulation

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

    (a) Be logically organized;

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

    (c) Use clear language rather than jargon;

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

    (e) Use lists and tables wherever possible.

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

    M. Public Availability of Comments

    Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

    List of Subjects in 25 CFR Part 273

    Government contracts, Indians—education, Reporting and recordkeeping requirements.

    For the reasons stated in the preamble, the Department of the Interior, Bureau of Indian Affairs, proposes to amend part 273 in Title 25 of the Code of Federal Regulations as follows:

    PART 273—EDUCATION CONTRACTS UNDER JOHNSON-O'MALLEY ACT 1. The authority citation for part 273 continues to read as follows: Authority:

    Secs. 201-203, Pub. L. 93-638, 88 Stat. 2203, 2213-2214 (25 U.S.C. 455-457), unless otherwise noted.

    2. Revise § 273.12 to read as follows:
    § 273.12 Eligible students.

    Indian students, from age 3 years through grade(s) 12, except those who are enrolled in Bureau or sectarian operated schools, shall be eligible for benefits provided by a contract pursuant to this part if they are recognized by the Secretary as being eligible for Bureau services. Priority shall be given to contracts:

    (a) Which would serve Indian students on or near reservations; and

    (b) Where a majority of such Indian students will be members of the Tribe(s) of such reservations (as defined in § 273.2(o)).

    Dated: February 27, 2018. John Tahsuda, Principal Deputy Assistant Secretary—Indian Affairs, Exercising the Authority of the Assistant Secretary—Indian Affairs.
    [FR Doc. 2018-05749 Filed 3-20-18; 8:45 am] BILLING CODE 4337-15-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 100 [Docket Number USCG-2018-0154] RIN 1625-AA08 Special Local Regulation; USS PORTLAND Commissioning, Portland, OR AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    The Coast Guard proposes to establish a temporary regulated area for certain waters of the Willamette River. This action is necessary to provide for the safety of life on these navigable waters near Port of Portland Terminal 2, Portland, OR during a naval vessel commissioning ceremony on April 14-23, 2018. This proposed rulemaking would prohibit persons and vessels from being in the regulated area unless authorized by the Captain of the Port Columbia River or a designated representative. We invite your comments on this proposed rulemaking.

    DATES:

    Comments and related material must be received by the Coast Guard on or before April 5, 2018.

    ADDRESSES:

    You may submit comments identified by docket number USCG-2018-0154 using the Federal eRulemaking Portal at http://www.regulations.gov. See the “Public Participation and Request for Comments” portion of the SUPPLEMENTARY INFORMATION section for further instructions on submitting comments.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions about this proposed rulemaking, call or email LCDR Laura Springer, MSU Portland Waterways; 503-240-9319, email [email protected].

    SUPPLEMENTARY INFORMATION: I. Table of Abbreviations CFR Code of Federal Regulations DHS Department of Homeland Security FR Federal Register NPRM Notice of Proposed Rulemaking § Section U.S.C. United States Code II. Background, Purpose, and Legal Basis

    On April 14-23, 2018 the U.S. Navy will be conducting ceremonial activities for the commissioning of the USS PORTLAND. The commissioning activities will take place at the Port of Portland Terminal 2, with a regulated area extending approximately 500 yards on each side of the naval vessel on the Willamette River in Portland, OR. To provide for the safety of participants, spectators, support and transiting vessels, the Coast Guard proposes to temporarily restrict vessel traffic during the commissioning activities.

    The purpose of this rulemaking is to ensure the safety of vessels and the navigable waters within the regulated area, during, and after the scheduled event and to prevent any disruption to the commissioning ceremonies. The Coast Guard proposes this rulemaking under authority in 33 U.S.C. 1233.

    III. Discussion of Proposed Rule

    The Coast Guard proposes to establish a regulated area from 11:59 p.m. on April 14, 2018 to 11:59 p.m. on April 23, 2018. The regulated area would cover all navigable waters at Port of Portland Terminal 2 on the Willamette River. Specifically, the navigable waters bounded by the following points: 45°33.34′ N, 122°42.34′ W; 45°33.12′ N, 122°42.51′ W; 45°32.71′ N, 122°41.37′ W; and 45°32.58′ N, 122°41.54′ W. The duration of the regulated area is intended to ensure the safety of vessels, bystanders, and the navigable waters and to prevent any disruption of the events associated with the commissioning ceremony of the USS PORTLAND. The Coast Guard, at its discretion, would allow the passage of affected vessels. No vessel or person would be permitted to enter the regulated area without obtaining permission from the COTP or a designated representative. The regulatory text we are proposing appears at the end of this document.

    IV. Regulatory Analyses

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

    A. Regulatory Planning and Review

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

    This regulatory action determination is based on the size, location, and duration of the regulated area. Although this proposal would prevent traffic from transiting portions of the Willamette River, the effect of this regulation would not be significant due to the limited duration that the regulated area would be in effect and would allow waterway users to enter or transit through the zone when deemed safe by the on-scene patrol commander. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the regulated area.

    B. Impact on Small Entities

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

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

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

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

    C. Collection of Information

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

    D. Federalism and Indian Tribal Governments

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

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

    E. Unfunded Mandates Reform Act

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

    F. Environment

    We have analyzed this proposed 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 made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves a regulated area lasting less than 10 days that would limit entry within approximately 500 yards of the USS PORTLAND. Normally such actions are categorically excluded from further review under paragraph L61 of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A preliminary Memorandum for Record supporting this determination is available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

    G. Protest Activities

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

    V. Public Participation and Request for Comments

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

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

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

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

    List of Subjects in 33 CFR Part 100

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

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

    PART 100—SAFETY OF LIFE ON NAVIGABLE WATERS 1. The authority citation for part 100 continues to read as follows: Authority:

    33 U.S.C. 1233; 33 CFR 1.05-1.

    2. Add § 100.T13-0154 to read as follows:
    § 100.T13-0154 Special Local Regulations; USS PORTLAND Commissioning, Portland, OR.

    (a) Regulated area. The following area is designated as a regulated area: All navigable waters of the Willamette River within 500 yards of the USS PORTLAND while moored at the Port of Portland Terminal 2, specifically the navigable waters bounded by the following points: 45°33.34′ N, 122°42.34′ W; 45°33.12′ N, 122°42.51′ W; 45°32.71′ N, 122°41.37′ W; and 45°32.58′ N, 122°41.54′ W.

    (b) Special local regulations. (1) The Coast Guard may patrol the regulated area under the direction of a designated Coast Guard Patrol Commander (PATCOM). PATCOM may be contacted on Channel 16 VHF-FM (156.8 MHz) by the call sign “PATCOM.” Official patrol vessels may consist of any Coast Guard, Coast Guard Auxiliary, state, or local law enforcement vessels assigned or approved by the Captain of the Port, Sector Columbia River.

    (2) Entrance into the regulated area is prohibited unless authorized by the PATCOM. The PATCOM may control the movement of all vessels in the regulated area. When hailed or signaled to stop by an official patrol vessel, a vessel must come to an immediate stop and comply with the lawful directions issued. Failure to comply with a lawful direction may result in expulsion from the area, citation for failure to comply, or both.

    (3) All vessels permitted to transit the regulated area must maintain a separation of at least 100 yards away from the USS PORTLAND.

    (c) Enforcement period. This regulated area is subject to enforcement from 11:59 p.m. on April 14, 2018 to 11:59 p.m. on April 23, 2018.

    D.G. Throop, RADM, U.S. Coast Guard, Commander, Thirteenth Coast Guard District.
    [FR Doc. 2018-05685 Filed 3-20-18; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG-2018-0128] RIN 1625-AA09 Drawbridge Operation Regulation; Ebey Slough, Marysville, WA AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    The Coast Guard proposes to modify the operating schedule that governs the Burlington Northern Santa Fe Railroad Bridge 38.3 across Ebey Slough, mile 1.5, at Marysville, WA. The modified schedule would change the operating schedule of the Burlington Northern Santa Fe Railway (BNSF) Railroad Bridge 38.3 from on-demand opening to a four hours advance notice for an opening.

    DATES:

    Comments and related material must reach the Coast Guard on or before May 7, 2018.

    ADDRESSES:

    You may submit comments identified by docket number USCG-2018-0128 using Federal eRulemaking Portal at http://www.regulations.gov.

    See the “Public Participation and Request for Comments” portion of the SUPPLEMENTARY INFORMATION section below for instructions on submitting comments.

    See the “Public Participation and Request for Comments” portion of the SUPPLEMENTARY INFORMATION section below for instructions on submitting comments.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this proposed rule, call or email Steven M. Fischer, Bridge Administrator, Thirteenth Coast Guard District Bridge Program Office, telephone 206-220-7282; email [email protected].

    SUPPLEMENTARY INFORMATION: I. Table of Abbreviations CFR Code of Federal Regulations DHS Department of Homeland Security FR Federal Register NPRM Notice of Proposed Rulemaking § Section U.S.C. United States Code BNSF Burlington Northern Santa Fe Railway II. Background, Purpose and Legal Basis

    The Coast Guard is issuing this rule under authority in 33 U.S.C. 499. BNSF has requested a change to the operating schedule of the BNSF Railroad Bridge 38.3 across Ebey Slough, mile 1.5, in order to save on operating costs for the bridge. The proposed regulation will allow BNSF to not have a bridge operator attending the bridge until an opening request has been received. BNSF's proposal would allow a bridge operator to be able to open the swing span within four hours after receiving a request for an opening. Marine traffic on Ebey Slough consists of vessels ranging from small pleasure craft, small tribal fishing boats and occasionally medium size pleasure motor vessels. There has been a reduction in waterway usage following the City of Maryville's closure of the only upriver marina on Ebey Slough with very few bridge opening requests within the past three years. Only two marine vessel opening requests were received in 2017 and both were received longer than four hours prior to needing an opening.

    The subject bridge currently operates in accordance in 33 CFR 117.5. This bridge provides a vertical clearance approximately 5 feet above mean high water and approximately 16 feet above mean low water when in the closed-to-navigation position.

    III. Discussion of Proposed Rule

    This proposed rule would amend 33 CFR 117.1059 to provide specific requirements for the operation of BNSF Railroad Bridge 38.3. These specific requirements are in addition to or vary from the general requirements that apply to all drawbridges across the navigable waters of the United States. This proposed rule reasonably accommodates waterway users while reducing BNSF's burden in operating the bridge. We have not identified any impacts on marine navigation with this proposed rule. An alternate route is available into Steamboat Slough via Union Slough at high tide.

    IV. Regulatory Analyses

    We developed this proposed rule considering numerous statutes and Executive order (s) related to rulemaking. Below we summarize our analyses based on these statutes and Executive order (s), and we discuss First Amendment rights of protestors.

    A. Regulatory Planning and Review

    E.O. 12866 and E.O. 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This NPRM has not been designated a “significant regulatory action,” under Executive order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget. This regulatory action determination is based on the ability for the bridge to open on signal after receiving at least four hours advanced notice and not delay passage of any mariner. Vessels not requiring an opening may pass under the bridge at any time. An alternate route is available into Steamboat Slough via Union Slough at high tide.

    B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities. While some owners or operators of vessels intending to transit the bridge may be small entities, for the reasons stated in section IV.A above, this proposed rule would not have a significant economic impact on any vessel owner or operator.

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

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

    C. Collection of Information

    This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.).

    D. Federalism and Indian Tribal Government

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

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

    E. Unfunded Mandates Reform Act

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

    F. Environment

    We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This proposed rule simply promulgates the operating regulations or procedures for drawbridges. Normally such actions are categorically excluded from further review, under figure 2-1, paragraph (32) (e), of the Instruction.

    A preliminary Record of Environmental Consideration and a Memorandum for the Record not required for this proposed rule. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

    G. Protest Activities

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

    V. Public Participation and Request for Comments

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

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

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

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

    List of Subjects in 33 CFR Part 117

    Bridges.

    For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 117 as follows:

    PART 117—DRAWBRIDGE OPERATION REGULATIONS 1. The authority citation for part 117 continues to read as follows: Authority:

    33 U.S.C. 499; 33 CFR 1.05-1; Department of Homeland Security Delegation No. 0170.1.

    2. In § 117.1059 add paragraph (i) to read as follows:
    § 117.1059 Snohomish River, Steamboat Slough, and Ebey Slough; Marysville, WA.

    (i) The draw of the Burlington Northern Santa Fe Railroad Bridge across Ebey Slough, mile 1.5, near Marysville, shall open on signal if at least a four hour notice is given. The opening signal is one prolonged blast followed by one short blast. During freshets, a drawtender shall be in constant attendance, and the draw shall open on signal when so ordered by the District Commander.

    David G. Throop, Rear Admiral, U.S. Coast Guard, Commander, Thirteenth Coast Guard District.
    [FR Doc. 2018-05701 Filed 3-20-18; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket Number USCG-2018-0198] RIN 1625-AA00 Safety Zones; Recurring Safety Zones in Captain of the Port Sault Sainte Marie Zone AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    The Coast Guard proposes to amend its recurring safety zones regulations in the Captain of the Port Sault Sainte Marie Zone. This proposed rule would update eighteen safety zone locations, dates, and sizes, add three safety zones, remove two established safety zones, and reformat the regulations into an easier to read table format. These proposed amendments will protect spectators, participants, and vessels from the hazards associated with annual marine events and firework shows, and improve the clarity and readability of the regulation. We invite your comments on this proposed rulemaking.

    DATES:

    Comments and related material must be received by the Coast Guard on or before April 20, 2018.

    ADDRESSES:

    You may submit comments identified by docket number USCG-2018-0198 using the Federal eRulemaking Portal at http://www.regulations.gov. Type the docket number (USCG-2018-0198) in the “SEARCH” box and click “SEARCH.” See the “Public Participation and Request for Comments” portion of the SUPPLEMENTARY INFORMATION section for further instructions on submitting comments.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this rule, call or email Lieutenant Junior Grade Sean V. Murphy, Chief of Waterways Management, Coast Guard Sector Sault Sainte Marie, U.S. Coast Guard; telephone 906-635-3223, email [email protected].

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

    On April 18, 2011 the Coast Guard published an NPRM in the Federal Register (76 FR 21677) entitled “Safety Zones; Annual Events Requiring Safety Zones in the Captain of the Port Sault Sainte Marie Zone.” The NPRM proposed to establish 20 permanent safety zones for annually recurring events in the Captain of the Port Sault Sainte Marie Zone under § 165.918. The NPRM was open for comment for 30 days.

    On June 2, 2011 the Coast Guard published the Final Rule in the Federal Register (76 FR 31839), after receiving no comments on the NPRM. Since that time there have been changes to the events that were listed in the Final Rule and additional annual events have been established. Through this proposed rule the Coast Guard seeks to update § 165.918 to reflect the current status of recurring marine events in the Captain of the Port Sault Sainte Marie Zone.

    The legal basis for this proposed rulemaking is found at 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.

    III. Discussion of Proposed Rule

    The Captain of the Port Sault Sainte Marie (COTP) has determined that an amendment to the recurring safety zones list as published in 33 CFR 165.918 will be necessary to: update the location, date, and size of eighteen existing safety zones (Marquette Fourth of July Celebration Fireworks, Munising Fourth of July Celebration Fireworks, Sault Sainte Marie Fourth of July Celebration Fireworks, Mackinac Island Fourth of July Celebration Fireworks, Harbor Springs Fourth of July Celebration Fireworks, Bay Harbor Yacht Club Fourth of July Celebration Fireworks, Petoskey Fourth of July Celebration Fireworks, Boyne City Fourth of July Celebration Fireworks, Alpena Fourth of July Celebration Fireworks, Charlevoix Venetian Festival Friday Night Fireworks, Charlevoix Venetian Festival Saturday Night Fireworks, Elk Rapids Harbor Days Fireworks, Jordan Valley Freedom Festival Fireworks, Canada Day Celebration Fireworks, Festival of Fireworks Celebration Fireworks, Grand Marais Splash In, National Cherry Festival Airshow, and National Cherry Festival Finale Fireworks), establish three safety zones (Mackinaw Area Visitors Bureau Friday Night Fireworks, Nautical City Fireworks, and Traverse City Fourth of July Celebration Fireworks), remove National Cherry Festival Fourth of July Celebration Fireworks and St. Ignace Fourth of July Celebration Fireworks safety zones, and format the existing regulations into a table format. The purpose of this rule is to ensure safety of vessels and the navigable waters in the safety zone before, during, and after the scheduled events and to improve the overall clarity and readability of the rule. The regulatory text we are proposing appears at the end of this document.

    The amendments to this proposed rule are necessary to ensure the safety of vessels and people during annual events taking place on or near federally maintained waterways in the Captain of the Port Sault Sainte Marie Zone. Although this proposed rule will be in effect year-round, the specific safety zones listed in Table 165.918 will only be enforced during a specified period of time.

    When a Notice of Enforcement for a particular safety zone is published, entry into, transiting through, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Sault Sainte Marie, or his or her designated representative. The Captain of the Port Sault Sainte Marie or his or her designated representative may be contacted via VHF Channel 16 or telephone at 906-635-3319. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.

    V. Regulatory Analyses

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

    A. Regulatory Planning and Review

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

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

    B. Impact on Small Entities

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

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

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

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

    C. Collection of Information

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

    D. Federalism and Indian Tribal Governments

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

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

    E. Unfunded Mandates Reform Act

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

    F. Environment

    We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves the update of eighteen safety zone locations, dates, and sizes, the addition of three safety zones, the removal of two safety zones, and the reformatting of regulations into an easier to read table format. Normally such actions are categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A preliminary Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

    G. Protest Activities

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

    V. Public Participation and Request for Comments

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

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

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

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

    List of Subjects in 33 CFR Part 165

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

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

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

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

    2. Revise § 165.918 to read as follows:
    § 165.918 Safety Zones; Recurring Safety Zones in Captain of the Port Sault Sainte Marie.

    (a) Regulations. The following regulations apply to the safety zones listed in Table 165.918 of this section:

    (1) In accordance with the general regulations in §  165.23 of this part, entry into, transiting, or anchoring within any of the safety zones listed in this section is prohibited unless authorized by the Captain of the Port Sault Sainte Marie, or a designated representative.

    (2) All persons and vessels must comply with the instructions of the Coast Guard Captain of the Port Sault Sainte Marie or a designated representative. Upon being hailed by the U.S. Coast Guard by siren, radio, flashing light or other means, the operator of a vessel shall proceed as directed.

    (3) When a safety zone established by this section is being enforced, all vessels must obtain permission from the Captain of the Port Sault Sainte Marie or a designated representative to enter, move within, or exit that safety zone. Vessels and persons granted permission to enter the safety zone must obey all lawful orders or directions of the Captain of the Port Sault Sainte Marie or a designated representative. While within a safety zone, all vessels shall operate at the minimum speed necessary to maintain a safe course.

    (b) Suspension of Enforcement. If the event concludes earlier than scheduled, the Captain of the Port Sault Sainte Marie or a designated representative will issue a Broadcast Notice to Mariners notifying the public that enforcement of the respective safety zone is suspended.

    (c) Exemption. Public vessels, defined as any vessel owned or operated by the United States or by State or local governments, operating in an official capacity are exempted from the requirements of this section.

    (d) Waiver. For any vessel, the Captain of the Port Sault Sainte Marie or a designated representative may, at his or her discretion, waive any of the requirements of this section, upon finding that circumstances are such that application of this section is unnecessary or impractical for the purposes of safety or environmental safety.

    (e) Contacting the Captain of the Port. While a safety zone listed in this section is enforced, the Captain of the Port Sault Sainte Marie or a designated representative may be contacted via VHF Channel 16 or telephone at (906) 635-3319. Vessel operators given permission to enter or operate in a safety zone must comply with all directions given to them by the Captain of the Port Sault Sainte Marie, or a designated representative.

    (f) Notice of Enforcement. The Coast Guard will provide advance notice of the enforcement including specific date, time, and size of the safety zone being enforced in Table 165.918, by issuing a Notice of Enforcement, as well as, a Broadcast Notice to Mariners.

    Table 165.918 [Datum NAD 1983] Event Location Event date (1) Mackinaw Area Visitors Bureau Friday Night Fireworks; Mackinaw City, MI All U.S. navigable waters of the Straits of Mackinac within an approximate 1000-foot radius from the fireworks launch site located in position 45°46′35.48″ N, 084°43′16.20″ W. Friday nights between late May and early September. (2) Jordan Valley Freedom Festival Fireworks; East Jordan, MI All U.S. navigable waters of Lake Charlevoix, near the City of East Jordan, within the arc of a circle with an approximate 1200-foot radius from the fireworks launch site in position 45°09′18″ N, 085°07′48″ W. This event historically occurs in mid to late June. (3) Grand Marais Splash In; Grand Marais, MI All U.S. navigable waters within the southern portion of West Bay bound within the following coordinates: 46°40′22.08″ N, 085°59′0.12″ W, 46°40′22.08″ N, 85°58′22.08″ W, and 46°40′14.64″ N, 85°58′19.56″ W, with the West Bay shoreline forming the South and West boundaries of the zone. This event historically occurs mid to late June. (4) Fireworks Over the Bay!; St. Ignace, MI All U.S. navigable waters of East Moran Bay within an approximate 1000-foot radius from the fireworks launch site at the end of the Starline Mill Slip, centered in position: 45°52′24.62″ N, 084°43′18.13″ W. On or around July 4th and Saturdays beginning late June to early September. (5) National Cherry Festival Airshow Safety Zone; Traverse City, MI All U.S. navigable waters of the West Arm of Grand Traverse Bay within a box bounded by the following coordinates: 44°46′51.6″ N, 085°38′15.6″ W, 44°46′23.4″ N, 085°38′22.8″ W, 44°46′30.00″ N, 085°35′42.00″ W, and 44°46′2.34″ N, 085°35′50.4″ W. This event historically occurs late June or early July. (6) National Cherry Festival Finale Fireworks; Traverse City, MI All U.S. navigable waters of the West Arm of Grand Traverse Bay within the arc of a circle with an approximate 1200-foot radius from the fireworks launch site located on a barge in position 44°46′12″ N, 085°37′06″ W. This event historically occurs late June or early July. (7) Canada Day Celebration Fireworks; Sault Sainte Marie, MI All U.S. navigable waters of the St. Marys River within an approximate 1400-foot radius from the fireworks launch site, centered approximately 160 yards north of the U.S. Army Corp of Engineers Soo Locks North East Pier, at position 46°30′20.40″ N, 084°20′17.64″ W. On or around July 1. (8) Marquette Fourth of July Celebration Fireworks; Marquette, MI All U.S. navigable waters of Marquette Harbor within an approximate 1200-foot radius of the fireworks launch site, centered in position 46°32′23.0″ N, 087°23′13.1″ W. On or around July 4th. (9) Munising Fourth of July Celebration Fireworks; Munising, MI All U.S. navigable waters of South Bay within an approximate 800-foot radius from the fireworks launch site at the end of the Munising City Dock, centered in position: 46°24′50.08″ N, 086°39′08.52″ W. On or around July 4th. (10) Sault Sainte Marie Fourth of July Celebration Fireworks; Sault Sainte Marie, MI All U.S. navigable waters of the St. Marys River within an approximate 1000-foot radius around the eastern portion of the U.S. Army Corp of Engineers Soo Locks North East Pier, centered in position: 46°30′19.66″ N, 084°20′31.61″ W. On or around July 4th. (11) Mackinac Island Fourth of July Celebration Fireworks; Mackinac Island, MI All U.S. navigable waters of Lake Huron within an approximate 750-foot radius of the fireworks launch site, centered approximately 1000 yards west of Round Island Passage Light, at position 45°50′34.92″ N, 084°37′38.16″ W. On or around July 4th. (12) Harbor Springs Fourth of July Celebration Fireworks; Harbor Springs, MI All U.S. navigable waters of Lake Michigan and Harbor Springs Harbor within the arc of a circle with an approximate 1200-foot radius from the fireworks launch site located on a barge in position 45°25′30″ N, 084°59′06″ W. On or around July 4th. (13) Bay Harbor Yacht Club Fourth of July Celebration Fireworks; Petoskey, MI All U.S. navigable waters of Lake Michigan and Bay Harbor Lake within the arc of a circle with an approximate 750-foot radius from the fireworks launch site located on a barge in position 45°21′50″ N, 085°01′37″ W. On or around July 4th. (14) Petoskey Fourth of July Celebration Fireworks; Petoskey, MI All U.S. navigable waters of Lake Michigan and Petoskey Harbor, in the vicinity of Bay Front Park, within the arc of a circle with an approximate 1200-foot radius from the fireworks launch site located in position 45°22′40″ N, 084°57′30″ W. On or around July 4th. (15) Boyne City Fourth of July Celebration Fireworks; Boyne City, MI All U.S. navigable waters of Lake Charlevoix, in the vicinity of Veterans Park, within the arc of a circle with an approximate 1400-foot radius from the fireworks launch site located in position 45°13′30″ N, 085°01′40″ W. On or around July 4th. (16) Alpena Fourth of July Celebration Fireworks; Alpena, MI All U.S. navigable waters of Lake Huron within an approximate 1000-foot radius of the fireworks launch site located near the end of Mason Street, South of State Avenue, at position 45°02′42″ N, 083°26′48″ W. On or around July 4th. (17) Traverse City Fourth of July Celebration Fireworks; Traverse City, MI All U.S. navigable waters of the West Arm of Grand Traverse Bay within the arc of a circle with an approximate 1200-foot radius from the fireworks launch site located on a barge in position 44°46′12″ N, 085°37′06″ W. On or around July 4th. (18) Charlevoix Venetian Festival Friday Night Fireworks; Charlevoix, MI All U.S. navigable waters of Lake Charlevoix, in the vicinity of Depot Beach, within the arc of a circle with an approximate 1200-foot radius from the fireworks launch site located on a barge in position 45°19′08″ N, 085°14′18″ W. This event historically occurs in late July. (19) Charlevoix Venetian Saturday Night Fireworks; Charlevoix, MI All U.S. navigable waters of Round Lake within the arc of a circle with an approximate 500-foot radius from the fireworks launch site located on a barge in position 45°19′03″ N, 085°15′18″ W. This event historically occurs in late July. (20) Elk Rapids Harbor Days Fireworks; Elk Rapids, MI All U.S. navigable waters within the arc of a circle with an approximate 750-foot radius from the fireworks launch site located on a barge in position 44°54′6.95″ N, 85°25′3.11″ W. This event historically occurs in early August. (21) Nautical City Fireworks; Rogers City, MI All U.S. navigable waters within the arc of a circle with an approximate 750-foot radius from the fireworks launch site located near Harbor View Road in position 45°25′04.72″ N, 83°47′51.21″ W. Early August.
    Dated: March 16, 2018. M.R. Broz, Captain, U.S. Coast Guard, Captain of the Port Sault Sainte Marie.
    [FR Doc. 2018-05721 Filed 3-20-18; 8:45 am] BILLING CODE 9110-04-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2017-0006; FRL-9974-76] Receipt of Several Pesticide Petitions Filed for Residues of Pesticide Chemicals in or on Various Commodities AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Notice of filing of petitions and request for comment.

    SUMMARY:

    This document announces the Agency's receipt of several initial filings of pesticide petitions requesting the establishment or modification of regulations for residues of pesticide chemicals in or on various commodities.

    DATES:

    Comments must be received on or before April 20, 2018.

    ADDRESSES:

    Submit your comments, identified by docket identification (ID) number and the pesticide petition number (PP) of interest as shown in the body of this document, by one of the following methods:

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

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

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

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

    FOR FURTHER INFORMATION CONTACT:

    Robert McNally, Biopesticides and Pollution Prevention Division (7511P), main telephone number: (703) 305-7090, email address: [email protected]; or Michael Goodis, Registration Division (7505P), main telephone number: (703) 305-7090, email address: [email protected]. The mailing address for each contact person is: Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001. As part of the mailing address, include the contact person's name, division, and mail code. The division to contact is listed at the end of each pesticide petition summary.

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

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

    • Crop production (NAICS code 111).

    • Animal production (NAICS code 112).

    • Food manufacturing (NAICS code 311).

    • Pesticide manufacturing (NAICS code 32532).

    If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT for the division listed at the end of the pesticide petition summary of interest.

    B. What should I consider as I prepare my comments for EPA?

    1. Submitting CBI. Do not submit this information to EPA through regulations.gov or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

    2. Tips for preparing your comments. When preparing and submitting your comments, see the commenting tips at http://www.epa.gov/dockets/comments.html.

    3. Environmental justice. EPA seeks to achieve environmental justice, the fair treatment and meaningful involvement of any group, including minority and/or low-income populations, in the development, implementation, and enforcement of environmental laws, regulations, and policies. To help address potential environmental justice issues, the Agency seeks information on any groups or segments of the population who, as a result of their location, cultural practices, or other factors, may have atypical or disproportionately high and adverse human health impacts or environmental effects from exposure to the pesticides discussed in this document, compared to the general population.

    II. What action is the Agency taking?

    EPA is announcing its receipt of several pesticide petitions filed under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, requesting the establishment or modification of regulations in 40 CFR part 180 for residues of pesticide chemicals in or on various food commodities. The Agency is taking public comment on the requests before responding to the petitioners. EPA is not proposing any particular action at this time. EPA has determined that the pesticide petitions described in this document contain the data or information prescribed in FFDCA section 408(d)(2), 21 U.S.C. 346a(d)(2); however, EPA has not fully evaluated the sufficiency of the submitted data at this time or whether the data support granting of the pesticide petitions. After considering the public comments, EPA intends to evaluate whether and what action may be warranted. Additional data may be needed before EPA can make a final determination on these pesticide petitions.

    Pursuant to 40 CFR 180.7(f), a summary of each of the petitions that are the subject of this document, prepared by the petitioner, is included in a docket EPA has created for each rulemaking. The docket for each of the petitions is available at http://www.regulations.gov.

    As specified in FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), EPA is publishing notice of the petitions so that the public has an opportunity to comment on these requests for the establishment or modification of regulations for residues of pesticides in or on food commodities. Further information on the petitions may be obtained through the petition summaries referenced in this unit.

    Notice of Filing—Amended Tolerance Exemptions for Inerts (Except PIPS)

    PP IN-11082. (EPA-HQ-OPP-2018-0036). Pyxis Regulatory Consulting, Inc., 4110 136TH ST CT NW GIG Harbor, WA 98332, on behalf of Aceto Corporation, 4 Tri Harbor Court, Port Washington, NY 11050, requests to amend an exemption from the requirement of a tolerance for residues of 1,1- difluoroethane (CAS Reg. No. 75-37-6) when used as an inert ingredient (propellant) in pesticide formulations applied to growing crops and raw agricultural commodities after harvest pre- and post-harvest under 40 CFR 180.910 and animals under 40 CFR 180.930 to include use in bird repellant pesticide formulations. The petitioner believes no analytical method is needed because it is not required for an exemption from the requirement of a tolerance. Contact: RD.

    Notice of Filing—Amended Tolerances for Non-Inerts

    PP 7E8631. (EPA-HQ-OPP-2017-0694). The Interregional Research Project No. 4 (IR-4), Rutgers, The State University of New Jersey, 500 College Road East, Suite 201 W, Princeton, NJ 08540, proposes upon establishment of tolerances referenced above under “New Tolerances” to remove existing tolerances in 40 CFR part 180. 672 for residues of the insecticide cyantraniliprole, 3-bromo-1-(3-chloro-2-pyridinyl)-N-[4-cyano-2-methyl-6-[((methylamino) carbonyl]phenyl]-1H-pyrazole-5-carboxamide, including its metabolites and degradates in or on the following commodities in or on Brassica head and stem, subgroup 5A at 3.0 ppm; Brassica leafy vegetables, subgroup 5B at 30 ppm; and Vegetable, leafy, except Brassica, group 4 at 20 ppm. The high-pressure liquid chromatography with ESI—MS/MS detection is used to measure and evaluate cyantraniliprole. Contact: RD.

    Notice of Filing—New Tolerance Exemptions for Inerts (Except PIPS)

    1. PP IN-11005. (EPA-HQ-OPP-2017-0179). Acadia Regulatory Consulting, LLC, 331 W King Road, Ithaca, NY 14850, on behalf of Lidan, Inc., 30 Wall Street, 8th Floor, New York, NY 10005, requests to establish an exemption from the requirement of a tolerance for residues for lignosulfonic acid, calcium, comp. with 1,6 hexanediamine polymer with guanidine hydrochloride (1:1), (CAS Reg. No. 1905409-74-6) with a minimum number average molecular weight (in amu) of 10,000 Daltons, when used as a inert ingredient in pesticide formulations under 40 CFR 180.960. The petitioner believes no analytical method is needed because it is not t required for an exemption from the requirement of a tolerance. Contact: RD.

    2. PP IN-11058. (EPA-HQ-OPP-2017-0614). Exponent, 1150 Connecticut Ave. NW, Washington, DC 20036, on behalf of Aceto Corporation, 4 Tri Harbor Court, Port Washington, NY 11050, requests to establish an exemption from the requirement of a tolerance for residues of tin oxide (CAS Reg. No. 18282-10-5) when used as an inert ingredient (colorant) in pesticide formulations applied to growing crops under 40 CFR 180.920 for seed treatment use only at a maximum concentration of 40% by weight in a pesticide formulation. The petitioner believes no analytical method is needed because it is not required for an exemption from the requirement of a tolerance. Contact: RD.

    3. PP IN-11077. (EPA-HQ-OPP-2017-0663). Spring Trading Comp., on behalf of Evonik Corp., P.O. Box 34628, Richmond, VA 23234, requests to establish an exemption from the requirement of a tolerance for residues of 2,4,7,9-tetramethyl-5-decyne-4,7-diol (CAS Reg. No. 126-86-3) and 2,5,8,11-tetramethyldodec-6-yne-5,8-diol (CAS Reg. No. 68227-33-8) under 40 CFR 180.910 and 180.930 when used an inert ingredient (surfactant) in pesticide formulations. The petitioner believes no analytical method is needed because it is not required for an exemption from the requirement of a tolerance. Contact: RD.

    Notice of Filing—New Tolerance Exemptions for Non-Inerts (Except PIPS)

    1. PP 7E8560. (EPA-HQ-OPP-2017-0705). Interregional Research Project Number 4 (IR-4), Rutgers, The State University of New Jersey, 500 College Rd. East, Suite 201 W, Princeton, NJ 08540, requests to establish an exemption from the requirement of a tolerance in 40 CFR part 180 for residues of the microbial pesticide Metschnikowia fructicola strain NRRL Y-27328 in or on stone fruit, group 12-12; small fruit vine climbing, except fuzzy kiwifruit, subgroup 13-07F; and low growing berry, subgroup 13-07G. The petitioner believes no analytical method is needed because an exemption from the requirement of a tolerance is being proposed. Contact: BPPD.

    2. PP 7F8563. (EPA-HQ-OPP-2017-0748). Green Ravenna, Via Matteotti, 16-48121, Ravenna, Italy (in care of toXcel, LLC, 7140 Heritage Village Plaza, Gainesville, VA 20155), requests to establish an exemption from the requirement of a tolerance in 40 CFR part 180 for residues of the fungicide Pseudomonas sp. strain DSMZ 13134 in or on all food commodities. The petitioner believes no analytical method is needed because an exemption from the requirement of a tolerance is being proposed. Contact: BPPD.

    3. PP 7F8574. (EPA-HQ-OPP-2017-0703). OmniLytics, Inc., 9100 South 500 West, Sandy, UT 84070, requests to establish an exemption from the requirement of a tolerance in 40 CFR part 180 for residues of the bactericide bacteriophage active against Xanthomonas citri subsp. citri in or on citrus fruit, including orange, grapefruit, pummelo, mandarin, lemon, lime, tangerine, tangelo, and kumquat. The petitioner believes no analytical method is needed because an exemption from the requirement of a tolerance is being proposed. Contact: BPPD.

    4. PP 7F8621. (EPA-HQ-OPP-2017-0727). Andermatt Biocontrol AG, Stahlermatten 6, CH-6146 Grossdietwil, Switzerland (in care of SciReg, Inc., 12733 Director's Loop, Woodbridge, VA 22192), requests to establish an exemption from the requirement of a tolerance in 40 CFR part 180 for residues of the insecticide Autographa californica multiple nucleopolyhedrovirus (AcMNPV) strain FV#11 in or on all food commodities. The petitioner believes no analytical method is needed because AcMNPV strain FV#11 is naturally occurring and is not toxic or pathogenic; therefore, exposure to any residues of AcMNPV strain FV#11 should not be of concern for human health. Contact: BPPD.

    Notice of Filing—New Tolerances for Inerts

    PP IN-11030. (EPA-HQ-OPP- 2017-0591). Interregional Research Project No. 4, Rutgers, The State University of New Jersey, 500 College Road East, Suite 201 W, Princeton, NJ 08540 requests to amend a tolerance in 40 CFR part 180.560 for residues of cloquintocet-mexyl (acetic acid, [(5-chloro-8-quniolinyl)oxy]-, 1-methylhexyl ester) (CAS Reg. No. 99607-70-2) and its acid metabolite (5-chloro-8-quinlinoxyacetic acid), for use as an inert ingredient (safener) in combination with existing listed active ingredients to include use in or on the raw agricultural commodities Teff, forage at 0.2 ppm; Teff, grain at 0.1 ppm; Teff, straw at 0.1]ppm; Teff, hay at 0.5 ppm. The High Performance Liquid Chromatography with Ultraviolet Detection (HPLC-UV) method is used for the determination of cloquintocet-mexyl (parent) and the HPLC-UV method allows determination of its acid metabolite for the proposed uses. Contact: RD.

    Notice of Filing—New Tolerances for Non-Inerts

    PP 7E8631. (EPA-HQ-OPP-2017-0694). The Interregional Research Project No. 4 (IR-4), Rutgers, The State University of New Jersey, 500 College Road East, Suite 201 W, Princeton, NJ 08540, requests to establish a tolerance in 40 CFR part 180.672 for residues of the insecticide cyantraniliprole, 3-bromo-1-(3-chloro-2-pyridinyl)-N-[4-cyano-2-methyl-6-[((methylamino)carbonyl]phenyl]-1H-pyrazole-5-carboxamide, including its metabolites and degradates in or on the following commodities in or on Berry, low growing, except strawberry, subgroup 13-07H, except blueberry, lowbush and lingonberry at 0.08 parts per million (ppm) (proposal to replace an existing tolerance at the same level that is only for imported Berry, low growing, except strawberry, subgroup 13-07H, with a tolerance supporting both domestic production and imported low growing berries, except strawberries); Brassica, leafy greens, subgroup 4-16B at 30 ppm; Caneberry subgroup 13-07A at 4.0 ppm; Celtuce at 20 ppm; Coffee, green bean at 0.05 ppm (proposal to replace an existing tolerance at the same level that is only for imported Coffee, green bean with a tolerance supporting both domestic production and imported coffee); Florence fennel at 20 ppm; Kohlrabi at 3.0 ppm; Leafy greens subgroup 4-16A at 20 ppm; Leaf petiole vegetable subgroup 22B at 20 ppm; and Vegetable, brassica, head and stem, group 5-16 at 3.0 ppm. The high-pressure liquid chromatography with ESI-MS/MS detection is used to measure and evaluate cyantraniliprole. Contact: RD.

    Authority:

    21 U.S.C. 346a.

    Dated: February 27, 2018. Hamaad Syed, Acting Director, Information Technology and Resources Management Division, Office of Pesticide Programs.
    [FR Doc. 2018-05639 Filed 3-20-18; 8:45 am] BILLING CODE 6560-50-P
    FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 73 [MB Docket No. 18-23; FCC 18-20] Elimination of Obligation To File Broadcast Mid-Term Report (Form 397) AGENCY:

    Federal Communications Commission.

    ACTION:

    Proposed rule.

    SUMMARY:

    In this document, the Federal Communications Commission (FCC or Commission) proposes to eliminate the rules requiring certain broadcast television and radio stations to file Form 397, the EEO Broadcast Mid-Term Report. This proposal will continue the Commission's efforts to modernize regulations and reduce unnecessary requirements that no longer serve the public interest.

    DATES:

    Comments are due on or before May 21, 2018; reply comments are due on or before June 19, 2018.

    ADDRESSES:

    You may submit comments, identified by MB Docket No. 18-23, by any of the following methods:

    Federal Communications Commission's website: http://www.fcc.gov/cgb/ecfs/. Follow the instructions for submitting comments.

    Mail: Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail (although the Commission continues to experience delays in receiving U.S. Postal Service mail). All filings must be addressed to the Commission's

    • Secretary, Office of the Secretary, Federal Communications Commission.

    People With Disabilities: Contact the FCC to request reasonable accommodations (accessible format documents, sign language interpreters, CART, etc.) by email: [email protected] or phone: (202) 418-0530 or TTY: (202) 418-0432.

    For detailed instructions for submitting comments and additional information on the rulemaking process, see the SUPPLEMENTARY INFORMATION section of this document.

    FOR FURTHER INFORMATION CONTACT:

    For additional information, contact Jonathan Mark, [email protected], of the Media Bureau, Policy Division, (202) 418-3634. Direct press inquiries to Janice Wise at (202) 418-8165.

    SUPPLEMENTARY INFORMATION:

    This is a summary of the Commission's Notice of Proposed Rulemaking (NPRM), FCC 18-20, adopted and released on February 22, 2018. The full text of this document is available electronically via the FCC's Electronic Document Management System (EDOCS) website at http://fjallfoss.fcc.gov/edocs_public/ or via the FCC's Electronic Comment Filing System (ECFS) website at http://fjallfoss.fcc.gov/ecfs2/. (Documents will be available electronically in ASCII, Microsoft Word, and/or Adobe Acrobat.) This document is also available for public inspection and copying during regular business hours in the FCC Reference Information Center, which is located in Room CY-A257 at FCC Headquarters, 445 12th Street SW, Washington, DC 20554. The Reference Information Center is open to the public Monday through Thursday from 8:00 a.m. to 4:30 p.m. and Friday from 8:00 a.m. to 11:30 a.m. The complete text may be purchased from the Commission's copy contractor, 445 12th Street SW, Room CY-B402, Washington, DC 20554. Alternative formats are available for people with disabilities (Braille, large print, electronic files, audio format), by sending an email to [email protected] or calling the Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

    Synopsis I. Notice of Proposed Rulemaking

    1. In the NPRM, we propose to eliminate the requirement in § 73.2080(f)(2) of the Commission's rules that certain broadcast television and radio stations file the Broadcast Mid-Term Report (Form 397). In response to a Public Notice launching the Commission's Modernization of Media Regulation Initiative, a number of parties have asked the Commission to consider eliminating this reporting obligation because it is unnecessary and unduly burdensome. By proposing to eliminate Form 397, we continue our efforts to modernize our regulations and reduce unnecessary requirements that no longer serve the public interest.

    2. Section 334(b) of the Communications Act of 1934, as amended (the Act), directed the Commission to revise its regulations to require a mid-term review of broadcast stations' employment practices. Although section 334(b) only applies to TV stations, the Commission currently conducts mid-term reviews for both broadcast TV and radio stations. Pursuant to this direction, and as specified in § 73.2080(f)(2), Commission staff reviews the equal employment opportunity (EEO) practices of all broadcast television stations in station employment units 1 with five or more full-time employees, and all radio stations in employment units with eleven or more full-time employees, around the midpoint of broadcasters' eight-year license terms. After completing a mid-term review, staff informs licensees of any necessary improvements in recruitment practices to ensure that they are in compliance with the Commission's EEO rules.

    1 A station employment unit is a station or a group of commonly owned stations in the same market that share at least one employee.

    3. To facilitate mid-term reviews, the Commission adopted the current Form 397 in 2002. Stations subject to mid-term reviews must file Form 397 at least four months prior to the four-year anniversary of the station's most recent license expiration date. Form 397 consists of three sections and requires stations to provide information that, with one exception, also is available in stations' public inspection files. First, stations must certify whether they have the requisite number of full-time employees to be subject to a mid-term review. Stations that do not have the requisite number of full-time employees are not required to file Form 397, but may do so if they choose. Second, stations must identify, by name and title, “a particular official with overall responsibility for equal employment opportunity at the station.” This question is also asked in Form 396, Broadcast Equal Employment Opportunity Program Report, which must be included in a station's public file.

    4. Third, all stations subject to mid-term reviews must attach to Form 397 copies of their two most recent annual EEO public file reports. Separately, pursuant to § 73.2080(c)(6) of the Commission's rules, each broadcast station must place its EEO public file report both in its public inspection file and on its website, if it has one, on an annual basis.2 The report must be retained in the public file until the station's next license renewal is granted.

    2 We note that under 47 CFR 73.2080(d), stations in small employment units with fewer than five employees are exempt from this requirement.

    5. We tentatively conclude that eliminating Form 397 will advance the Commission's goal of reducing unnecessary regulatory burdens without undermining our statutorily-required mid-term reviews of broadcaster compliance with the EEO rules. As mentioned above, nearly all the information in Form 397, such as the name of a station official with responsibility for compliance with the Commission's EEO rules and copies of a station's annual public file reports, is also available in stations' public inspection files. The only piece of information required by Form 397 that is not, to date, available in the public inspection file is whether the station has enough full-time employees to trigger a mid-term review. As discussed below, however, we do not believe that the filing of the Form 397 is the only means available by which to obtain this information. We therefore agree with NAB and other commenters that, in light of the nearly-complete transition to online public inspection files, Form 397 is no longer needed to facilitate implementation of the Commission's mid-term review obligations. We therefore tentatively agree with commenters who assert that requiring broadcasters to file Form 397 has become “redundant and unnecessarily burdensome.”

    6. We also tentatively conclude that eliminating Form 397 is consistent with section 334 of the Act. As an initial matter, because section 334 applies expressly to “television broadcast station licensees,” it does not implicate Commission regulation of radio licensees. Specifically, Section 334(a) only limits changes to certain Commission EEO regulations governing television; it prohibits revisions to EEO rules “in effect on September 1, 1992 (47 CFR 73.2080) as such regulations apply to television broadcast station licensees and permittees” and to the forms “used by such licensees and permittees to report pertinent employment data to the Commission.” The legislative history identifies those forms as FCC Forms 395-B and 396. Indeed, as noted above, the Commission originally adopted Form 397 in 2000, eight years after Congress enacted section 334 of the Act. Accordingly, based on the statutory language and legislative history, we tentatively conclude that Form 397 is not subject to the statutory limitation on revisions found in section 334(a) of the Act.

    7. As discussed above, Section 334(b) directed the Commission to revise its regulations to “require a midterm review of television broadcast station licensees' employment practices” and to “inform such licensees of necessary improvements in recruitment practices identified as a consequence of such review.” However, this provision does not require the Commission to adopt Form 397 and does not prohibit the Commission from revising or eliminating it. Because, among other reasons, the Commission will continue to conduct mid-term reviews of broadcast licensees' employment practices even if we eliminate Form 397, we tentatively conclude that section 334(b) does not bar the Commission from modifying or eliminating the Form. We also tentatively conclude that section 334(c) does not preclude the Commission from eliminating Form 397. Considered in context, subsection (c) is most reasonably read as an exception to subsection (a)'s limitation prohibiting the Commission from revising the 1992 EEO rules. While subsection (a) prohibits the Commission from revising the 1992 EEO rules, subsection (c) permits the Commission “to make nonsubstantive technical or clerical revisions” to those rules as are “necessary to reflect changes in technology, terminology, or Commission organization.” Because the limitation in (a), by its terms, does not apply to Form 397, neither does the exception to (a) that Congress carved out, as reflected in subsection (c). We seek comment on the tentative conclusions related to these statutory interpretations.

    8. We also seek comment on how the Commission should identify which stations are subject to a mid-term review, absent Form 397. Commission staff currently conducts mid-term reviews of stations that self-identify as subject to the mid-term review rule by filing Form 397. NAB proposes two possible solutions to identify stations subject to mid-term review, and we seek comment on these suggestions as well as any other approach that would allow such stations to be identified with the least necessary expenditure of resources by both regulatees and the Commission. NAB's first proposal is to require all subject stations to indicate whether they are subject to a mid-term review on their annual EEO public file report. We note that this proposal would not provide information in a format that easily could be aggregated by Commission staff and potentially would require staff to manually review each station's EEO public file reports prior to the mid-term review period to determine which stations are subject to mid-term review. These reports do not follow a prescribed uniform structure, so this information could appear in different locations and in different formats in each report. Although it appears that the costs of including this information on the annual EEO report would likely be de minimis, we seek comment on the scope of any potential costs to licensees. Would this approach constitute an overall reduction in the costs incurred by licensees with respect to mid-term reviews?

    9. Alternatively, NAB suggests modifying the online public file database itself to require all stations to indicate whether they are subject to a mid-term review as a prerequisite to filing their annual EEO public file report. If we modify the online public file database to include this information, should we adopt NAB's proposed prerequisite approach, such as by adding questions regarding staff size to each station's public file that must be answered before the station can upload its EEO public file report, or should we make some other change? Any such modification to the online file would impose information technology resource costs on the Commission and new burdens on broadcast licensees. What would be the scope of these costs for licensees? Would this approach constitute an overall reduction in the costs incurred by licensees with respect to mid-term reviews? In proposing alternatives to Form 397, commenters should keep in mind that our goal is to reduce the regulatory burden on regulatees while at the same time minimizing the administrative burden and costs on the Commission in its effort to satisfy the statutory objectives of section 334 of the Act.

    10. Additionally, we seek comment on whether we should require stations to designate a point of contact responsible for a station's EEO compliance on a more routine basis, if we eliminate Form 397. As noted above, point-of-contact information will continue to be provided through a station's Form 396. Given that Form 396 is filed only once every eight years, however, should we specify a means for stations to update their EEO points of contact more frequently? For example, should we require this information to be included in a station's annual EEO public file report? Are there other options we should consider, such as requiring this information to be included in a station's online public file? Alternatively, should we conclude that the requirement to include a specific EEO point of contact in Form 396 is sufficient?

    11. We also seek input on the relative costs and benefits of Form 397 as a means to facilitate mid-term reviews. We ask that parties explain how any benefits derived from the Form compare with the costs. Finally, we seek comment on the FCC's track record on EEO enforcement and how the agency can make improvements to EEO compliance and enforcement. Beyond the mid-term review, would elimination of Form 397 impact the FCC's ability to ensure compliance and enforcement of EEO rules, and if so, how? Similarly, if Form 397 were eliminated, what other mechanisms will the FCC have to monitor and enforce its EEO rules?

    II. Procedural Matters A. Initial Paperwork Reduction Act Analysis

    12. This document contains new information collection requirements. It seeks comment on whether and how Commission rules would need to be revised if Form 397 is eliminated, so that Commission staff would be able to determine which broadcast stations are subject to the mid-term review of employment practices, and the name and title of station employees responsible for EEO compliance. The Commission, as part of its continuing efforts to reduce paperwork burdens, invites the general public and the Office of Management and Budget (OMB) to comment on the information collection requirements contained in this document, as required by the Paperwork Reduction Act of 1995. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, we seek specific comment on how we might “further reduce the information collection burden for small business concerns with fewer than 25 employees.”

    B. Initial Regulatory Flexibility Analysis

    13. As required by the Regulatory Flexibility Act of 1980, as amended, (RFA) the Commission has prepared this Initial Regulatory Flexibility Act Analysis (IRFA) concerning the possible significant economic impact on small entities by the rules proposed in this Notice of Proposed Rulemaking (NPRM). Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments provided on the first page of the NPRM. Pursuant to the requirements established in 5 U.S.C. 603(a), The Commission will send a copy of the NPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA). In addition, the NPRM and IRFA (or summaries thereof) will be published in the Federal Register.

    14. Need for, and Objectives of, the Report and Order. The proposed rule changes stem from a Public Notice issued by the Commission in May 2017 launching an initiative to modernize the Commission's media regulations. Numerous parties in that proceeding argued for elimination of the recordkeeping requirement at issue as redundant and unnecessary. The NPRM proposes to eliminate a provision of the Commission's rules that obligate certain broadcasters to file a Broadcast Mid-Term Report documenting their compliance with the Commission's EEO requirements, without eliminating the mid-term review of employment practices.

    15. Specifically, the NPRM proposes to eliminate the requirement in 47 CFR 73.2080(f)(2) that broadcast television stations in station employment units (SEUs) with five or more full-time employees, and radio stations in SEUs with 11 or more full-time employees, file Form 397 four months prior to the date four years after their most recent license expiration date. This proposal is intended to reduce outdated regulations and unnecessary regulatory burdens that can impede competition and innovation in media markets. The NPRM also seeks comment on whether it will be necessary to make other changes to § 73.2080 or the rules governing the online public file in order for Commission staff to determine which stations are subject to the statutory mid-term review of employment practices and the name and title of station employees responsible for EEO compliance.

    16. Legal Basis. The proposed action is authorized pursuant to sections 1, 4(i), 4(j), and 334 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), and 334.

    17. Description and Estimates of the Number of Small Entities to Which the Proposed Rules Will Apply. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act.3 A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA.4 The rules proposed herein will directly affect certain small television and radio broadcast stations, and cable entities. Below is a description of these small entities, as well as an estimate of the number of such small entities, where feasible.

    3 5 U.S.C. 601(3) (incorporating by reference the definition of “small business concern” in 15 U.S.C. 632). Pursuant to 5 U.S.C. 601(3), the statutory definition of a small business applies “unless an agency, after consultation with the Office of Advocacy of the Small Business Administration and after opportunity for public comment, establishes one or more definitions of such term which are appropriate to the activities of the agency and publishes such definition(s) in the Federal Register.” 5 U.S.C. 601(3).

    4 15 U.S.C. 632. Application of the statutory criteria of dominance in its field of operation and independence are sometimes difficult to apply in the context of broadcast television. Accordingly, the Commission's statistical account of television stations may be over-inclusive.

    18. Television Broadcasting. This Economic Census category “comprises establishments primarily engaged in broadcasting images together with sound.” These establishments operate television broadcast studios and facilities for the programming and transmission of programs to the public. These establishments also produce or transmit visual programming to affiliated broadcast television stations, which in turn broadcast the programs to the public on a predetermined schedule. Programming may originate in their own studio, from an affiliated network, or from external sources. The SBA has created the following small business size standard for such businesses: Those having $38.5 million or less in annual receipts. The 2012 Economic Census reports that 751 firms in this category operated in that year. Of that number, 656 had annual receipts of $25,000,000 or less. Based on this data, we estimate that the majority of commercial television broadcasters are small entities under the applicable SBA size standard.

    19. In addition, the Commission has estimated the number of licensed commercial television stations to be 1,384. Of this total, 1,264 stations had revenues of $38.5 million or less, according to Commission staff review of the BIA Kelsey Inc. Media Access Pro Television Database (BIA) on February 24, 2017. Such entities, therefore, qualify as small entities under the SBA definition. The Commission has estimated the number of licensed noncommercial educational (NCE) television stations to be 394. The Commission, however, does not compile and does not have access to information on the revenue of NCE stations that would permit it to determine how many such stations would qualify as small entities.

    20. We note, however, that in assessing whether a business concern qualifies as “small” under the above definition, business (control) affiliations 5 must be included. Our estimate, therefore likely overstates the number of small entities that might be affected by our action, because the revenue figure on which it is based does not include or aggregate revenues from affiliated companies. In addition, another element of the definition of “small business” requires that an entity not be dominant in its field of operation. We are unable at this time to define or quantify the criteria that would establish whether a specific television broadcast station is dominant in its field of operation. Accordingly, the estimate of small businesses to which the proposed rules would apply does not exclude any television station from the definition of a small business on this basis and therefore could be over-inclusive.

    5 “[Business concerns] are affiliates of each other when one concern controls or has the power to control the other or a third party or parties controls or has the power to control both.” 13 CFR 21.103(a)(1).

    21. There are also 417 Class A stations. Given the nature of this service, we will presume that all 417 of these stations qualify as small entities under the above SBA small business size standard.

    22. Radio Stations. This economic Census category “comprises establishments primarily engaged in broadcasting aural programs by radio to the public.” The SBA has created the following small business size standard for this category: Those having $38.5 million or less in annual receipts. Census data for 2012 shows that 2,849 firms in this category operated in that year. Of this number, 2,806 firms had annual receipts of less than $25,000,000. Because the Census has no additional classifications that could serve as a basis for determining the number of stations whose receipts exceeded $38.5 million in that year, we conclude that the majority of television broadcast stations were small under the applicable SBA size standard.

    23. Apart from the U.S. Census, the Commission has estimated the number of licensed commercial AM radio stations to be 4,486 stations and the number of commercial FM radio stations to be 6,755, for a total number of 11,241. Of this total, 9,898 stations had revenues of $38.5 million or less, according to Commission staff review of the BIA Kelsey Inc. Media Access Pro Television Database (BIA) in October 2014. In addition, the Commission has estimated the number of noncommercial educational FM radio stations to be 4,111. NCE stations are non-profit, and therefore considered to be small entities.6 Therefore, we estimate that the majority of radio broadcast stations are small entities.

    6 5 U.S.C. 601(4), (6).

    24. We note again, however, that in assessing whether a business concern qualifies as “small” under the above definition, business (control) affiliations 7 must be included. Because we do not include or aggregate revenues from affiliated companies in determining whether an entity meets the applicable revenue threshold, our estimate of the number of small radio broadcast stations affected is likely overstated. In addition, as noted above, one element of the definition of “small business” is that an entity not be dominant in its field of operation. We are unable at this time to define or quantify the criteria that would establish whether a specific radio broadcast station is dominant in its field of operation. Accordingly, our estimate of small radio stations potentially affected by the proposed rules includes those that could be dominant in their field of operation. For this reason, such estimate likely is over-inclusive.

    7 “[Business concerns] are affiliates of each other when one concern controls or has the power to control the other or a third party or parties controls or has the power to control both.”

    25. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements. In this section, we identify the reporting, recordkeeping, and other compliance requirements proposed in the NPRM and consider whether small entities are affected disproportionately by any such requirements.

    26. Reporting Requirements. The NPRM does not propose to adopt reporting requirements.

    27. Recordkeeping Requirements. The NPRM does not propose to adopt recordkeeping requirements.

    28. Other Compliance Requirements. The NPRM does not propose to adopt other compliance requirements. It does seek comment on whether and how Commission rules would need to be revised if Form 397 is eliminated, so that Commission staff would be able to determine which broadcast stations are subject to the mid-term review of employment practices and the name and title of station employees responsible for EEO compliance.

    29. The proposed rule revisions, if adopted, will reduce the compliance burden on all affected Commission regulatees, including small entities, by eliminating the requirement to file Form 397. No party in the proceeding has opposed the proposals set forth in the NPRM. We thus find it reasonable to conclude that the benefits of eliminating the rules at issue will outweigh any costs.

    30. Steps Taken to Minimize Significant Economic Impact on Small Entities, and Significant Alternatives Considered. The RFA requires an agency to describe any significant, specifically small business, alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.8

    8 5 U.S.C. 603(c)(1)-(c)(4).

    31. The NPRM proposes to eliminate the obligation, imposed on certain broadcasters, to file a Broadcast Mid-Term Report on employment practices. Eliminating this requirement is intended to modernize the Commission's regulations and reduce costs and recordkeeping burdens for affected entities, including small entities. Under the current rules, affected entities must expend time and resources gathering and filing consolidated information that is largely already otherwise supplied to the Commission. As noted, the proposed rule revisions are unopposed in the media modernization docket. Thus, we anticipate that affected small entities only stand to benefit from such revisions, if adopted.

    32. Federal Rules that May Duplicate, Overlap, or Conflict with the Proposed Rule. None.

    C. Ex Parte Rules

    33. Permit-But-Disclose. This proceeding shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules. Persons making ex parte presentations must file a copy of any written presentation or a memorandum summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine period applies). Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation must (1) list all persons attending or otherwise participating in the meeting at which the ex parte presentation was made, and (2) summarize all data presented and arguments made during the presentation. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter's written comments, memoranda or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission staff during ex parte meetings are deemed to be written ex parte presentations and must be filed consistent with rule 1.1206(b). In proceedings governed by rule 1.49(f) or for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding, and must be filed in their native format (e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission's ex parte rules.

    D. Filing Requirements

    34. Comments and Replies. Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS). See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).

    Electronic Filers: Comments may be filed electronically using the internet by accessing the ECFS: http://fjallfoss.fcc.gov/ecfs2/

    Paper Filers: Parties who choose to file by paper must file an original and one copy of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.

    • All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW, Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of before entering the building.

    • Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9050 Junction Drive, Annapolis Junction, MD 20701.

    • U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW, Washington, DC 20554.

    35. Availability of Documents. Comments, reply comments, and ex parte submissions will be available for public inspection during regular business hours in the FCC Reference Center, Federal Communications Commission, 445 12th Street SW, CY-A257, Washington, DC 20554. These documents will also be available via ECFS. Documents will be available electronically in ASCII, Microsoft Word, and/or Adobe Acrobat.

    36. People with Disabilities. To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to [email protected] or call the FCC's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

    III. Ordering Clauses

    37. It is ordered that, pursuant to the authority found in sections 1, 4(i), and 4(j) of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), and 154(j), this Report and Order is hereby adopted.

    38. It is further ordered that, pursuant to the authority found in sections 1, 4(i), and 4(j) of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), and 154(j), the Commission's rules are amended as set forth in Rules Appendix A of the NPRM, effective as of the date of publication of a summary in the Federal Register.9

    9 These rules serve to “reliev[e] a restriction.” 5 U.S.C. 553(d)(1).

    39. It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Report and Order, including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

    40. It is further ordered that the Commission shall send a copy of this Report and Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

    41. It is further ordered that, should no petitions for reconsideration or petitions for judicial review be timely filed, MB Docket No. 17-231 shall be TERMINATED and its docket closed.

    List of Subjects in 47 CFR Part 73

    Equal employment opportunity, Radio, Reporting and recordkeeping requirements, Television.

    Federal Communications Commission. Marlene H. Dortch, Secretary, Office of the Secretary. Proposed Rules

    For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 73 as follows:

    PART 73—RADIO BROADCAST SERVICES 1. The authority citation for part 73 continues to read as follows: Authority:

    47 U.S.C. 154, 303, 309, 310, 334, 336, and 339.

    2. Amend § 73.2080 by revising paragraph (f)(2) to read as follows:
    § 73.2080 Equal Employment Opportunities (EEO).

    (f) * * *

    (2) The Commission will conduct a mid-term review of the employment practices of each broadcast television station that is part of an employment unit of five or more full-time employees and each radio station that is part of an employment unit of 11 or more full-time employees four years following the station's most recent license expiration date as specified in § 73.1020. If a broadcast licensee acquires a station pursuant to FCC Form 314 or FCC Form 315 during the period that is to form the basis for the mid-term review, that review will cover the licensee's EEO recruitment activity during the period starting with the date it acquired the station.

    [FR Doc. 2018-05726 Filed 3-20-18; 8:45 am] BILLING CODE 6712-01-P
    NATIONAL CREDIT UNION ADMINISTRATION 48 CFR Part 9 RIN: 3133-AE85 NCUA Suspension and Debarment Procedures AGENCY:

    National Credit Union Administration (NCUA).

    ACTION:

    Proposed Suspension and Debarment Procedures with request for comments.

    SUMMARY:

    The NCUA Board (Board) proposes to adopt suspension and debarment procedures to establish an administrative process protecting the Federal Government's interest in only doing business with presently responsible contractors. This proposal sets forth the NCUA's proposed policies for suspension and debarment and establishes administrative proceedings for contractors subject to the policies.

    DATES:

    Comments must be received on or before May 21, 2018.

    ADDRESSES:

    You may submit comments by any of the following methods (Please send comments by one method only):

    Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.

    NCUA website: http://www.ncua.gov/Legal/Regs/Pages/PropRegs.aspx. Follow the instructions for submitting comments.

    Email: Address to [email protected]. Include “[Your name]—Comments on Proposed Suspension and Debarment Procedures” in the email subject line.

    Fax: (703) 518-6319. Use the subject line described above for email.

    Mail: Address to Gerard Poliquin, Secretary of the Board, National Credit Union Administration, 1775 Duke Street, Alexandria, Virginia 22314-3428.

    Hand Delivery/Courier: Same as mail address.

    Public Inspection: You can view all public comments on the NCUA's website at http://www.ncua.gov/Legal/Regs/Pages/PropRegs.aspx as submitted, except for those that cannot be posted for technical reasons. The NCUA will not edit or remove any identifying or contact information from the public comments submitted. You may inspect paper copies of comments at the NCUA's headquarters at 1775 Duke Street, Alexandria, Virginia 22314, by appointment weekdays between 9 a.m. and 3 p.m. To make an appointment, call (703) 518-6546 or send an email to [email protected].

    FOR FURTHER INFORMATION CONTACT:

    Kevin Tuininga, Associate General Counsel for Administrative Law, Office of General Counsel, National Credit Union Administration, 1775 Duke Street, Alexandria, Virginia 22314-3428 or telephone: (703) 518-6543.

    SUPPLEMENTARY INFORMATION: I. Background II. The Proposed Procedures III. Regulatory Procedures I. Background

    The NCUA is updating and modernizing its procurement processes to ensure it implements best practices in spending funds available to it, including those in the agency's Operating Fund and the National Credit Union Share Insurance Fund. Although the NCUA is not required to follow government-wide acquisition laws and regulations, it believes those laws and regulations include best practices developed over years of seeking public comment on expenditure processes. Suspension and debarment remedies have proven to be an important component of government procurement processes. Thus, the NCUA believes it should adopt suspension and debarment procedures to protect both itself and other Executive Branch agencies.

    II. The Proposed Rule

    This proposed rule sets forth standards and procedures governing suspension and debarment of NCUA contractors, including subcontractors, management officials, key employees and affiliated business entities of such contractors, to protect the Federal Government's interest in only doing business with presently responsible contractors. The NCUA is not required to follow the Federal Acquisition Regulation (FAR) but uses its principles for best practice guidance. The FAR section on suspension and debarment is located at 48 CFR part 9, subpart 9.4.

    This proposed rule is similar to the suspension and debarment procedures other federal entities use, which have been developed after extensive public comment and withstood judicial scrutiny. However, the rule may depart in certain respects from the procedures used by other federal entities. With respect to due process provisions, the NCUA seeks to provide at least the same protections to contractors that other agencies have provided in developing their suspension and debarment procedures.

    II. Summary of the Proposed Rule

    The proposed rule is comprised of eight sections. Section A describes the purpose of the proposed procedures, which is to ensure the NCUA solicits offers from and awards contracts to only presently responsible contractors. While not precisely defined, the proposed procedures use the term “presently responsible” in a manner consistent with its traditional use in the suspension and debarment context: A contractor must be able to “contract with the government in a responsible manner on a going-forward basis.” 1 In other words, based on available evidence, “the contractor [must] be trusted to perform in accordance with contract requirements, governing law, and overall, to conduct itself ethically.” 2 In addition to requiring this standard of its prime contractors, the NCUA will apply the present responsibility threshold in determining whether to consent to subcontracts.

    1 Robert F. Meunier, Trevor B. A. Nelson, IS IT TIME FOR A SINGLE FEDERAL SUSPENSION AND DEBARMENT RULE? 46 Pub. Cont. L.J. 553, 587 n.176 (2017).

    2Id.

    Section A also specifies in footnote 2 that the procedures apply to both the NCUA in its agency capacity and the NCUA Board in its capacity as conservator or liquidating agent for an insured credit union. While the NCUA is not required to follow the FAR in any capacity, the Board believes the purpose of suspension and debarment remedies are important for all of its work, regardless of context. In liquidations, for example, contracting expenses are paid as administrative expenses, the most senior position in the claims priority of 12 CFR 709.5(b). The National Credit Union Share Insurance Fund, uninsured shareholders, and pre-liquidation contractors, on the other hand, are lower priority creditors that only receive funds to the extent they remain after administrative expenses are paid. Thus, the Board believes it is equally important to protect the integrity of the contracting process in the conservatorship and liquidation contexts. The procedures would not apply to any legal services contracts, whether provided on behalf of the NCUA as agency or the NCUA Board as conservator or liquidating agent, as those contracts are managed through separate procedures administered by the NCUA's Office of General Counsel.

    Applying suspension and debarment remedies to a conservator or liquidating agent is a departure from the general rule in the NCUA's Acquisition Policy Manual. Although the Board may follow many principles of its Acquisition Policy Manual as conservator or liquidating agent, those activities are not expressly subject to the Manual to avoid any hindrance of special rights the Federal Credit Union Act (FCU Act) grants to the liquidating agent or conservator, including contract repudiation rights. The Board does not have similar concerns with respect to suspension and debarment processes because they are, in effect, remedial, and will not materially restrict the Board's statutory contracting rights as conservator or liquidating agent. However, as with any other aspect of these proposed procedures, the Board welcomes public comment on this bifurcated approach.

    Section B sets forth the NCUA's authority for proposing and adopting agency-specific suspension and debarment procedures. This section identifies the FCU Act generally and, specifically, 12 U.S.C. 1766(i)(2) as relevant authority. Other provisions of the FCU Act, including 12 U.S.C. 1789, also directly support the Board's action.

    Section C covers the definitions of terms used in the proposed procedures. Among other key terms, Section C defines “affiliates” and “imputation” for purposes of the procedures and describes the “present responsibility” concept. The definitions are based on commonly accepted definitions for similar terms in the FAR and in federal contracting generally.

    In addition, Section C sets forth the circumstances that warrant a fact-based debarment, a conviction-based debarment, and a suspension. Fact-based debarments would require the NCUA to establish relevant circumstances by a preponderance of the evidence. Suspensions, in contrast, are permitted under an “adequate evidence” standard, meaning information sufficient to support a reasonable belief that a particular act or omission has occurred. The adequate evidence standard amounts to a minimal standard of proof, akin to probable cause and requiring some degree of corroboration but not to a preponderance level. Although they can be imposed under a lesser evidentiary standard, suspensions are generally of shorter duration than debarments.

    Section D lists the responsibilities of various NCUA employees in implementing the proposed procedures. Pursuant to this section, the Deputy General Counsel serves as the suspending and debarring official (SDO) who has responsibility to make final decisions under the procedures. Locating this responsibility outside of the NCUA's Office of the Chief Financial Officer (OCFO) protects objectivity and contractor due process by separating suspension and debarment decisions from the division that generally awards and administers contracts.

    The procedures require all NCUA offices to refer circumstances that may warrant suspension and debarment to the NCUA contracting officer and the Office of General Counsel attorney assigned to coordinating suspension and debarment proceedings (SDO Admin). However, the NCUA expects most referrals to originate with NCUA contracting officers, who are responsible for overseeing the bulk of the NCUA's contracting activities. The procedures require that circumstances involving potential criminal activity also be referred to the NCUA's Office of Inspector General.

    The proposed procedures identify a non-exhaustive list of circumstances that should be referred to the NCUA contracting officer, the SDO Admin, and the OIG (as applicable). These circumstances include the following:

    1. Contractor fraud, dishonesty or unethical behavior;

    2. repeated or severe contract performance issues;

    3. unmitigated or undisclosed conflicts of interest; and

    4. improper invoicing or questionable costs.

    These general referral criteria are in addition to circumstances where an NCUA office might discover evidence of more specific circumstances that may support fact-based or conviction-based debarments or suspensions, as identified in Section C.

    Even after a referral results in suspension or debarment, the proposed procedures give the Executive Director authority to approve the award of a contract or subcontract to an ineligible contractor for “compelling reasons”, documented in writing. This provision does not expressly limit the Executive Director's discretion, as such circumstances are difficult to anticipate. However, the NCUA expects to encounter such compelling reasons on rare occasions, if ever.

    Section E explains the impact of a suspension or debarment. A suspended or debarred contractor or subcontractor will be ineligible to receive contract solicitations, awards, or subcontracting consents from Executive Branch agencies. The FAR permits other agencies to proceed with an award only if the agency's head determines there is a compelling reason for an exception.3 The proposed procedures would subject the NCUA to this same limitation with respect to contractors suspended or debarred by other Executive Branch agencies. Thus, the NCUA in any capacity, subject only to the Executive Director's authority discussed above, will not solicit, award, or consent to contracts or subcontracts involving suspended or debarred contractors, regardless of the agency that issued the suspension or debarment.

    3 48 CFR 9.405(a).

    In general, the FAR permits agencies to continue contracts or subcontracts entered into before the NCUA initiates suspension or debarment proceedings. A proceeding is deemed initiated when entered into the System for Award Management,4 which provides notice to other agencies. As with prime contractors, when another agency has debarred, suspended, or proposed for debarment a subcontractor for any subcontract that requires the NCUA's consent, the NCUA's contracting officers may not consent unless the NCUA's Executive Director provides compelling reasons in writing.

    4 The System for Award Management is the General Services Administration's government-wide support system for contract awards, which includes a list of parties excluded from Executive Branch contracts.

    Section F recites the process for NCUA offices to refer matters to the SDO Admin and the SDO for a determination. It specifies the contents of action referral memorandums and periods for referrals to the SDO Admin. The general referral period within which an NCUA office should refer a matter to the SDO Admin is 30 days but, for referrals based on convictions (defined to include criminal convictions or civil judgments), the procedures impose a shorter, 10-day, referral period. Section F also lists pertinent documents that should be included with an action referral memorandum, which together comprise the referral materials.

    Section G describes the decision-making process the NCUA proposes to use once a matter has been presented to the SDO. This section requires the SDO Admin to coordinate any proposed action with the Interagency Suspension and Debarment Committee, composed of suspension and debarment representatives from federal agencies. The Board believes this coordination process will ensure the NCUA works with other agencies and is fully informed of circumstances that may affect ongoing or pending procurements.

    Section G includes a list of potential actions the SDO can take after considering a presented matter and action referral memorandum, including rejecting the memorandum, issuing a show cause letter or notice of suspension, or issuing a notice of proposed debarment. Each option lists requirements and the contents to be included in related notices to contractors. For notices of suspension or proposed debarment, the contractor will receive the action referral memorandum and may have access to the entire administrative record, on request, unless the law or parallel proceedings warrant its partial or complete redaction or withholding.

    The procedures provide a maximum of 30 days from receipt of a notice for a contractor to respond. In the case of a notice of suspension or notice of proposed debarment, the contractor may respond with a presentation of matters in opposition (PMIO). The PMIO can be presented in person or in writing and may occur through a representative. The contractor may also request meetings with the SDO. The SDO may transcribe meetings and conference calls at the SDO's discretion. The proposed procedures require the SDO to consider all matters in the PMIO in the SDO's final decision. If a contractor fails to respond to notices the SDO issues, the existence of the basis for suspension or debarment is deemed admitted.

    The proposed procedures provide for a fact-finding proceeding only for fact-based actions (those not based on a conviction or civil judgment) where the SDO determines one or more genuine issues of material fact exist. In such a case, the SDO will appoint an individual to oversee the proceeding, generally scheduled within 60 days of receiving the PMIO, at which the contractor can appear with counsel, submit evidence, and examine agency witnesses. The procedures set recommended timeframes and requirements for fact-finding proceedings, including the form of a final decision and composition of the administrative record.

    Fact-finding proceedings are transcribed unless otherwise mutually agreed upon, and the contractor can obtain a transcript of the proceedings at its request and at its cost. The standard of proof for determining the disputed facts is preponderance of the evidence. These processes and requirements are consistent with the long-established due process FAR-based agencies have established in suspension and debarment procedures.

    From the point of referral through a final determination, the NCUA will maintain and document all information considered by the SDO to include the action referral memorandum, the PMIO (including mitigating factors) and transcripts of any fact-finding proceedings. This is the administrative record.

    The SDO's final determination is issued in writing, based on the administrative record. Decisions will generally be issued within 30 or 45 working days after closing the administrative record, depending on whether the proceeding is conviction based or fact based. The administrative record will be deemed closed when the SDO Admin submits all evidence to the SDO for a final decision. The SDO Admin will advise the contractor in writing promptly after the administrative record has been closed, including the date it was closed.

    The final decision may reflect a determination (i) not to debar the contractor; (ii) to terminate a suspension; or (iii) to debar the contractor. Further, the SDO and the contractor are free to negotiate an administrative agreement resolving all or some issues at any point in the proceedings. Other than as limited by law, the proposed procedures set no limitations on the parties' discretion with respect to the terms and conditions of administrative agreements.

    Section G also specifies the contractor's right to seek judicial review of an adverse decision from the SDO. On this issue, the Board invites comment on whether to permit additional administrative appeal rights within the NCUA. Although Interpretive Ruling and Policy Statement 11-1 provides that “the NCUA Board serves as the final administrative decision maker for major disputes that are not otherwise covered by this IRPS or Parts 709, 745, 792 or 747” of NCUA regulations, the Board does not intend at this time for this general appeal right to apply to suspension and debarment procedures.5 Nevertheless, the Board is open to providing some further level of appeal within the agency, based on the administrative record. While additional appeal rights can require additional resources and significantly extend final determinations, they could also strengthen the administrative record against challenges in court. If the Board were to grant additional administrative appeals, it would adopt processes within the final procedures that are similar to those permitted for creditor claim appeals and insurance determination appeals in 12 CFR 709.8(c)(1) and 745.202, respectively.

    5https://www.ncua.gov/Legal/Documents/IRPS/IRPS2011-1.pdf.

    Section H specifies permitted activities after imposition of a suspension or debarment. Until such condition is removed, a contractor may continue to perform current contracts (unless an agency terminates or voids them), subject to the following conditions (except as otherwise provided in the procedures):

    1. New work may not be added.

    2. Options may not be exercised.

    3. Duration may not be otherwise extended.

    4. New task orders may not be issued (except up to a guaranteed minimum).

    5. New orders may not be placed.

    The procedures would apply to actions initiated by the NCUA on or after the effective date of a final rule adopting the procedures, regardless of the date of the activities or circumstances that give rise to subsequent NCUA action under the procedures. Once the Board adopts a final version, the procedures will be posted on the NCUA's website, in addition to being published in the Federal Register. The Board invites comment on any and all of the matters discussed above and on any additional matters addressed in the draft procedures included at the end of this notice.

    III. Regulatory Procedures A. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) requires the NCUA to prepare an analysis to describe any significant economic impact a proposed rule may have on a substantial number of small entities (currently defined by the NCUA as federally insured credit unions with under $100 million in assets). In this case, the NCUA does not expect that the proposed Suspension and Debarment Procedures would ever apply to a federally insured credit union. In addition, the NCUA does not expect that the Procedures would apply to a substantial number of small businesses, as defined in the RFA and as further established by the Office of Advocacy of the Small Business Administration.

    The proposed rule closely follows the suspension and debarment procedures of the Federal Acquisition Regulation, which already applies to government contractors, without imposing any additional economic burden. To the extent of any variation from the Federal Acquisition Regulations, the proposed Procedures contain no recordkeeping or substantive regulatory requirements, varying only in adjudication processes. The proposed rule therefore will not have a significant economic impact on a substantial number of federally insured credit unions under $100 million in assets or on other small entities as defined by the Small Business Administration. Accordingly, the NCUA has determined and certifies that the proposed rule will not have a significant economic impact on a substantial number of small entities. No regulatory flexibility analysis is required.

    Notwithstanding the NCUA's determination that this rule will not have a significant economic impact on a substantial number of small entities, the NCUA Board invites comments regarding less burdensome alternatives to this rule that will meet the NCUA's objectives as described in the preamble.

    B. Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (PRA) applies to rulemakings in which an agency creates a new paperwork burden on regulated entities or modifies an existing burden.6 For purposes of the PRA, a paperwork burden may take the form of either a reporting or a recordkeeping requirement, both referred to as information collections. The proposed rule will not create any new paperwork burden that meets the definition of an information collection. Thus, the NCUA has determined that the terms of this proposed rule do not increase the paperwork requirements under the PRA and regulations of the Office of Management and Budget.

    6 44 U.S.C. 3507(d).

    C. Executive Order 13132

    Executive Order 13132 encourages independent regulatory agencies to consider the impact of their actions on state and local interests. The NCUA, an independent regulatory agency as defined in 44 U.S.C. 3502(5), voluntarily complies with the executive order to adhere to fundamental federalism principles. This proposed rule would not have a substantial direct effect on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. The NCUA has determined that this proposed rule does not constitute a policy that has federalism implications for purposes of the executive order.

    D. Assessment of Federal Regulations and Policies on Families

    The NCUA has determined that this proposed rule will not affect family well-being within the meaning of Section 654 of the Treasury and General Government Appropriations Act, 1999, Public Law 105-277, 112 Stat. 2681 (1998).

    By the National Credit Union Administration Board on March 15, 2018.

    Gerard Poliquin, Secretary of the Board.

    For the reasons discussed above, the Board proposes to adopt the following NCUA Suspension and Debarment Procedures:

    NCUA Suspension and Debarment Procedures A. Purpose

    The purpose of these suspension and debarment procedures is to establish an administrative process to protect the Government's interest in only doing business with presently responsible contractors. The NCUA 1 shall only solicit offers from, award contracts to, and consent to subcontracts with presently responsible contractors. These procedures implement the NCUA's policies for suspension and debarment and establish administrative proceedings for contractors subject to the policies.

    1 Throughout these procedures, unless otherwise noted, the “NCUA” refers the NCUA in its agency capacity and also to the NCUA Board as conservator or liquidating agent for an insured credit union. Legal services contracts the NCUA enters into in any capacity, through the Office of General Counsel, are not subject to these suspension and debarment procedures.

    B. Authority

    The NCUA's suspension and debarment authority derives from the Federal Credit Union Act 12 U.S.C. 1751 et seq., and 12 U.S.C. 1766(i)(2), specifically. The NCUA is not required to follow the Federal Acquisition Regulation but uses the principles therein for best practice guidance. The Federal Acquisition Regulation (FAR) section on suspension and debarment is located at 48 CFR part 9, subpart 9.4. The NCUA also has its own Acquisition Policy Manual.

    C. Definitions

    1. Action Referral Memorandum (ARM). The investigative report developed and compiled by an NCUA office recommending that the Suspending and Debarring Official (SDO) take a suspension or debarment action against a contractor.

    2. Administrative Agreement. Administrative Agreements are usually entered into in lieu of suspension or debarment actions. Typically the agreements include acceptance of responsibility, voluntary exclusion by the contractor, some provision of restitution, any contractor responsibilities with respect to codes of conduct, training, and the contractor's promise to report progress to the NCUA, and generally include consequences for breach of the agreement. The terms of the Administrative Agreement and contents will be determined on a case-by-case basis.

    3. Administrative Record. The entire record of information and proceedings. This includes all information considered by the SDO that is the basis of the final decision.

    4. Affiliates. Business concerns, organizations, or individuals are affiliates of each other if, directly or indirectly, (1) either one controls or has the power to control the other, or (2) a third party controls or has the power to control both. Indicia of control include, but are not limited to, interlocking management or ownership, identity of interests among family members, shared facilities and equipment, common use of employees, or a business entity organized following the debarment, suspension, or proposed debarment of a contractor that has the same or similar management, ownership, or principal employees as the contractor that was debarred, suspended, or proposed for debarment.

    5. Civil Judgement. A judgement or finding of a civil offense by a court of competent jurisdiction.

    6. Contractor. Contractor means any individual or other legal entity that: (1) Directly or indirectly (for example, through an affiliate), submits offers for, or is awarded, or reasonably may be expected to submit offers for, or be awarded, a Government contract or a subcontract under a Government contract; or (2) conducts business, or reasonably may be expected to conduct business, with the Government as an agent or representative or another contractor.

    7. Debarment. A final decision made by the SDO to exclude a contractor from Government contracting and Government-approved subcontracting or covered transactions for a reasonable, specified period (usually not exceeding three years). A contractor is first proposed for debarment and afforded an opportunity to present its defenses and mitigating factors.

    a. Fact-Based Debarment. The cause for the debarment is based on factual circumstances (for example, history of poor performance or willful misconduct). The NCUA must be able to prove the action by a “preponderance of the evidence.” Preponderance of the evidence means that the fact(s) at issue are more likely than not (over 50%) to be true. A contractor, based upon a preponderance of the evidence, can be debarred for any of the following:

    i. Violation of the terms of a Government contract or subcontract so serious as to justify debarment, such as:

    1. Willful failure to perform in accordance with the terms of one or more contracts; or

    2. a history of failure to perform, or of unsatisfactory performance of, one or more contracts.

    ii. Violations of a Drug-Free Workplace, as indicated by:

    1. Failure to comply with the requirements of a Drug-Free Workplace; or

    2. such a number of contractor employees convicted of violations of criminal drug statutes occurring in the workplace as to indicate that the contractor has failed to make a good faith effort to provide a drug-free workplace.2

    2 41 U.S.C. Chapter 81.

    iii. Intentionally affixing a label bearing a “Made in America” inscription (or any inscription having the same meaning) to a product sold in or shipped to the United States, when the product was not made in the United States.3

    3 Section 202 of the Defense Production Act; Public Law 102-558.

    iv. Commission of an unfair trade practice.4

    4 Section 201 of the Defense Production Act; Public Law 102-558.

    v. Delinquent Federal taxes in an amount that exceeds $3,500. Federal taxes are considered delinquent for purposes of this provision if the tax liability is finally determined (i.e. assessed) and the taxpayer is delinquent in making payment.

    vi. Knowing failure by a principal, until 3 years after final payment on any Government contract awarded to the contractor, to timely disclose to the Government, in connection with the award, performance, or closeout of the contract or a subcontract thereunder, credible evidence of:

    1. Violation of Federal criminal law involving fraud, conflict of interest, bribery, or gratuity violations; 5

    5 Title 18 U.S.C.

    2. violation of the civil False Claims Act; 6 or

    6 31 U.S.C. 3729-3733.

    3. significant overpayment(s) on the contract, other than overpayments resulting from contract financing payments.

    vii. A contractor, based on a determination by the Secretary of Homeland Security or the Attorney General of the United States, not in compliance with Immigration and Nationality Act employment provisions.7 Such determination is not reviewable in the debarment proceedings.

    7 Executive Order 12989, as amended by Executive Order 13286.

    viii. A contractor has miscertified its status as a minority- and/or women-owned business.

    ix. Any other cause of so serious or compelling a nature that it affects the present responsibility of the contractor or subcontractor.

    b. Conviction-Based Debarment. A debarment action based on a conviction or civil judgement. A contractor can be debarred for a conviction or civil judgement based on one or more of the following circumstances:

    i. Commission of fraud or a criminal offense in connection with (i) obtaining, (ii) attempting to obtain, or (iii) performing a public contract or subcontract.

    ii. Violation of Federal or State antitrust statutes relating to the submission of offers.

    iii. Commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, tax evasion, violating Federal criminal tax laws, or receiving stolen property.

    iv. Intentionally affixing a label bearing a “Made in America” inscription (or any inscription having the same meaning) to a product sold in or shipped to the United States, when the product was not made in the United States.8

    8 Section 202 of the Defense Production Act; Public Law 102-558.

    v. Commission of any other offense indicating a lack of business integrity or business honesty that seriously and directly affects the present responsibility of a Government contractor or subcontractor.

    8. Imputation. Attributing the misconduct of an individual or organization to another individual or organization by virtue of the latter's knowledge or implied knowledge of the misconduct. An agency may impute the basis of a suspension or debarment through the following relationships: Individual to organization; organization to individual; individual to individual; and joint ventures.

    9. Indictment. An indictment for a criminal offense. An information or other filing by competent authority charging a criminal offense is given the same effect as an indictment.

    10. Presentation of Matters in Opposition (PMIO). The contractor may submit matters in opposition to the suspension or proposed debarment. The contractor may submit matters in person, in writing, or through a representative. The contractor may also use a combination of those methods.

    11. Present Responsibility. A contractor is presently responsible if the contractor is ethical, honest, competent, and has not acted in any way that reveals a lack of business integrity or business honesty, or an inability to satisfactorily perform Government contracts.

    12. System for Award Management (SAM). SAM is the exclusion database that applies across the Executive Branch. SAM is an official U.S. Government system.

    13. Suspension. A suspension is an immediate, but temporary (usually 12 months), measure imposed by the SDO, rendering a contractor ineligible to receive new Government contracts or subcontracts, pending the outcome of a legal proceeding or investigation that could give rise to a debarment.9

    9 If legal proceedings are not initiated within 12 months after the date of the suspension notice, the suspension shall be terminated unless an Assistant Attorney General requests an extension, in which case it may be extended for six months. Suspensions cannot extend beyond 18 months unless legal proceedings have been initiated within that period. The NCUA shall notify the Department of Justice of the proposed termination of the suspension, at least 30 days before the 12-month period expires to give the Department of Justice an opportunity to request an extension.

    a. Adequate Evidence for Suspension. The NCUA must have adequate evidence and an immediate need to suspend a contractor. Adequate evidence is information sufficient to support a reasonable belief that a particular act or omission has occurred. A contractor can be suspended upon adequate evidence of one or more the following:

    i. Commission of fraud or a criminal offense in connection with (i) obtaining, (ii) attempting to obtain, or (iii) performing a public contract or subcontract.

    ii. Violation of Federal or State antitrust statutes relating to the submission of offers.

    iii. Commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, tax evasion, violating Federal criminal tax laws, or receiving stolen property.

    iv. Violations of a Drug-Free Workplace, as indicated by:

    1. Failure to comply with the requirements of a Drug-Free Workplace; or

    2. Such a number of contractor employees convicted of violations of criminal drug statutes occurring in the workplace as to indicate that the contractor has failed to make a good faith effort to provide a drug-free workplace.10

    10 41 U.S.C. Chapter 81.

    v. Intentionally affixing a label bearing a “Made in America” inscription (or any inscription having the same meaning) to a product sold in or shipped to the United States, when the product was not made in the United States.11

    11 Section 202 of the Defense Production Act; Public Law 102-558.

    vi. Commission of an unfair trade practice.12

    12 Section 201 of the Defense Production Act; Public Law 102-558.

    vii. Delinquent Federal taxes in an amount that exceeds $3,500. Federal taxes are considered delinquent for purposes of this provision if the tax liability is finally determined (i.e. assessed) and the taxpayer is delinquent in making payment.

    viii. Knowing failure by a principal, until three years after final payment on any Government contract awarded to the contractor, to timely disclose to the Government, in connection with the award, performance, or closeout of the contract or a subcontract thereunder, credible evidence of:

    1. Violation of Federal criminal law involving fraud, conflict of interest, bribery, or gratuity violations; 13

    13 Title 18 U.S.C.

    2. violation of the civil False Claims Act; 14 or

    14 31 U.S.C. 3729-3733.

    3. significant overpayment(s) on the contract, other than overpayments resulting from contract financing payments.

    ix. Commission of any other offense indicating a lack of business integrity or business honesty that seriously and directly affects the present responsibility of a Government contractor or subcontractor.

    An indictment for any of the foregoing will be considered adequate evidence for suspension.

    D. Responsibilities

    1. NCUA Executive Director. The Executive Director has the authority to approve the award of a contract or subcontract to an ineligible contractor for compelling reasons. Decisions to award a contract or subcontract to ineligible contractors must be documented in writing in advance of an award.

    2. The Suspending and Debarring Official (SDO). The Deputy General Counsel serves as the SDO. The SDO decides whether to impose a suspension and debarment action. The decision whether to suspend or debar is a business decision and, unless mandated by statute or executive order, is discretionary. The SDO decides whether to send out a Notice of Suspension or a Notice of Proposed Debarment, issue a Show Cause Letter, or take no action. Upon commencing a formal action, the SDO reviews the ARM, considers any PMIO submitted or presented by the contractor, and determines whether a fact-finding proceeding is necessary. The SDO may negotiate an Administrative Agreement with the contractor. The SDO's final decision is based on the ARM and the entire Administrative Record.

    3. Office of the General Counsel (OGC). OGC provides legal advice regarding the suspension and debarment program to the NCUA. OGC reviews the ARM, any other notices and correspondence, the Administrative Record, the SDO decision, any Administrative Agreement and other documents for legal sufficiency. OGC also reviews and concurs in any decision from the OCFO, to terminate or void contracts held by suspended, debarred, or proposed-for-debarment contractors.

    4. SDO Admin. The SDO Admin is a procurement attorney in OGC. The SDO Admin receives referral packages and coordinates with the OCFO, the SDO, and other interested NCUA parties. The SDO Admin also coordinates suspension and debarment actions with other agencies and enters ineligible contractors into SAM. The SDO Admin coordinates with the OIG, when necessary and appropriate.

    5. Office of the Chief Financial Officer (OCFO). OCFO contracting officers shall evaluate the responsibility of prospective contractors before award, to include checking SAM. Contracting officers shall also ensure contractor compliance with contract terms and conditions and shall coordinate appropriately with any NCUA office and the SDO Admin on a suspension and debarment action.

    6. Office of Inspector General (OIG). The OIG's work may form the basis for a referral for suspension or debarment. The OIG shall raise any matters of concern resulting from audits, evaluations and investigations. Other NCUA offices may refer areas of concern to the OIG for investigation.

    7. All NCUA Offices. All NCUA offices must report misconduct that may give rise to a suspension and debarment action to the NCUA contracting officer and the SDO Admin upon any indication of a cause for suspending and debarring contractors. Situations that involve possible criminal or fraudulent activities must also be referred to the OIG. Along with more specific bases for debarments and suspensions listed in Section C, the following general matters may be grounds for suspension and debarment and should be referred: Contractor fraud, dishonesty, or unethical behavior; repeated or severe contract performance issues; unmitigated or undisclosed conflicts of interest; and improper invoicing and/or questionable costs.

    E. Effect of Listing 15

    15 The nonprocurement common rule is a model rule published in the Federal Register and used by agencies to suspend, debar, or exclude contractors from participation in nonprocurement activities. Nonprocurement activities include grants, cooperative agreements, scholarships, fellowships, loans, loan guarantees, subsidiaries, insurance, payments for specified use, and donation agreements. FAR and NCR-based suspension and debarment actions are recognized equally by agencies regardless of which regulations they follow.

    1. Contractors debarred, suspended, or proposed for debarment are excluded from receiving contracts, and the FAR provides that agencies shall not solicit offers from, award contracts to, or consent to subcontracts with these contractors, unless the agency head determines there is a compelling reason for such action. Subject to any exceptions in this policy, the NCUA shall not award new contracts, place orders exceeding the guaranteed minimum on indefinite delivery contracts, place orders under schedule contracts, add new work, exercise options, or extend the duration of a contract with any contractor debarred, suspended, or proposed for debarment. Except as otherwise provided in applicable law, a suspension and debarment action taken by the NCUA will exclude the contractor from all awards of other contracts within the Executive Branch.

    a. Current contracts. Any NCUA decision to terminate or void a current contract shall be subject to review and concurrence by OGC.

    b. Restrictions on subcontracting. When a contractor debarred, suspended or proposed for debarment is proposed as a subcontractor for any subcontract subject to NCUA consent, contracting officers shall not consent unless the Executive Director states in writing the compelling reasons to do so.16

    16 Also, contractors shall not enter into any subcontract in excess of $35,000, other than a subcontract for a commercially available off the-shelf item, with a party that is debarred, suspended, or proposed for debarment.

    F. Procedures for Referring Matters to the SDO

    1. General. The referring office shall provide any and all facts and information giving rise to the possible suspension and debarment, including any available documentation to the SDO Admin. Conviction-based debarment matters should be referred within 10 working days of discovery and, to the extent practicable, all other matters should be referred within 30 calendar days. The referring office shall submit an ARM to the SDO Admin. The SDO Admin will coordinate the ARM with the SDO, the NCUA contracting officer and any other necessary party.

    2. Contents of the ARM. The ARM must include the following information, if applicable:

    a. Information on the contractor:

    i. Identity of respondents (contractors/affiliates/business entities).

    ii. Position(s) held by individuals within the business entity.

    iii. Fictitious names or aliases.

    iv. Current mailing addresses of named parties and/or last known business address.

    v. Current telephone and fax numbers for named parties.

    vi. Dun and Bradstreet identifier and/or the Commercial and Government Entity Code.

    vii. SSN and/or birthdates of individuals.

    viii. Listing of subsidiaries, affiliates, and parent companies.

    b. Pertinent Documents.

    i. NCUA-affected contract numbers and copies of the contract(s).

    ii. Listing of any other contracts the entity has with other Government agencies.

    iii. Invoices and other cost and pricing information.

    iv. Any indictment, legal documents, sentencing transcripts or memoranda, any judgement and conviction, settlement agreement or final order.

    v. Explanation of current business corporate structure, if known.

    vi. Any business-related documents (articles of incorporation).

    vii. Emails and communication between the NCUA and the contractor.

    c. Business activity of the contractor and nexus statement. The ARM must contain a narrative explaining the relationship between the conduct of the contractor and the NCUA's mission and/or activities and include a statement of the grounds for suspension and debarment. The narrative should focus on the contractor's integrity and present responsibility and why the NCUA needs protection. The narrative should show the SDO what happened in clear and concise terms. Mitigating factors that can be addressed are whether the individual(s) cooperated with any investigation, whether behavior was repetitive, and whether any individuals self-disclosed. Time critical events should be addressed (for example, whether the contractor is being considered for new award or an option is about to be exercised).

    d. Recommended course of action. The ARM shall recommend a suspension, proposal for debarment, or show cause letter. The ARM can also propose a period for the suspension or debarment.

    G. Decision-Making Process

    a. Upon receipt of a referral, the SDO Admin will ensure that the file has all of the required elements. The SDO Admin will coordinate with the referring office, the OIG, the NCUA contracting officer and any other necessary party if more information is needed. The SDO Admin will coordinate any proposed action with the Interagency Suspension and Debarment Committee (ISDC). The ISDC is an organization composed of suspension and debarment representatives from agencies and coordinates lead agency status among agencies. The lead agency is usually the agency with the highest amount of contracting dollars with the vendor.

    b. The SDO Admin will then forward the ARM to the SDO. Upon the receipt of a referral, the SDO will decide the appropriate action to take. After consultation with OGC, the SDO may take any of the following actions:

    i. Reject the ARM and take no action. The SDO may determine there is not enough evidence to initiate an action. The SDO will document the decision not to take action and tell the SDO Admin. The SDO Admin will coordinate this decision within the NCUA. Continuous monitoring of the contractor may be recommended.

    ii. Issue a Show Cause Letter. The SDO may issue a Show Cause Letter to the contractor rather than initiating a formal suspension or debarment action. The SDO Admin will send the Show Cause Letter to the contractor through USPS certified mail, return receipt requested, and forward a copy to the NCUA contracting officer and the OIG if necessary. The letter must include all of the following:

    1. A description of the alleged misconduct.

    2. Notice that the misconduct may form the basis for a suspension and debarment action.

    3. A request for the contractor to admit, deny, or explain the alleged misconduct.

    4. A time for a contractor to respond (no more than 30 calendar days from the date of receipt).

    5. Notice of consequences for failure to respond to the letter or adequately address the allegations of misconduct.

    iii. Issue a Notice of Suspension or Notice of Proposed Debarment. The SDO may begin formal proceedings by issuing a Notice of Suspension or a Notice of Proposed Debarment. Issuance of either, immediately renders the contractor (and any named affiliates) ineligible to receive Executive Branch contracts and the SDO Admin will enter the contractor's name into SAM. Notice shall be sent by USPS certified mail, return receipt requested to the last known address of the contractor.

    1. Notice of Proposed Debarment. The notice shall inform the contractor (and any named affiliates):

    a. That it is being considered for debarment;

    b. of the reasons/causes for the proposed debarment;

    c. of the effect of the proposed debarment;

    d. of the potential effect of a debarment (including scope of ineligibility);

    e. that the contractor has 30 calendar days from receipt of the notice to respond with its PMIO in person, in writing, or through a representative with information and arguments opposing the proposed debarment; and

    f. that the NCUA may conduct a fact-finding proceeding.

    A copy of the ARM will be sent with the notice. A copy of the entire Administrative Record will be made available to the contractor upon request, unless applicable law or parallel proceedings warrant the SDO's partial or complete redaction or withholding of the Administrative Record.

    2. Notice of Suspension. The notice shall inform the contractor (and its affiliates) of the following circumstances:

    a. That it has been suspended;

    b. whether the suspension is based on indictment or other adequate evidence that the contractor has committed misconduct warranting immediate action;

    c. that the suspension is for a temporary period, pending the completion of an investigation (if the suspension is based on indictment there is no time limit);

    d. the cause(s) for imposing the suspension;

    e. the effect of the suspension (including the scope of ineligibility);

    f. that the contractor has 30 calendar days from receipt of the notice to respond with its PMIO in person, in writing, or through a representative with information and argument opposing the suspension; and

    g. that the NCUA may conduct a fact-finding proceeding if the SDO finds that material facts are in dispute.

    A copy of the ARM will be sent with the notice. A copy of the entire Administrative Record will be made available to the contractor upon request, unless applicable law or parallel proceedings warrant the SDO's partial or complete redaction or withholding of the Administrative Record.

    iv. Contractor's PMIO.

    After receiving notice of a suspension or debarment, the contractor has 30 calendar days from receipt of the notice to respond with its PMIO in person, in writing, or through a representative with information and argument opposing the proposed suspension or debarment. There is no set format for how the PMIO must be submitted. The contractor may request a meeting with the SDO. The SDO will decide whether to transcribe meetings and conference calls on a case-by-case basis. The PMIO should raise all contractor defenses, contested facts, admissions, remedial actions taken and any mitigating factors. Mitigating factors can include explaining whether the contractor (a) has effective standards of internal control systems or adopted of such controls; (b) brought the misconduct to the attention of the NCUA in a timely manner; (c) internally investigated the misconduct; (d) cooperated fully with any NCUA investigation; (e) paid or agreed to pay restitution; (f) took appropriate disciplinary actions against individuals responsible for misconduct; (g) implemented or agreed to implement new remedial measures; (h) instituted or agreed to issue new training or ethics programs; (i) has had adequate time to eliminate the circumstances in the organization that led to the misconduct; and (j) whether management recognizes the seriousness of the misconduct and has implemented programs to prevent recurrence. The SDO must consider all matters in the PMIO in rendering a final decision. A contractor's failure to respond to the notices sent by the SDO shall be deemed an admission of the existence of the cause for suspension or debarment. In that case, the SDO may proceed to a final decision without further proceedings.

    A fact-finding proceeding occurs if actions are not based upon a conviction or civil judgement and when, after receipt of the PMIO, the SDO determines there is a genuine dispute over material fact(s). A fact-finding proceeding is called to consider the fact(s). A fact-finder can be any individual appointed by the SDO to oversee the proceeding. The contractor shall be afforded the opportunity to appear with counsel, submit documentary evidence and confront agency witnesses. The proceeding shall be transcribed unless otherwise mutually agreed upon, and the contractor can obtain a transcript of proceedings at its request and at its cost. The SDO shall attempt to schedule this proceeding within 60 calendar days of the PMIO. If there are numerous grounds for suspension and debarment, the proceeding can be limited to the grounds in dispute having a genuine issue of material fact. The disposition of the fact-finding proceeding will be documented by the SDO. The standard of proof for determining the disputed facts is preponderance of the evidence.

    c. Compiling the Administrative Record. During the process, the NCUA shall maintain and document all information considered by the SDO to include the ARM, the PMIO (including mitigating factors) and transcripts of any fact-finding proceedings. This is the Administrative Record. The following records, in addition to any other similar materials, shall also be included if considered by the SDO: Emails; notes; contract documents; newspaper articles; and summaries of oral briefings and contractor submissions. Any information not relied on by the SDO should not be included. Once the SDO issues a final decision, the contractor may request a copy of the Administrative Record. The SDO may deny the request or withhold or redact part of the Administrative Record if warranted under applicable law or because of parallel proceedings.17 In any circumstance where the SDO redacts or withholds all or part of the Administrative Record, the SDO will provide the reasons for doing so to the contractor in writing.

    17 Parallel proceedings occur when two or more contemporaneous legal actions are initiated by different Government entities against the same contractor, and involving the same material facts. Often these arise when an agency has suspended or proposed a contractor for debarment and the Department of Justice is investigating or prosecuting the contractor for the same misconduct.

    d. Final Decision. The SDO shall issue a written final decision based on the Administrative Record. The SDO shall issue a conviction-based debarment within 30 working days after closing the Administrative Record and within 45 working days of closing the Administrative Record for a fact-based suspension or debarment. The SDO has discretion to extend these deadlines. The Administrative Record will be deemed closed when the SDO Admin submits all evidence to the SDO for a final decision. The SDO Admin will advise the contractor in writing promptly after the Administrative Record has been closed, including the date it was closed. All correspondence shall be sent USPS certified mail, return receipt requested, by the SDO Admin. The SDO can take the following actions in a final decision:

    i. Not Debar the Contractor. The SDO may decide not to debar the contractor. The decision shall include, if applicable, referral to the Notice of Proposed Debarment; a summary of proceedings; the identities of affiliates or imputed conduct; and the reasons for not debarring (for example, an Administrative Agreement; mitigating factors; or remedial measures taken by the contractor). The decision shall notify the contractor that it may request a copy of the Administrative Record and give notice of the effective date of the decision. The SDO Admin will remove the contractor's name from SAM.

    ii. Terminate the Suspension. The SDO may decide to terminate the suspension. The decision shall include, if applicable, referral to the Notice of Suspension; a summary of proceedings; the identities of affiliates or imputed conduct; and the reason for terminating the Suspension (for example, an Administrative Agreement; mitigating factors; or remedial measures taken by the contractor). The decision shall notify the contractor that it may request a copy of the Administrative Record and give notice of the effective date of the decision. The SDO Admin will remove the contractor's name from SAM.

    iii. Debar the Contractor. The SDO may decide to debar the contractor. This decision must be based on the preponderance of the evidence. The decision shall include, if applicable, referral to the Notice of Proposed Debarment; a summary of proceedings; identities of affiliates or imputed conduct; the information considered by the SDO; the reasons for debarring; the scope of ineligibility; the consequences of debarment (application across the Executive Branch); and the effective dates of debarment. The decision shall notify the contractor that it may request a copy of the Administrative Record. The SDO Admin will enter the debarred contractor into SAM.

    iv. Enter into an Administrative Agreement. At any time during the proceedings, the SDO may negotiate an Administrative Agreement with the contractor. An Administrative Agreement applies across the Executive Branch when entered into SAM. The terms of the Administrative Agreement and contents of the Agreement will be determined on a case-by-case basis.

    e. Contractor's Remedy. After a decision is made, a suspended or debarred contractor may seek judicial review. OGC (in coordination with the Department of Justice, as appropriate or required) will work with the referring office, the SDO, and OCFO to litigate these claims.

    H. NCUA Action after a Decision. If a suspension or debarment is imposed, NCUA offices must take steps to ensure the contractor does not receive any new contracts. Upon the effective date of SAM listing, the NCUA must not solicit offers from, award contracts to, or consent to contracts with ineligible contractors. Suspended or debarred contractors may continue performing current contracts (unless those contracts are terminated or voided) but cannot (a) add new work, exercise options, or otherwise extend the duration of the contract or order; (b) issue task orders exceeding the guaranteed minimum under indefinite quantity contracts; or (c) place orders under blanket purchase agreements or basic ordering agreements. The NCUA must review any current contracts held by the contractor to determine whether to terminate or void those contracts. A decision to terminate or void a contract requires OGC concurrence.

    [FR Doc. 2018-05626 Filed 3-20-18; 8:45 am] BILLING CODE 7535-01-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 622 [Docket No. 170413393-8178-01] RIN 0648-BG83 Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Reef Fish Fishery of the Gulf of Mexico; Modifications to Individual Fishing Quota Programs AGENCY:

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

    ACTION:

    Proposed rule; request for comments.

    SUMMARY:

    NMFS proposes to implement management measures described in Amendment 36A to the Fishery Management Plan (FMP) for the Reef Fish Resources of the Gulf of Mexico (Gulf) (Amendment 36A), as prepared by the Gulf of Mexico Fishery Management Council (Council). This proposed rule would require owners or operators of federally permitted commercial Gulf reef fish vessels landing any commercially harvested, federally managed reef fish from the Gulf to provide notification prior to landing and to land at approved locations; require shares from the red snapper individual fishing quota (IFQ) (RS-IFQ) program and the groupers and tilefishes IFQ (GT-IFQ) program that are in non-activated IFQ accounts to be returned to NMFS for redistribution; and allow NMFS to withhold a portion of IFQ allocation at the start of a fishing year equal to an anticipated commercial quota reduction. The purpose of this proposed rule is to improve compliance and increase management flexibility in the RS-IFQ and GT-IFQ programs, and increase the likelihood of achieving optimum yield (OY) for Gulf reef fish stocks managed under these programs.

    DATES:

    Written comments must be received by April 20, 2018.

    ADDRESSES:

    You may submit comments on the proposed rule identified by “NOAA-NMFS-2017-0060” by either of the following methods:

    Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2017-0060, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.

    Mail: Submit all written comments to Peter Hood, NMFS Southeast Regional Office, 263 13th Avenue South, St. Petersburg, FL 33701.

    Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous).

    Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirement contained in this proposed rule may be submitted to Adam Bailey, NMFS Southeast Regional Office (see mailing address above), by email to [email protected], or by fax to 202-395-5806.

    Electronic copies of Amendment 36A, which includes an environmental assessment, a fishery impact statement, a regulatory impact review, and a Regulatory Flexibility Act (RFA) analysis may be obtained from the Southeast Regional Office website at http://sero.nmfs.noaa.gov/sustainable_fisheries/gulf_fisheries/reef_fish/2017/A36A_comm_IFQ/am36Aindex.html.

    FOR FURTHER INFORMATION CONTACT:

    Peter Hood, NMFS Southeast Regional Office, telephone: 727-824-5305, email: [email protected]; IFQ Customer Service, telephone: 1-866-425-7627, Monday through Friday from 8 a.m. to 4:30 p.m., eastern time.

    SUPPLEMENTARY INFORMATION:

    NMFS and the Council manage the Gulf reef fish fishery under the FMP. The FMP was prepared by the Council and is implemented by NMFS through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) (16 U.S.C. 1801 et seq.).

    The Magnuson-Stevens Act requires NMFS and regional fishery management councils to prevent overfishing and achieve, on a continuing basis, the OY from federally managed fish stocks. These mandates are intended to ensure fishery resources are managed for the greatest overall benefit to the nation, particularly with respect to providing food production and recreational opportunities, and protecting marine ecosystems.

    Background

    There are two commercial IFQ programs in the Gulf. Amendment 26 to the FMP established the RS-IFQ program, and Amendment 29 to the FMP established the GT-IFQ program. The RS-IFQ program manages commercial harvest of red snapper and was implemented on January 1, 2007 (71 FR 67447, November 22, 2006). The GT-IFQ program manages commercial harvest of multiple species of groupers and tilefishes, as specified in 50 CFR 622.22(a), and was implemented on January 1, 2010 (74 FR 44732, August 31, 2009). Both IFQ programs share a single Web-based accounting and reporting system.

    The Council began the development of Amendment 36 to the FMP in response to a 5-year review of the RS-IFQ Program completed in 2013. This review evaluated the progress of the RS-IFQ program towards achieving the stated program goals of reducing overcapacity in the fishery and eliminating problems associated with race-to-fish (derby) fishing. The Council also received input on the program from some of their advisory panels as well as from the public. As a result, the suggested modifications to the RS-IFQ program became complex, and the Council split the numerous potential actions into two FMP amendments, Amendments 36A and 36B. The scope of the actions was also expanded to include revisions to the GT-IFQ program because management, as well as the goals and objectives, of this program are similar to the RS-IFQ program. Amendment 36A addresses compliance and program flexibility issues, while Amendment 36B addresses program participation and the distribution of IFQ shares and allocation in the programs.

    Management Measures Contained in This Proposed Rule

    This proposed rule would require that the owner or operator of a commercial reef fish permitted vessel landing any commercially harvested Gulf reef fish, or Florida Keys/East Florida hogfish harvested in the Gulf, to notify NMFS between 3 and 24 hours in advance of landing and to land at approved locations. In addition, the proposed rule would permanently return to NMFS any IFQ shares contained in RS-IFQ or GT-IFQ accounts that have not been activated since the current Web-based system was put in place on January 1, 2010. Finally, the proposed rule would allow NMFS to withhold distribution of IFQ allocation on January 1, the beginning of the fishing year, if a reduction in the commercial quota for any IFQ species or multi-species group is expected to be implemented in that same fishing year.

    Landing Notification

    Currently, to improve compliance with the IFQ programs, vessel owners or operators with commercial Gulf reef fish permits are required to notify NMFS between 3 and 24 hours in advance of landing any commercially harvested species managed under the IFQ programs (IFQ species). The advance landing notification must provide the vessel identification number, the landing date and time, the approved landing location, the name and address of the IFQ dealers where the species will be landed, and the estimated weight of IFQ species to be landed. Although the advance landing notifications help with the enforcement of the IFQ programs, one of the conclusions from a 5-year review of the RS-IFQ Program was additional enforcement efforts may be necessary to deter IFQ landing violations.

    The proposed rule would expand the requirement for an advance landing notification to all commercial trips that land Gulf reef fish species or Florida Keys/East Florida hogfish harvested in the Gulf even if no IFQ species are on board. Note that the single hogfish stock in the Gulf was recently split into a West Florida stock and a Florida Keys/East Florida stock, separated at 25°09′ N lat. in Gulf Federal waters off the west coast of Florida (82 FR 34574 and 82 FR 34584, July 25, 2017). The management measures for the Florida Keys/East Florida stock are developed by the South Atlantic Fishery Management Council, but commercial vessels fishing for this stock in Gulf Federal waters are required to have a Federal commercial permit for Gulf reef fish and are required to follow the reporting requirements associated with this permit.

    The vessel owner or operator would notify NMFS at least 3 hours, but no more than 24 hours, in advance of landing on each trip. The landing notification would report the vessel identification number, the date and time of landing, and the approved landing location. This notification would be submitted via the vessel's existing onboard vessel monitoring system (VMS), but could also be submitted by other NMFS approved methods (e.g., by phone) if they are developed at a later time. Requiring notification in advance of landing any federally managed reef fish from the Gulf is expected to help deter fishermen from illegally landing IFQ species or reporting IFQ species as another species (e.g., red snapper reported as vermilion snapper) because law enforcement and port agents would be informed in advance of all reef fish trips returning to port and can meet vessels to inspect landings. If any IFQ species are to be landed, all regulations under the applicable IFQ program must be followed, including the more extensive advance notice of landing. Only one IFQ advance landing notification covering both IFQ and non-IFQ Gulf reef fish species or Florida Keys/East Florida hogfish harvested in the Gulf would be required on such a trip.

    Additional information about approved landing locations and submitting additional landing locations to NMFS for approval is described later in this proposed rule.

    Non-Activated IFQ Shareholder Accounts

    This proposed rule also addresses RS-IFQ and GT-IFQ shareholder accounts that received shares through the initial apportionment when each IFQ program began, but the accounts have never been accessed by the shareholder since January 1, 2010, the initiation of the current IFQ system. NMFS and the Council have attempted to notify account holders with these non-activated IFQ accounts through phone calls, certified letters, and discussion at public meetings. Although shares in the non-activated accounts represent a small fraction of the total shares, annual allocation assigned to these non-activated IFQ accounts is not landed, and therefore, may prevent achieving OY if not made available for use. The proposed rule would return the shares from non-activated RS-IFQ and GT-IFQ accounts to NMFS for redistribution. The Council intends to redistribute these shares to IFQ program participants through a mechanism determined in Amendment 36B.

    For more information on how to activate an existing non-activated IFQ account, persons may call the IFQ Customer Service line at 1-866-425-7627, and select option 2 during weekday business hours of 8 a.m. to 4:30 p.m., eastern time. NMFS will also attempt to notify holders of the non-activated IFQ accounts via certified mail to advise them of the potential action and provide an opportunity for those individuals to activate their accounts.

    Allocation

    Finally, this proposed rule addresses how to distribute allocation to IFQ shareholders in years in which there is an anticipated reduction of the commercial quota. Due to the time involved to develop documents, consider alternatives, and solicit public feedback, this situation would generally occur if the Council approved an action to reduce the commercial quota of any IFQ species or multi-species share category but NMFS could not complete the associated rulemaking before January 1, the start of the fishing year. Under the IFQ programs, annual allocation is distributed to IFQ shareholders on January 1, and most IFQ program participants begin to use or transfer their allocation early in each year. After shareholders begin transferring or landing allocation, NMFS is not able to retroactively withdraw allocation from shareholder accounts if a quota decrease became effective after the beginning of the fishing year. This proposed rule would allow NMFS to anticipate a decrease in the quota of any IFQ species or multi-species share categories after the start of a fishing year and withhold distribution of quota equal to the amount of the expected decrease in commercial quota. NMFS would distribute the remaining portion of the annual allocation to shareholders on January 1. If a final rule to implement the associated commercial quota reduction is not effective by June 1 in the same fishing year, then NMFS would distribute the withheld quota back to the current shareholders, as determined based on the date the withheld IFQ allocation was distributed.

    Approved Landing Locations

    As explained previously, this proposed rule would require vessel owners or operators on commercial trips who harvest non-IFQ Gulf reef fish species or Florida Keys/East Florida hogfish harvested in the Gulf to land at an approved landing location. In anticipation of this potential requirement, NMFS is encouraging current and potential participants to submit additional landing locations to NMFS now for approval. Landing locations can be submitted by calling IFQ Customer Service at any time (see contact information above). A list of currently approved landing locations for the IFQ programs can be found at the IFQ website (portal.southeast.fisheries.noaa.gov/cs/main.html), under View Landing Locations. Any landing locations that have been approved for use in the IFQ programs would also be approved to land non-IFQ Gulf reef fish species or Florida Keys/East Florida hogfish harvested in the Gulf. Therefore, NMFS suggests persons check the list to determine if desired landing locations are currently in use prior to submitting a landing location for approval.

    New landing locations are approved only at the end of each calendar-year quarter (end of March, June, September, and December). To have a landing location approved by the end of the quarter, it would have to be submitted at least 45 days before the quarter ends. Landing locations can be submitted at any time as described above.

    Approved landing locations must be publicly and freely accessible by land and water, and must have a street address or, if a particular landing location has no street address on record, global positioning system (GPS) coordinates for an identifiable geographic location provided in degrees and decimal minutes. Other criteria used by NOAA's Office of Law Enforcement (OLE) when approving locations are listed at 50 CFR 622.21(b)(5)(v) and 622.22(b)(5)(v), and would be added by reference to new paragraph 622.26(a)(2)(v) through this proposed rule.

    Once OLE approves new landing locations, updates to the landing notification screen on vessel monitoring system VMS units are constrained by programming requirements by the VMS vendors. Unless this changes, approved landing locations may not appear on the VMS screen immediately after approval.

    Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with Amendment 36A, the FMP, other provisions of the Magnuson-Stevens Act, and other applicable laws, subject to further consideration after public comment.

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

    The Magnuson-Stevens Act provides the statutory basis for this proposed rule. No duplicative, overlapping, or conflicting Federal rules have been identified. A description of this proposed rule, why it is being considered, and the objectives of this proposed rule are contained in the preamble and in the SUMMARY section of the preamble.

    The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration (SBA) that this proposed rule, if implemented, would not have a significant economic impact on a substantial number of small entities. A description of the factual basis for this determination follows.

    This proposed rule, if implemented, would expand the current requirement for vessels with a Federal commercial reef fish permit in the Gulf to notify NMFS in advance of landing reef fish species managed under an IFQ program. Commercial vessels landing Gulf reef fish not managed under an IFQ program or Florida Keys/East Florida hogfish harvested in the Gulf would also be required to notify NMFS prior to landing these species on each trip, although information reported (i.e., date, time, approved location of landing, and vessel identification number) would be more limited than reports for IFQ species. This proposed rule would also return shares from non-activated IFQ accounts in the RS-IFQ and GT-IFQ programs to NMFS for future redistribution; and provide NMFS with the authority to withhold annual allocation of red snapper, or IFQ-managed groupers and tilefishes before distribution at the beginning of a fishing year (January 1) in which a commercial quota reduction is expected to be implemented in that same fishing year. The amount of IFQ allocation withheld from distribution would equal the amount of the expected commercial quota reduction. If a final rule to implement a commercial quota reduction is not effective by June 1 during a fishing year, NMFS would release the withheld allocation to shareholders. The purposes of this proposed rule are to increase management flexibility and improve compliance in the RS-IFQ and GT-IFQ programs, and increase the likelihood of achieving OY for reef fish stocks managed under these programs. The objectives of this proposed rule are to prevent overfishing; to achieve, on a continuing basis, the OY from federally managed reef fish stocks; and to rebuild the red snapper stock that has been determined to be overfished.

    This proposed rule is expected to directly regulate businesses that harvest non-IFQ Gulf reef fish species in the Gulf or Florida Keys/East Florida hogfish harvested in the Gulf, but do not harvest IFQ species on the same commercial fishing trips in the Gulf, and businesses that possess non-activated share accounts in the RS-IFQ and GT-IFQ programs. There were 731 vessels that landed at least 1 lb (0.5 kg) of species managed under the RS-IFQ or GT-IFQ program from 2011 through 2015. These vessels were already subject to existing advance notice of landing requirements on trips for which they landed IFQ species. There were 1,020 vessels that landed at least 1 lb (0.5 kg) of Gulf reef fish species (i.e., IFQ and non-IFQ species) managed under the FMP. Thus, 289 vessels that land non-IFQ Gulf reef fish but do not land IFQ Gulf reef fish on commercial fishing trips would be directly regulated by the proposed expansion of the advance notice of landing requirements.

    Although NMFS possesses complete ownership data regarding businesses and commercial vessels that land IFQ species, ownership data regarding businesses that possess Gulf reef fish permits but do not land IFQ species is incomplete. Therefore, it is not currently feasible to accurately determine affiliations between these particular businesses. While it will result in an overestimate of the actual number of businesses directly regulated by the extension of the advance notice requirement, for the purposes of this analysis, it is assumed that each vessel is independently owned by a single business. In addition, the 81 non-activated IFQ accounts with shares are held by 81 different businesses. Based on available data, these businesses are separate and distinct from the 289 businesses directly regulated by the expanded advance notice of landing requirement.

    Thus, NMFS expects this proposed rule, if implemented, to directly regulate 289, or about 28 percent, of the 1,020 businesses that harvested Gulf reef fish species from 2011 through 2015 and 81 businesses that possessed shares in 81 non-activated IFQ accounts, or about 11 percent, of the 750 IFQ accounts that existed on December 14, 2016.

    NMFS has established a small business size standard of $11 million in annual gross receipts (revenue) for all businesses primarily engaged in the commercial fishing industry (NAICS code 11411) for RFA compliance purposes only (50 CFR 200.2). In addition to this gross revenue standard, a business primarily involved in commercial fishing is classified as a small business if it is independently owned and operated, and is not dominant in its field of operations (including its affiliates).

    Of the 1,020 vessels that harvested Gulf reef fish from 2011 through 2015, the maximum average annual gross revenue earned by a single vessel was approximately $4.65 million, while the average annual gross revenue across all commercial Gulf reef fish vessels was $130,574. Further, of the 81 businesses that possess shares in a non-activated IFQ account, only 1 of these businesses has been active in the commercial fishing industry during this time period. Because the other 80 businesses have not been active in the commercial fishing industry during this time, they have no known gross revenues. Although the one business that has been active owns six commercial fishing vessels, none of these vessels have been active in the industry since 2012. The average annual revenue for this business is confidential and therefore cannot be released, but it was significantly below the $11 million threshold.

    Based on the information above, all businesses directly regulated by this proposed rule are determined to be small businesses for the purpose of this analysis. Therefore, NMFS has determined that this proposed rule will affect a substantial number of small businesses.

    This proposed rule would establish new reporting requirements for vessels that harvest reef fish species in the Gulf that are not managed under the RS-IFQ or GT-IFQ programs. Specifically, the expansion of the advance notice of landing requirement would require commercially permitted Gulf reef fish vessels to contact NMFS prior to landing if they are landing non-IFQ Gulf reef fish species or Florida Keys/East Florida hogfish harvested in the Gulf on a trip where no IFQ species are being landed. The expanded advance notification requirement would cause these vessels to incur some minor additional communication costs and an additional time burden associated with reporting the required information (i.e., date, time, approved location of landing, and vessel identification number). The additional communication costs would not only vary by VMS vendor, but also by the communication plan chosen by each vessel owner. Under plans where the owner pays a fixed amount up to some specific level of data use, there would be no additional cost as a result of having to submit the required information. Conversely, the vessel owner would incur a cost if the owner chose a plan where communication costs are directly based, and therefore vary, depending on the size and number of messages being transmitted. The expanded advance notice of landing requirement would apply to an additional 1,042 trips per year on average by 289 additional vessels, or approximately 3.6 trips per vessel per year. Based on available information regarding VMS vendors and communication plans, vessel owners are expected to incur additional communication costs of up to about $0.33 per trip. For the 1,042 trips affected by the advance notice of landing requirement, additional communication costs across the fleet are expected to total $343.86. Thus, the average annual communication costs for each of the 289 vessel owners affected by this requirement is expected to be about $1.20, which is trivial relative to the average annual gross revenue for a commercial Gulf reef fish vessel.

    In addition to the communication cost, there is an opportunity cost associated with any time burden created by additional reporting requirements. Typically, opportunity cost is approximated using the average wage or salary of those covered by the requirement. Vessel owners or operators would be responsible for submitting the advance notice of landing, and thus it is appropriate to use the average wage of first line supervisors and managers in the fishing, forestry, and farming industries. As of May 2016, which is the most currently available information, the Bureau of Labor Statistics reported that the mean wage of individuals in this occupation group was $23.47. The expanded advance notice of landing requirement would apply to an additional 1,042 trips per year on average and the time burden associated with this requirement is 3 minutes per trip. Thus, the total additional time burden is approximately 52.1 hours per year. The expanded requirement would apply to an additional 289 vessels. Thus, the time burden per vessel would be approximately 0.18 hours per year per vessel. This results in an opportunity cost of approximately $4.23 per business per year, which is trivial relative to the average annual gross revenue for a commercial Gulf reef fish vessel.

    Based on the analysis above, the additional costs per business resulting from the expanded advance notice of landing requirement are expected to be minimal. In addition, the advance notice of landing would be submitted through the vessel's VMS. All Gulf reef fish vessels are required to use VMS, and VMS has been required on these vessels since 2006. Thus, special professional skills are not necessary to comply with this requirement.

    With respect to NMFS taking back shares from the 81 businesses that currently possess non-activated IFQ accounts, the market price of annual allocation should approximate the expected annual profit from using the annual allocation for harvesting purposes (i.e., to land fish). Based on the current market prices for annual allocation of red snapper and IFQ-managed groupers and tilefishes, these shares would be expected to result in profits of approximately $64,255 if the businesses chose to sell the annual allocation associated with these shares or use the annual allocation to harvest fish; more specifically, profits would be $45,988 from selling or using red snapper annual allocation and $18,267 from selling or using annual allocation for IFQ-managed grouper and tilefish species. Thus, the expected annual profit from selling the annual allocation associated with these shares, or using the allocation for harvesting purposes, is approximately $793 per business. Based on the current market prices of shares in the RS-IFQ and GT-IFQ programs, the market value of these shares is $716,525 in total, or $8,846 per business, with shares of red snapper valued at $500,366 and shares of IFQ-managed groupers and tilefishes valued at $216,159.

    However, as previously discussed, only 1 of these 81 businesses is still active in the commercial fishing industry with respect to harvesting activities, and that single business has not been active since 2012. These 81 businesses are not currently generating any gross revenues or profits, and NMFS assumes they have been out of business for several years. Further, these businesses have held these shares and had access to the associated annual allocation for several years, but have chosen not to sell their shares or annual allocation or use their annual allocation for harvesting purposes. Thus, although these shares and annual allocations have value to other businesses in the IFQ programs based on their respective market prices, the behavior of these 81 businesses suggests they do not place any value on these shares and annual allocations. Because these businesses are not earning any revenues or profits at present and have never used these shares to earn revenues or profits, nor are they expected to, taking these shares away from them would not be expected to reduce their revenues or profits below their current or expected levels in the future. Further, if NMFS were to allow these businesses to retain these shares in non-activated IFQ accounts, these shares could not be used by other businesses still active in the IFQ programs to generate revenues and profits. Taking these shares back so they can be redistributed would allow the active businesses' revenues and profits to increase in the future.

    Finally, the action that provides NMFS with the authority to withhold annual allocation of red snapper, or IFQ-managed groupers and tilefishes before distribution at the beginning of a fishing year as described previously is administrative in nature, because it does not directly regulate any entities and thus would not be expected to alter their behavior. Therefore, NMFS does not expect this action to directly regulate or affect any small entities.

    Based on the information above, NMFS does not expect a reduction in profits for a substantial number of small entities as a result of this proposed rule. Thus, this proposed rule would not have a significant economic impact on a substantial number of small entities and an initial regulatory flexibility analysis is not required and none has been prepared.

    This proposed rule contains a collection-of-information requirement subject to review and approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (PRA). This requirement has been submitted to OMB for approval. NMFS is proposing to revise the collection-of-information requirement under OMB Control Number 0648-0551, Southeast Region IFQ Programs. The proposed rule would require owners or operators of vessels with commercial Gulf reef fish permits to submit a notification to NMFS on each trip prior to landing exclusively non-IFQ Gulf reef fish species or Florida Keys/East Florida hogfish harvested in the Gulf. Public reporting burden for the proposed requirement is estimated to average 3 minutes per applicable trip, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection information.

    Public comment is sought regarding: Whether this proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; the accuracy of the burden estimate; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the collection of information, including through the use of automated collection techniques or other forms of information technology. Send comments on these or any other aspects of the collection of information to the Southeast Regional Office at the ADDRESSES above, and by email to [email protected] or fax to 202-395-5806.

    Notwithstanding any other provision of the law, no person is required to respond to, and no person will be subject to penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number. All currently approved collections of information may be viewed at http://www.cio.noaa.gov/services_programs/prasubs.html.

    List of Subjects in 50 CFR Part 622

    Commercial, Fisheries, Fishing, Grouper, Gulf of Mexico, Individual fishing quota, Red snapper, Tilefish.

    Dated: March 15, 2018. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

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

    PART 622—FISHERIES OF THE CARIBBEAN, GULF OF MEXICO, AND SOUTH ATLANTIC 1. The authority citation for part 622 continues to read as follows: Authority:

    16 U.S.C. 1801 et seq.

    2. In § 622.21, revise paragraph (a)(4) and add paragraph (a)(6) to read as follows:
    § 622.21 Individual fishing quota (IFQ) program for Gulf red snapper.

    (a) * * *

    (4) IFQ allocation. IFQ allocation is the amount of Gulf red snapper, in pounds gutted weight, an IFQ shareholder or allocation holder is authorized to possess, land, or sell during a given fishing year. IFQ allocation is derived at the beginning of each year by multiplying a shareholder's IFQ share times the annual commercial quota for Gulf red snapper. If the quota is increased after the beginning of the fishing year, then IFQ allocation is derived by multiplying a shareholder's IFQ share at the time of the quota increase by the amount the annual commercial quota for red snapper is increased. If a reduction in the commercial quota specified in § 622.39(a)(1)(i) is expected to occur after January 1, the beginning of the fishing year, but before June 1 in that same fishing year, NMFS will withhold distribution of IFQ allocation on January 1. The amount of IFQ allocation withheld from distribution will equal the amount of the expected commercial quota reduction. If a final rule to implement the commercial quota reduction is not published in the Federal Register and effective by June 1, NMFS will distribute withheld IFQ allocation of red snapper commercial quota to current shareholders based on shareholdings on the date the withheld IFQ allocation is distributed.

    (6) Returning IFQ shares. Any shares contained in IFQ accounts that have never been activated since January 1, 2010, in the IFQ program are returned permanently to NMFS on [the effective date of a final rule implementing Amendment 36A].

    3. In § 622.22, revise paragraph (a)(4) and add paragraph (a)(9) to read as follows:
    § 622.22 Individual fishing quota (IFQ) program for Gulf groupers and tilefishes.

    (a) * * *

    (4) IFQ allocation. IFQ allocation is the amount of Gulf groupers and tilefishes, in pounds gutted weight, an IFQ shareholder or allocation holder is authorized to possess, land, or sell during a given fishing year. IFQ allocation is derived at the beginning of each year by multiplying a shareholder's IFQ share times the annual commercial quota for Gulf groupers and tilefishes. If the quota is increased after the beginning of the fishing year, then IFQ allocation is derived by multiplying a shareholder's IFQ share at the time of the quota increase by the amount the annual commercial quota for groupers and tilefishes is increased. If a reduction in the applicable commercial quota specified in § 622.39(a)(1) is expected to occur after January 1, the beginning of the fishing year, but before June 1 in that same fishing year, NMFS will withhold distribution of IFQ allocation of the applicable groupers and tilefishes commercial quota on January 1. The amount of IFQ allocation withheld from distribution will equal the amount of the expected commercial quota reduction. If a final rule to implement the commercial quota reduction is not published in the Federal Register and effective by June 1, NMFS will distribute withheld IFQ allocation of the applicable groupers and tilefishes commercial quota to current shareholders based on the date the withheld IFQ allocation is distributed.

    (9) Returning IFQ shares. Any shares contained in IFQ accounts that have never been activated since January 1, 2010, in the IFQ program are returned permanently to NMFS on [the effective date of a final rule implementing Amendment 36A].

    4. In § 622.26, revise paragraph (a) to read as follows:
    § 622.26 Recordkeeping and reporting.

    (a) Commercial vessel owners and operators. (1) The owner or operator of a vessel for which a commercial permit for Gulf reef fish has been issued, as required under § 622.20(a)(1), or whose vessel fishes for or lands reef fish in or from state waters adjoining the Gulf EEZ, who is selected to report by the SRD must maintain a fishing record on a form available from the SRD. These completed fishing records must be submitted to the SRD postmarked no later than 7 days after the end of each fishing trip. If no fishing occurred during a calendar month, a report so stating must be submitted on one of the forms postmarked no later than 7 days after the end of that month. Information to be reported is indicated on the form and its accompanying instructions.

    (2) Advance notice of landing—(i) General requirement. For the purpose of this paragraph, landing means to arrive at a dock, berth, beach, seawall, or ramp. The owner or operator of a vessel landing Gulf reef fish not managed under an IFQ program or Florida Keys/East Florida hogfish harvested in the Gulf is responsible for ensuring that NMFS is contacted at least 3 hours, but no more than 24 hours, in advance of landing to report the time, date, and location of landing, and the vessel identification number (e.g., Coast Guard registration number or state registration number). The vessel must land at an approved landing location and within 1 hour after the time given in the landing notification, except as provided in paragraph (a)(2)(iii) of this section. A vessel landing Gulf reef fish managed under an IFQ program must also comply with the requirements in §§ 622.21 and 622.22, as applicable.

    (ii) Submitting an advance landing notification. Authorized methods for contacting NMFS and submitting a completed landing notification include the VMS unit, or another contact method approved by NMFS.

    (iii) Landing prior to the notification time. The owner or operator of a vessel that has completed a landing notification and submitted it to NMFS may land prior to the notification time, only if an authorized officer is present at the landing site, is available to meet the vessel, and has authorized the owner or operator of the vessel to land prior to the notification time.

    (iv) Changes to a landing notification. The owner or operator of a vessel who has submitted a landing notification to NMFS may make changes to the notification by submitting a superseding notification. If the initial superseding notification makes changes to the time of landing that is later than the original time in the notification, the vessel does not need to wait an additional 3 hours to land. If the initial superseding notification makes changes to the landing location, the time of landing is earlier than previously specified, or more than one superseding notification is submitted on a trip, the vessel must wait an additional 3 hours to land, except as provided in paragraph (a)(2)(iii) of this section.

    (v) Approved landing locations. Gulf reef fish not managed under an IFQ program, and Florida Keys/East Florida hogfish harvested in the Gulf, must be landed at an approved landing location. Landing locations must be approved by the NOAA Office of Law Enforcement prior to a vessel landing these species at these sites. Proposed landing locations may be submitted to NMFS; however, new landing locations will be approved only at the end of each calendar-year quarter. To have a landing location approved by the end of the calendar-year quarter, it must be submitted at least 45 days before the end of the calendar-year quarter. NMFS will evaluate the proposed sites based on, but not limited to, the criteria at 50 CFR 622.21(b)(5)(v) and 622.22(b)(5)(v).

    [FR Doc. 2018-05628 Filed 3-20-18; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 635 RINs 0648-XG007, 0648-XF947 Atlantic Highly Migratory Species; Atlantic Bluefin Tuna Fisheries; Pelagic Longline Fishery Management and Shortfin Mako Shark Management Measures AGENCY:

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

    ACTION:

    Notice of rescheduled scoping meeting.

    SUMMARY:

    On March 2, 2018, NMFS published a Notice of Intent with scoping meeting dates for upcoming rulemaking for pelagic longline bluefin tuna area-based and weak hook management. On March 5, 2018, NMFS published a Notice of Intent with scoping meeting dates for Amendment 11 to the 2006 Consolidated HMS FMP. In this notice, per a request from constituents in that area, NMFS reschedules the New Jersey meeting date and provides a new meeting location.

    DATES:

    The scoping meeting will now be held on April 11, 2018, from 4 p.m. to 8 p.m..

    ADDRESSES:

    The scoping meeting will now be held in Little Egg Harbor, NJ, at the Little Egg Harbor Branch Library, 290 Mathistown Road, Little Egg Harbor, NJ 08087.

    FOR FURTHER INFORMATION CONTACT:

    Guý DuBeck or Craig Cockrell by phone: 301-427-8503, or Jennifer Cudney by phone: 727-824-5399.

    SUPPLEMENTARY INFORMATION:

    Regulations implemented under the authority of the Atlantic Tunas Convention Act (ATCA; 16 U.S.C. 971 et seq.) and the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act; 16 U.S.C. 1801 et seq.) governing the harvest of HMS, including bluefin tuna and sharks, by persons and vessels subject to U.S. jurisdiction are found at 50 CFR 635.

    On March 2, 2018, NMFS published a Notice of Intent (83 FR 8969) with scoping meeting dates for pelagic longline bluefin tuna area-based and weak hook management. The notice announced a public process for determining the scope of issues to be addressed and for identifying the significant issues relating to the management of Atlantic HMS, with a focus on area-based management measures and weak hook management measures that were implemented to reduce dead discards of bluefin tuna in the pelagic longline fishery. On March 5, 2018, NMFS published a Notice of Intent (83 FR 9255) with scoping meeting dates for Amendment 11 to the 2006 Consolidated HMS FMP. This notice announced consideration of potential new management measures for shortfin mako sharks that could be implemented through rulemaking to address overfishing and to implement, as necessary and appropriate, measures adopted by the International Commission for the Conservation of Atlantic Tunas (ICCAT) (ICCAT Recommendation 17-08) in response to the 2017 shortfin mako shark stock assessment.

    Due to a request to reschedule the meeting due to a conflict with another meeting for local constituents, NMFS is canceling the original scoping meeting that had been scheduled for April 12, 2018 in Manahawkin, NJ and changing it to another date and location. The scoping meeting in New Jersey is now scheduled for April 11, 2018, in Little Egg Harbor, NJ (see ADDRESSES and DATES).

    Because the rulemakings overlap for some gear types, the public scoping meeting being held in Little Egg Harbor, NJ will address the issues from the scoping documents for both the pelagic longline bluefin tuna area-based and weak hook management and Amendment 11 to the 2006 Consolidated HMS FMP. The shortfin mako shark management measure presentation will likely be given first unless polling of the audience indicates another approach is appropriate. After each presentation, public comment for that issue will be received. Meeting attendees interested in this issue are encouraged to show up at the beginning of the meeting to help determine the order of the presentations. The second presentation will not start any later than 6 p.m.

    The public is reminded that NMFS expects participants at the public hearings to conduct themselves appropriately. At the beginning of each public hearing, a representative of NMFS will explain the ground rules (e.g., alcohol is prohibited from the hearing room; attendees will be called to give their comments in the order in which they registered to speak; each attendee will have an equal amount of time to speak; and attendees should not interrupt one another). The NMFS representative will attempt to structure the meeting so that all attending members of the public will be able to comment, if they so choose, regardless of the controversial nature of the subject(s). Attendees are expected to respect the ground rules, and, if they do not, they may be asked to leave the hearing.

    Authority:

    16 U.S.C. 971 et seq; 16 U.S.C. 1801 et seq.

    Dated: March 16, 2018. Emily H. Menashes, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2018-05702 Filed 3-20-18; 8:45 am] BILLING CODE 3510-22-P
    83 55 Wednesday, March 21, 2018 Notices DEPARTMENT OF AGRICULTURE Food Safety and Inspection Service [Docket No. FSIS-2018-0003] Notice of Request for Revision to an Approved Information Collection (Public Health Information System) AGENCY:

    Food Safety and Inspection Service, USDA.

    ACTION:

    Notice and request for comments.

    SUMMARY:

    In accordance with the Paperwork Reduction Act of 1995 and the Office of Management and Budget (OMB) regulations, the Food Safety and Inspection Service (FSIS) is announcing its intention to revise the approved information collection for the FSIS Public Health Information System (PHIS) to include the FSIS standard export certificate forms 9060-5, 9060-5S, 9060-5A, and 9060-5B. The estimated burden will increase by 11,303 hours due to the addition of these export certificate forms. The approval for this information collection will expire on January 31, 2021.

    DATES:

    Submit comments on or before May 21, 2018.

    ADDRESSES:

    FSIS invites interested persons to submit comments on this information collection. Comments may be submitted by one of the following methods:

    Federal eRulemaking Portal: This website provides the ability to type short comments directly into the comment field on this web page or attach a file for lengthier comments. Go to http://www.regulations.gov. Follow the on-line instructions at that site for submitting comments.

    Mail, including CD-ROMs, etc.: Send to Docket Clerk, U.S. Department of Agriculture, Food Safety and Inspection Service, Docket Clerk, Patriots Plaza 3, 1400 Independence Avenue SW, Mailstop 3782, Room 8-163A, Washington, DC 20250-3700.

    Hand- or courier-delivered submittals: Deliver to Patriots Plaza 3, 355 E Street SW, Room 8-163A, Washington, DC 20250-3700.

    Instructions: All items submitted by mail or electronic mail must include the Agency name and docket number FSIS-2018-0003. Comments received in response to this docket will be made available for public inspection and posted without change, including any personal information, to http://www.regulations.gov.

    Docket: For access to background documents or comments received, go to the FSIS Docket Room at Patriots Plaza 3, 355 E Street SW, Room 8-164, Washington, DC 20250-3700 between 8:00 a.m. and 4:30 p.m., Monday through Friday.

    FOR FURTHER INFORMATION CONTACT:

    Gina Kouba, Office of Policy and Program Development, Food Safety and Inspection Service, USDA, 1400 Independence Avenue SW, Room 6065, South Building, Washington, DC 20250-3700; (202) 720-5627.

    SUPPLEMENTARY INFORMATION:

    Title: Public Health Information System.

    OMB Number: 0583-0153.

    Expiration Date of Approval: 01/31/2021.

    Type of Request: Revision of an approved information collection.

    Abstract: FSIS has been delegated the authority to exercise the functions of the Secretary (7 CFR 2.18, 2.53) as specified in the Federal Meat Inspection Act (FMIA) (21 U.S.C. 601, et seq.), the Poultry Products Inspection Act (PPIA) (21 U.S.C. 451, et seq.), and the Egg Products Inspection Act (EPIA) (21 U.S.C. 1031, et seq.). FSIS protects the public by verifying that meat, poultry, and egg products are safe, wholesome, not adulterated, and correctly labeled and packaged.

    FSIS is requesting a revision to the approved information collection for the FSIS Public Health Information System (PHIS) to include the FSIS standard export certificate forms 9060-5, 9060-5S, 9060-5A, and 9060-5B. The estimated burden will increase by 11,303 hours due to the addition of these export certificate forms. The approval for this information collection will expire on January 31, 2021.

    FSIS requires the use of FSIS Form 9060-5 “Meat and Poultry Export Certificate of Wholesomeness” for all meat and poultry exports (9 CFR 322.2 and 9 CRF 381.106). FSIS requires the use of FSIS Form 9060-5S “Fish and Fish Products Export Certificate of Wholesomeness” for all exports of fish of the order Siluriformes (9 CFR 552.1, cross-referencing 322.2). FSIS also requires the use of FSIS Form 9060-5A “Meat, Poultry, and Egg Products Certificate of Wholesomeness (Continuation Sheet)” and FSIS Form 9060-5B “Meat, Poultry, and Egg Products Certificate of Wholesomeness (Continuation Sheet)” (9 CFR 322.2 and 9 CFR 381.106) to capture additional statements or information that will not fit in the remarks section of FSIS Forms 9060-5 and 9060-5S. In most cases, the FSIS Public Health Information System will automatically populate the information that is collected on the FSIS standard export certificate forms from the FSIS Form 9060-6 “Application for Export Certificate.” The FSIS Form 9060-6 is an approved form under this collection. FSIS is seeking approval for any collection of information for the FSIS standard export certificate forms that might occur on paper. FSIS has made the following estimates based upon an information collection assessment:

    Estimate of burden: The public reporting burden for this collection of information is estimated to average .179 hours per response.

    Estimated total number of respondents: 6,242.

    Estimated average number of responses per respondent: 103.

    Estimated annual number of responses: 643,008.

    Estimated Total Annual Burden on Respondents: 115,117 hours. Copies of this information collection assessment can be obtained from Gina Kouba, Office of Policy and Program Development, Food Safety and Inspection Service, USDA, 1400 Independence Avenue SW, Room 6065, South Building, Washington, DC 20250-3700; (202) 720-5627.

    Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of FSIS's functions, including whether the information will have practical utility; (b) the accuracy of FSIS's estimate of the burden of the proposed collection of information, including the validity of the method and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques, or other forms of information technology. Comments may be sent to both FSIS, at the addresses provided above, and the Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget, Washington, DC 20253.

    Responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.

    Additional Public Notification

    Public awareness of all segments of rulemaking and policy development is important. Consequently, FSIS will announce this Federal Register publication on-line through the FSIS web page located at: http://www.fsis.usda.gov/federal-register.

    FSIS also will make copies of this publication available through the FSIS Constituent Update, which is used to provide information regarding FSIS policies, procedures, regulations, Federal Register notices, FSIS public meetings, and other types of information that could affect or would be of interest to our constituents and stakeholders. The Update is available on the FSIS web page. Through the web page, FSIS is able to provide information to a much broader, more diverse audience. In addition, FSIS offers an email subscription service which provides automatic and customized access to selected food safety news and information. This service is available at: http://www.fsis.usda.gov/subscribe. Options range from recalls to export information, regulations, directives, and notices. Customers can add or delete subscriptions themselves, and have the option to password protect their accounts.

    USDA Non-Discrimination Statement

    No agency, officer, or employee of the USDA shall, on the grounds of race, color, national origin, religion, sex, gender identity, sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, or political beliefs, exclude from participation in, deny the benefits of, or subject to discrimination any person in the United States under any program or activity conducted by the USDA.

    How To File a Complaint of Discrimination

    To file a complaint of discrimination, complete the USDA Program Discrimination Complaint Form, which may be accessed online at http://www.ocio.usda.gov/sites/default/files/docs/2012/Complain_combined_6_8_12.pdf, or write a letter signed by you or your authorized representative.

    Send your completed complaint form or letter to USDA by mail, fax, or email:

    Mail: U.S. Department of Agriculture, Director, Office of Adjudication, 1400 Independence Avenue SW, Washington, DC 20250-9410.

    Fax: (202) 690-7442.

    Email: [email protected].

    Persons with disabilities who require alternative means for communication (Braille, large print, audiotape, etc.), should contact USDA's TARGET Center at (202) 720-2600 (voice and TDD).

    Paul Kiecker, Acting Administrator.
    [FR Doc. 2018-05706 Filed 3-20-18; 8:45 am] BILLING CODE 3410-DM-P
    DEPARTMENT OF AGRICULTURE Food and Nutrition Service Agency Information Collection Activities: Proposed Collection; Comment Request—Special Supplemental Nutrition Program for Women, Infants and Children (WIC) Forms: FNS-698, FNS-699, and FNS-700; The Integrity Profile (TIP) AGENCY:

    Food and Nutrition Service, USDA.

    ACTION:

    Notice.

    SUMMARY:

    In accordance with the Paperwork Reduction Act of 1995, this notice invites the general public and other public agencies to comment on this proposed information collection.

    The purpose of the TIP Data Collection is to provide FNS and WIC State agencies with an annual data set that can be used to assess State agencies' compliance with WIC vendor management requirements and estimate State agencies' progress in eliminating fraud, waste, and abuse. This is an extension, without change, of a currently approved data collection.

    DATES:

    Written comments must be received on or before May 21, 2018.

    ADDRESSES:

    Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on those who are to respond, including through automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.

    Comments may be sent to: Amy Herring, Chief, Program Integrity and Monitoring Branch, Supplemental Food Programs Division, Food and Nutrition Service, U.S. Department of Agriculture, 3101 Park Center Drive, Room 510, Alexandria, VA 22302.

    Comments will also be accepted through the Federal eRulemaking Portal. Go to http://www.regulations.gov, and follow the online instructions for submitting comments electronically.

    All responses to this notice will be summarized and included in the request for OMB approval, and become a matter of public record.

    FOR FURTHER INFORMATION CONTACT:

    Requests for additional information or copies of this information collection should be directed to Amy Herring, (703) 305-2376.

    SUPPLEMENTARY INFORMATION:

    Title: The Integrity Profile (TIP) Data Collection.

    OMB Number: 0584-0401.

    Expiration Date: May 31, 2018.

    Type of Request: Extension, without change, of a currently approved data collection.

    Abstract: Each year, WIC State agencies administering the Special Supplemental Nutrition Program for Women, Infants and Children (WIC) are required by 7 CFR 246.12(j)(5) to submit to FNS an annual summary of the results of their vendor monitoring efforts in order to provide Congress, senior FNS officials, as well as the general public, assurance that every reasonable effort is being made to ensure integrity in the WIC Program. The number of WIC State agencies reporting remains at 90. This includes 50 geographic State agencies, 34 State agencies operated by Indian Tribal Organizations, the District of Columbia, Puerto Rico, Guam, American Samoa, the Commonwealth of Northern Marianas, and the Virgin Islands. All WIC State agencies use the TIP web-based system to report compliance and monitoring information. The reporting burden is comprised of three automated forms: The FNS-698, FNS-699, and FNS-700. The FNS-698 and FNS-699 are used to report State agency summary data, whereas the FNS-700 is used to capture information on each WIC authorized vendor. The number of vendors authorized by each WIC State agency varies. There are no changes in the burden hours associated with collection. There is no recordkeeping burden associated with this information collection request.

    Estimate of Burden: Public reporting burden for this collection of information is estimated at .167 for completing the FNS-698 form, .083 for completing the FNS-699 form, and .167 for completing the FNS-700 form. The total burden is estimated at 0.42 for completing all three forms including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

    Affected Public: State and Tribal agencies.

    Estimated Number of Respondents: 90 respondents.

    Estimated Number of Responses per Respondent: One response per each form.

    Estimated Total Annual Responses: 270 responses.

    Estimated Total Annual Burden on Respondents: 38 hours.

    Type of respondent Form No. Number of
  • respondents
  • Number of
  • responses
  • annually per
  • respondent
  • Total annual responses Estimate of burden hours per response Total annual burden hours
    (c × d) (e × f) WIC State Agencies FNS-698 90 1 90 0.167 15.03 FNS-699 90 1 90 0.083 7.47 FNS-700 90 1 90 0.167 15.03 Total 90 270 37.53
    Dated: March 12, 2018. Brandon Lipps, Administrator, Food and Nutrition Service.
    [FR Doc. 2018-05704 Filed 3-20-18; 8:45 am] BILLING CODE 3410-30-P
    DEPARTMENT OF AGRICULTURE Forest Service Meeting of the Collaborative Forest Restoration Program Technical Advisory Panel AGENCY:

    Forest Service, USDA.

    ACTION:

    Notice of meeting.

    SUMMARY:

    The Collaborative Forest Restoration Program (CFRP) Technical Advisory Panel (Panel) will meet in Albuquerque, New Mexico. The Panel is established consistent with the Federal Advisory Committee Act of 1972 (FACA), and Title VI of the Community Forest Restoration Act (the Act). Additional information concerning the Panel, including the meeting summary/minutes, can be found by visiting the Panel's website at: http://www.fs.usda.gov/goto/r3/cfrp.

    DATES:

    The meeting will be held on Monday, April 30, 2018, from 9:00 a.m. to 5:00 p.m. MST to Friday, May 4, 2018, from 9:00 a.m.-5:00 p.m. MST.

    All meetings are subject to cancellation. For updated status of the meeting prior to attendance, please contact the person listed under For Further Information Contact.

    ADDRESSES:

    The meeting will be held at the Hyatt Place Albuquerque/Uptown, 6901 Arvada Avenue, Northeast, Albuquerque, New Mexico.

    Written comments may be submitted as described under Supplementary Information. All comments, including names and addresses, when provided, are placed in the record and available for public inspection and copying. The public may inspect comments received at the Cooperative and International Forestry Office. Please call ahead to facilitate entry into the building.

    FOR FURTHER INFORMATION CONTACT:

    Walter Dunn, Designated Federal Officer, USDA Forest Service, 333 Broadway SE, Albuquerque, New Mexico 87102; by phone at (505) 842-3425, by email at [email protected], or via fax at (505) 842-3165.

    Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8:00 a.m. and 8:00 p.m., Eastern Standard Time, Monday through Friday.

    SUPPLEMENTARY INFORMATION:

    The purpose of the meeting is to:

    (1) Review Panel Bylaws, Charter, and what it means to be a Federal Advisory Committee,

    (2) Evaluate and score the 2018 CFRP grant applications to determine which best meet the program objectives,

    (3) Develop prioritized 2018 CFRP project funding recommendations for the Secretary,

    (4) Develop an agenda and identify members for the 2018 CFRP Sub-Committee for the review of multi-party monitoring reports from completed projects, and

    (5) Discuss the proposal review process used by the Panel to identify what went well and what could be improved.

    The meeting is open to the public. Panel discussion is limited to Panel members and Forest Service staff. Project proponents may make brief presentations to the Panel summarizing their grant application and respond to questions of clarification from Panel members or Forest Service staff. However, the agenda will include time for people to make oral statements of three minutes or less. Individuals wishing to make an oral statement should submit a request in writing by April 27, 2018, to be scheduled on the agenda. Anyone who would like to bring CFRP grant application review related matters to the attention of the Panel may file written statements with the Panel's staff before or after each day of the meeting. Written comments and time requests for oral comments must be sent to the person listed under For Further Information Contact.

    Meeting Accommodations: If you are a person requiring reasonable accommodation, please make requests in advance for sign language interpreting, assistive listening devices or other reasonable accommodation for access to the facility or proceedings by contacting the person listed in the section titled For Further Information Contact. All reasonable accommodation requests are managed on a case by case basis.

    Dated: February 26, 2018. Patti Hirami, Associate Deputy Chief, State & Private Forestry.
    [FR Doc. 2018-05649 Filed 3-20-18; 8:45 am] BILLING CODE 3411-15-P
    CHEMICAL SAFETY AND HAZARD INVESTIGATION BOARD Sunshine Act Meeting TIME AND DATE:

    April 4, 2018, 1:00 p.m. EDT.

    PLACE:

    U.S. Chemical Safety Board, 1750 Pennsylvania Ave. NW, Suite 910, Washington, DC 20006.

    STATUS:

    Open to the public.

    MATTERS TO BE CONSIDERED:

    The Chemical Safety and Hazard Investigation Board (CSB) will convene a public meeting on Wednesday, April 4, 2018 at 1:00 p.m. EDT in Washington, DC, at the CSB offices located at 1750 Pennsylvania Avenue NW, Suite 910. The Board will discuss open investigations, the status of audits from the Office of the Inspector General, financial and organizational updates, and a review of the agency's action plan. The Board will also consider and possibly vote on a proposed change to Board Order 022, the CSB Recommendations Program. New business may include a discussion and release of an animation related to the CSB's investigation of the February 2017 Packaging Corporation of America incident in Deridder, Louisiana.

    Additional Information

    The meeting is free and open to the public. If you require a translator or interpreter, please notify the individual listed below as the “Contact Person for Further Information,” at least three business days prior to the meeting.

    A conference call line will be provided for those who cannot attend in person. Please use the following dial-in number to join the conference:

    Dial-In: 888-862-6557 Audience US Toll Free, 630-691-2748 Audience US Toll.

    Confirmation Number: 46617104.

    The CSB is an independent federal agency charged with investigating incidents and hazards that result, or may result, in the catastrophic release of extremely hazardous substances. The agency's Board Members are appointed by the President and confirmed by the Senate. CSB investigations look into all aspects of chemical accidents and hazards, including physical causes such as equipment failure as well as inadequacies in regulations, industry standards, and safety management systems.

    Public Comment

    The time provided for public statements will depend upon the number of people who wish to speak. Speakers should assume that their presentations will be limited to three minutes or less, but commenters may submit written statements for the record.

    Contact Person for Further Information

    Hillary Cohen, Communications Manager, at [email protected] or (202) 446-8094. Further information about this public meeting can be found on the CSB website at: www.csb.gov.

    Dated: March 19, 2018. Raymond Porfiri, Deputy General Counsel, Chemical Safety and Hazard Investigation Board.
    [FR Doc. 2018-05870 Filed 3-19-18; 4:15 pm] BILLING CODE 6350-01-P
    COMMISSION ON CIVIL RIGHTS Notice of Public Meeting of the Virginia Advisory Committee AGENCY:

    Commission on Civil Rights.

    ACTION:

    Announcement of meeting.

    SUMMARY:

    Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission), and the Federal Advisory Committee Act (FACA) that a meeting of the Virginia Advisory Committee to the Commission will convene by conference call at 12:00 p.m. (EST) on Wednesday, March 21, 2018. The purpose of the meeting is to receive status reports from the Planning Workgroup suggesting plans for examining hate crimes in VA and to make decisions as necessary.

    DATES:

    Wednesday, March 21, 2018, at 12:00 p.m. EST.

    ADDRESSES:

    Public call-in information: Conference call-in number: 1-800-474-8920 and conference call 8310490.

    FOR FURTHER INFORMATION CONTACT:

    Ivy Davis at [email protected] or by phone at 202-376-7533.

    SUPPLEMENTARY INFORMATION:

    Interested members of the public may listen to the discussion by calling the following toll-free conference call-in number: 1-800-474-8920 and conference call 8310490. Please be advised that before placing them into the conference call, the conference call operator will ask callers to provide their names, their organizational affiliations (if any), and email addresses (so that callers may be notified of future meetings). Callers can expect to incur charges for calls they initiate over wireless lines, and the Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free conference call-in number.

    Persons with hearing impairments may also follow the discussion by first calling the Federal Relay Service at 1-800-977-8339 and providing the operator with the toll-free conference call-in number: 1-800-474-8920 and conference call 8310490.

    Members of the public are invited to submit written comments. The comments must be received in the regional office approximately 30 days after each scheduled meeting. Written comments may be mailed to the Eastern Regional Office, U.S. Commission on Civil Rights, 1331 Pennsylvania Avenue Suite 1150, Washington, DC 20425, or emailed to Corrine Sanders at [email protected] Persons who desire additional information may contact the Eastern Regional Office at (202) 376-7533.

    Records and documents discussed during the meeting will be available for public viewing as they become available at https://database.faca.gov/committee/meetings.aspx?cid=279, click the “Meeting Details” and “Documents” links. Records generated from this meeting may also be inspected and reproduced at the Eastern Regional Office, as they become available, both before and after the meetings. Persons interested in the work of this advisory committee are advised to go to the Commission's website, www.usccr.gov, or to contact the Eastern Regional Office at the above phone numbers, email or street address.

    Agenda: Wednesday, March 21, 2018, 12:00 p.m. EST • Rollcall • Project Planning: Collateral Consequences • Update From Committee Workgroups • Next Steps • Other Business • Adjourn Dated: March 15, 2018. David Mussatt, Supervisory Chief, Regional Programs Unit.
    [FR Doc. 2018-05665 Filed 3-20-18; 8:45 am] BILLING CODE P
    COMMISSION ON CIVIL RIGHTS Agenda and Notice of Public Meeting of the Colorado Advisory Committee AGENCY:

    Commission on Civil Rights.

    ACTION:

    Announcement of meetings.

    SUMMARY:

    Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission), and the Federal Advisory Committee Act (FACA), that a planning meeting of the Colorado Advisory Committee to the Commission will by teleconference at 5:00 p.m. (MDT) on Friday, April 13, 2018. The purpose of the meeting is to review, discuss and vote on a draft of the No Aid Report after allowing for a 30-day public comment period.

    DATES:

    Friday, April 13 2018, at 5:00 p.m. MDT.

    ADDRESSES:

    Public call-in information: Conference call-in number: 1-800-310-7032 and conference call 2278223.

    FOR FURTHER INFORMATION CONTACT:

    Evelyn Bohor, at [email protected] or by phone at 303-866-1040.

    SUPPLEMENTARY INFORMATION:

    Interested members of the public may listen to the discussion by calling the following toll-free conference call-in number: 1-800-310-7032 and conference call 2278223. Please be advised that before placing them into the conference call, the conference call operator will ask callers to provide their names, their organizational affiliations (if any), and email addresses (so that callers may be notified of future meetings). Callers can expect to incur charges for calls they initiate over wireless lines, and the Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free conference call-in number.

    Persons with hearing impairments may also follow the discussion by first calling the Federal Relay Service at 1-800-877-8339 and providing the operator with the toll-free conference call-in number: 1-800-310-7032 and conference call 2278223.

    Members of the public are invited to make statements during the open comment period of the meeting or submit written comments. The comments must be received in the regional office approximately 30 days after each scheduled meeting. Written comments may be mailed to the Rocky Mountain Regional Office, U.S. Commission on Civil Rights, 1961 Stout Street, Suite 13-201, Denver, CO 80294, faxed to (303) 866-1040, or emailed to Evelyn Bohor at [email protected] Persons who desire additional information may contact the Rocky Mountain Regional Office at (303) 866-1040.

    Records and documents discussed during the meeting will be available for public viewing as they become available at https://www.facadatabase.gov/committee/meetings.aspx?cid=238; click the “Meeting Details” and “Documents” links. Records generated from this meeting may also be inspected and reproduced at the Rocky Mountain Regional Office, as they become available, both before and after the meeting. Persons interested in the work of this advisory committee are advised to go to the Commission's website, www.usccr.gov, or to contact the Rocky Mountain Regional Office at the above phone numbers, email or street address.

    Agenda: Friday, April 13, 2018, 5:00 (MDT) • Rollcall and Welcome • Review, Discuss and Vote on No Aid Report after End of 30-day Public Comment Period • Open Comment • Adjourn Dated: March 16, 2018. David Mussatt, Supervisory Chief, Regional Programs Unit.
    [FR Doc. 2018-05732 Filed 3-20-18; 8:45 am] BILLING CODE P
    DEPARTMENT OF COMMERCE International Trade Administration [C-570-048] Certain Carbon and Alloy Steel Cut-to-Length Plate From the People's Republic of China: Preliminary Results of Countervailing Duty Expedited Review AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (Commerce) is conducting an expedited review of the countervailing duty (CVD) order on certain carbon and alloy steel cut-to-length plate (CTL plate) from the People's Republic of China (China) for the January 1, 2015, through December 31, 2015, period of review (POR). We preliminarily determine that Jiangsu Tiangong Tools Company Limited (TG Tools) received countervailable subsidies during the POR.

    DATES:

    Applicable March 21, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Kabir Archuletta, AD/CVD Operations, Office V, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-2593.

    Scope of the Order

    The product covered by this order is CTL plate. A full description of the scope of the order is contained in the Preliminary Decision Memorandum, which is hereby adopted by this notice.1

    1See Memorandum, “Preliminary Results of Expedited Review of the Countervailing Duty Order on Certain Carbon and Alloy Steel Cut-to-Length Plate from the People's Republic of China,” dated concurrently with this notice (Preliminary Decision Memorandum).

    Methodology

    On March 20, 2017, Commerce issued a countervailing duty order on CTL plate from China.2 Commerce is conducting this CVD expedited review in accordance with 19 CFR 351.214(k). For a full description of the methodology underlying our preliminary conclusions, see the Preliminary Decision Memorandum. The list of topics discussed in the Preliminary Decision Memorandum is included as an Appendix to this notice. The Preliminary Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at http://access.trade.gov, and is available to all parties in the Central Records Unit, room B8024 of the main Department of Commerce building. In addition, a complete version of the Preliminary Decision Memorandum can be accessed directly on the internet at http://enforcement.trade.gov/frn/index.html. The signed Preliminary Decision Memorandum and the electronic versions of the Preliminary Decision Memorandum are identical in content.

    2See Certain Carbon and Alloy Steel Cut-to-Length Plate from the People's Republic of China: Countervailing Duty Order, 82 FR 14346 (March 20, 2017).

    Preliminary Results of Review

    As a result of this review, we preliminarily determine the following countervailable subsidy rate:

    Company Subsidy rate
  • (percent)
  • Jiangsu Tiangong Tools Company Limited, Tiangong Aihe Company Limited, Jiangsu Tiangong Group Company Limited, Jiangsu Tiangong Mould Steel R&D Center Company Limited 29.43
    Disclosure and Public Comment

    Commerce will disclose to parties to this proceeding the calculations performed in connection with these preliminary results within five days of publication of this notice.3 Interested parties may submit case briefs within 30 days of publication of these preliminary results and rebuttal briefs no later than five days after the deadline for filing case briefs.4 Rebuttal briefs must be limited to issues raised in the case briefs.5 Parties who submit case or rebuttal briefs are requested to submit with the argument: (1) A statement of the issue; (2) a brief summary of the argument; and, (3) a table of authorities.6 Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing must do so within 30 days of publication of these preliminary results by submitting a written request to the Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce, filed electronically using ACCESS. Requests should contain the party's name, address, and telephone number; the number of participants; and a list of the issues to be discussed. If a request for a hearing is made, we will inform parties of the scheduled date for the hearing which will be held at the U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230, at a time and location to be determined. Parties should confirm by telephone the date, time, and location of the hearing two days before the scheduled date.

    3See 19 CFR 351.224(b).

    4See 19 CFR 351.309(c)(1)(ii) and (d)(1).

    5See 19 CFR 351.309(d)(2).

    6See 19 CFR 351.309(c)(2) and (d)(2).

    Unless the deadline is extended pursuant to 19 CFR 351.214(h)(i)(2), Commerce will issue the final results of this expedited review, including the results of its analysis of issues raised in any written briefs, within 90 days after the date of publication of these preliminary results.

    Cash Deposit Instructions

    Pursuant to section 19 CFR 351.214(k)(3)(iii), the final results of this expedited review will not be the basis for the assessment of countervailing duties. Upon issuing the final results, Commerce intends to instruct Customs and Border Protection to collect cash deposits of estimated countervailing duties for the companies subject to this expedited review, at the rates shown above, on shipments of subject merchandise entered, or withdrawn from warehouse, for consumption on or after the date of publication of the final results of this expedited review. These cash deposit requirements, when imposed, shall remain in effect until further notice. Pursuant to 19 CFR 351.214(k)(3)(iv), however, if TG Tools has a final estimated net subsidy rate that is zero or de minimis, it will be excluded from the order.

    This determination is issued and published pursuant to sections 751(a)(1) and 777(i) of the Act and 19 CFR 351.214(h) and (k).

    Dated: March 15, 2018. Gary Taverman, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, performing the non-exclusive functions and duties of the Assistant Secretary for Enforcement and Compliance. Appendix List of Topics Discussed in the Preliminary Decision Memorandum I. Summary II. Background III. Scope of the Order IV. Subsidies Valuation V. Benchmarks and Interest Rates VI. Application of the CVD Law to Imports from China VII. Use of Facts Otherwise Available and Adverse Inferences VIII. Analysis of Programs IX. Disclosure and Public Comment X. Conclusion
    [FR Doc. 2018-05709 Filed 3-20-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XG090 Waiver of Requirements Under Sections 101(a) and 102(a) of the Marine Mammal Protection Act (MMPA) for the Mid-Barataria Sediment Diversion, the Mid-Breton Sound Sediment Diversion, and Calcasieu Ship Channel Salinity Control Measures Projects AGENCY:

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

    ACTION:

    Notice; issuance of a waiver.

    SUMMARY:

    On February 9, 2018, Congress passed the Bipartisan Budget Act of 2018 (Budget Act), which included a requirement that the Secretary of Commerce, as delegated to the Assistant Administrator of the National Marine Fisheries Service (NMFS), issue a waiver of the Marine Mammal Protection Act (MMPA) moratorium and prohibitions for the Mid-Barataria Sediment Diversion, Mid-Breton Sound Sediment Diversion, and the Calcasieu Ship Channel Salinity Control Measures projects, as selected in the Louisiana Comprehensive Master Plan for a Sustainable Coast. NMFS has issued the waiver.

    DATES:

    The waiver was issued on March 15, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Jolie Harrison, Office of Protected Resources, NMFS, (301) 427-8401. The waiver and supporting documents may be obtained online at https://www.fisheries.noaa.gov/action/marine-mammal-protection-act-waiver-select-louisiana-coastal-master-plan-projects. In case of problems accessing these documents, please call the contact listed above.

    SUPPLEMENTARY INFORMATION:

    Background

    Section 101(a) of the MMPA (16 U.S.C. 1361 et seq.) establishes a moratorium on the taking and importation of marine mammals, along with exceptions to the moratorium. Section 102(a) of the MMPA prohibits, among other things, the taking of marine mammals and includes further exceptions to the prohibitions in certain circumstances. The MMPA defines the term “take” to mean to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal. Section 101(a)(3)(A) allows the Secretary of Commerce, as delegated to NMFS, to waive the requirements of section 101 and allow the taking of marine mammals under sections 101(a) and 102(a), provided consultation with the Marine Mammal Commission occurs and certain determinations are made.

    On February 9, 2018, the Budget Act (Pub. L. 115-123) was enacted by Congress. Section 20201 in title II of the Budget Act directs the Secretary of Commerce to, within 120 days of enactment, issue a waiver pursuant to section 20201 and section 101(a)(3) of the MMPA for three projects included in the 2017 Louisiana Comprehensive Master Plan for a Sustainable Coast. Specifically, in Congress' recognition of their consistency with the findings and policy declarations in section 2(6) of the MMPA, the Budget Act directs the Secretary to issue a waiver for the Mid-Barataria Sediment Diversion, the Mid-Breton Sound Sediment Diversion, and the Calcasieu Ship Channel Salinity Control Measures projects from the requirements of sections 101(a) and 102(a) of the MMPA for the duration of the construction, operation, and maintenance of the projects. The Budget Act further indicates that no rulemaking, permit, determination, or other condition or limitation shall be required when issuing the waiver. Although section 101(a)(3)(A) of the MMPA requires the agency to make certain findings and determinations and follow certain procedures when issuing a waiver, Congress removed NMFS's discretion under section 101(a)(3)(A) to make those findings and determinations and to follow those procedures to determine whether waiver of the take moratorium is warranted.

    Section 20201 of the Budget Act further indicates that, upon the issuance of the waiver, the State of Louisiana (State) shall, in consultation with the Secretary of Commerce: (1) To the extent practicable and consistent with the purposes of the projects, minimize impacts on marine mammal species and population stocks, and (2) Monitor and evaluate the impacts of the projects on such species and population stocks.

    Description of the Action

    On March 15, 2018, NMFS issued the waiver from the requirements of the MMPA section 101(a) moratorium and section 102 prohibitions for take caused by the Mid-Barataria Sediment Diversion, Mid-Breton Sound Sediment Diversion and Calcasieu Ship Channel Salinity Control Measures projects, as identified in the 2017 Louisiana Comprehensive Master Plan for a Sustainable Coast, as required by the Budget Act. The waiver applies to take caused by construction, operation, and maintenance and remains in effect for the duration of these activities for the three projects. Take that is not caused by the construction, operation, and maintenance of the projects is not covered by the waiver.

    Prior to issuing the waiver, NMFS consulted with the Marine Mammal Commission (Commission) on issuance of the waiver, as required under section 101(a)(3)(A) of the MMPA. On March 12, 2018, the Commission provided the following comments and recommendations (the Commission's letter can be found at https://www.fisheries.noaa.gov/action/marine-mammal-protection-act-waiver-select-louisiana-coastal-master-plan-projects).

    Comments and Responses

    Comment 1: The Commission notes Section 20201 of the Budget Act includes a finding that the three identified projects are consistent with the findings and policy declarations in section 2(6) of the MMPA. They note, however, that it is unclear if the projects are consistent with other stated purposes and policies of the MMPA, including maintaining marine mammal species and stocks at optimum sustainable population levels and ensuring that species and stocks do not diminish to the point where they cease to be significant functioning elements in the ecosystems of which they are a part.

    NMFS Response: NMFS has no comment regarding Congress' interpretation of the consistency of these projects with different sections of the MMPA.

    Comment 2: The Commission recommends that the waiver indicate waiver recipients.

    NMFS Response: Congress did not identify specific recipients who should be covered by the waiver. Rather, Congress directed that the waiver should cover all persons (as defined under the MMPA) who will engage in the activities of constructing, operating, and maintaining the three named diversion projects. Therefore, unlike issuance of a typical permit, authorization, or waiver under the MMPA, this waiver applies to any individual or entity that causes the take of marine mammals during construction, operation, or maintenance of the three projects. In fact, it would not be possible for NMFS to identify all individuals and entities who will engage in these activities, especially for projects in the early planning stages or for long-term maintenance.

    Comment 3: The Commission recommends that NMFS seek agreement with the State or otherwise clarify that the requirements of section 20201(b) are ongoing responsibilities with consultations between the State and NMFS continuing as needed throughout all construction, operations, and maintenance activities.

    NMFS Response: NMFS agrees consultation regarding impact minimization, monitoring, and evaluation should be ongoing as each project develops through design and engineering, construction, operation, and maintenance phases. It is ultimately the State's responsibility to engage in consultation with NMFS and, upon doing so, NMFS will work with the State to develop clear consultation expectations in accordance with the intent of the Budget Act. NMFS anticipates the State will utilize existing environmental review processes (e.g., National Environmental Policy Act (NEPA)), where available, to both begin consultation and develop an approach for ongoing consultation through the various phases for each project.

    Comment 4: The Commission recommends that consultations between NMFS and the State begin immediately to review ongoing monitoring programs and update and expand them, as necessary, to ensure that essential baseline information is available before construction begins. Further, the Commission encourages NMFS to seek the advice of appropriate outside experts in helping to design effective monitoring programs.

    NMFS Response: For the Mid-Barataria Sediment Diversion, NMFS is a cooperating agency on the project's Environmental Impact Statement (EIS) under NEPA and a member of the Louisiana Trustees. Through these roles, NMFS has been and will continue to evaluate impacts of the project on marine mammals and continue to work with the State on marine mammal monitoring. For example, NMFS, in cooperation with the State's Coastal Protection and Restoration Authority (CPRA), has developed a marine mammal science plan which includes the collection of baseline data on Barataria Bay dolphins through tagging, health assessments, and modeling. This plan was developed with internal and external marine mammal experts, as recommended by the Commission, who led efforts to collect data on Barataria Bay dolphins after the Deepwater Horizon oil spill (e.g., Smith et al., 2017, Well et al., 2017). Phase I of the science plan is partially complete and NMFS is in discussion with the CPRA on funding for Phase II. For all projects, NMFS intends to continue working with external marine mammal experts to inform development and implementation of a comprehensive marine mammal monitoring plan as part of the State's consultation requirement.

    Minimizing and Monitoring Impacts on Marine Mammals

    As described above, the Budget Act requires the State, in consultation with the Secretary, to minimize, monitor, and evaluate impacts on marine mammals from the projects included in the waiver. We note here, as recommended by the Commission (see above), that by necessity the consultation will need to be ongoing to appropriately address the evolving project planning and design for the construction, operation, and maintenance phases of these three projects.

    Currently, for the Mid-Barataria Sediment Diversion, the State and the U.S. Army Corps of Engineers are coordinating closely with NMFS to ensure compliance under multiple statutes other than the MMPA (e.g., NEPA and the Clean Water Act), and further coordinating in consideration of the Mid-Barataria Sediment Diversion pursuant to the Deepwater Horizon restoration planning efforts. These statutes and processes include various requirements to assess, minimize, and/or monitor impacts to different resources, including marine mammals. While the State has coordinated most closely with NMFS on the Mid-Barataria Sediment Diversion to date, it is likely the other two projects covered under the waiver will be similarly coordinated with NMFS to some degree due to the NEPA processes and permitting requirements under other Federal statutes. We believe that in many cases other statutes and processes will provide the State efficient frameworks within which to conduct the required consultation with NMFS, and we will support the State in integrating Budget Act compliance into these processes, discussions, and timelines, as needed. Regardless, NMFS is prepared to support the State in identifying and developing practicable measures to minimize and monitor impacts of the covered projects on marine mammals.

    Authority:

    16 U.S.C. 1361 et seq.

    Dated: March 15, 2018. Samuel D. Rauch, III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.
    [FR Doc. 2018-05652 Filed 3-20-18; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XE201 Notice of Availability of the Deepwater Horizon Oil Spill Louisiana Trustee Implementation Group Final Strategic Restoration Plan and Environmental Assessment #3 AGENCY:

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

    ACTION:

    Notice of availability.

    SUMMARY:

    In accordance with the Oil Pollution Act of 1990 (OPA), the National Environmental Policy Act (NEPA), and a Consent Decree with BP Exploration & Production Inc. (BP), the Deepwater Horizon Federal and State natural resource trustee agencies for the Louisiana Trustee Implementation Group (LA TIG) have prepared the Final Strategic Restoration Plan and Environmental Assessment #3: Restoration of Wetlands, Coastal, and Nearshore Habitats in the Barataria Basin, Louisiana (SRP/EA). The Final SRP/EA identifies and, in conjunction with the associated Finding of No Significant Impact (FONSI), selects a restoration strategy that will help prioritize future decisions regarding project selection and funding. Rather than selecting specific projects for construction, the Trustees evaluated a suite of restoration techniques and approaches, for example large-scale diversions or marsh creation, to determine how to best support restoring ecosystem-level injuries in the Gulf of Mexico through restoration in the Barataria Basin. This strategic approach to restoration will allow the Trustees to prioritize projects for further evaluation by the LA TIG. The purpose of this notice is to inform the public of the availability of the Final SRP/EA and FONSI.

    ADDRESSES:

    Obtaining Documents: You may download the Final SRP/EA and FONSI at: http://www.gulfspillrestoration.noaa.gov and http://www.la-dwh.com. Alternatively, you may request a CD of the Final SRP/EA and FONSI (see FOR FURTHER INFORMATION CONTACT). In addition, you may view the document at any of the public facilities listed at http://www.gulfspillrestoration.noaa.gov.

    FOR FURTHER INFORMATION CONTACT:

    • National Oceanic and Atmospheric Administration—Mel Landry, [email protected], (301) 427-8711.

    • Louisiana—Joann Hicks, [email protected], (225) 342-7308.

    SUPPLEMENTARY INFORMATION: Introduction

    On April 20, 2010, the mobile offshore drilling unit Deepwater Horizon, which was being used to drill a well for BP in the Macondo prospect (Mississippi Canyon 252-MC252), exploded, caught fire, and subsequently sank in the Gulf of Mexico, resulting in an unprecedented volume of oil and other discharges from the rig and from the wellhead on the seabed. The Deepwater Horizon oil spill is the largest maritime oil spill in United States history, discharging millions of barrels of oil over a period of 87 days. In addition, well over one million gallons of dispersants were applied to the waters of the spill area in an attempt to disperse the spilled oil. An undetermined amount of natural gas also was released to the environment as a result of the spill.

    The Deepwater Horizon Federal and State natural resource trustees (DWH Trustees) conducted the NRDA for the Deepwater Horizon oil spill under the Oil Pollution Act of 1990 (OPA; 33 U.S.C. 2701 et seq.). Pursuant to OPA, Federal and State agencies act as trustees on behalf of the public to assess natural resource injuries and losses and to determine the actions required to compensate the public for those injuries and losses. OPA further instructs the designated trustees to develop and implement a plan for the restoration, rehabilitation, replacement, or acquisition of the equivalent of the injured natural resources under their trusteeship, including the loss of use and services from those resources from the time of injury until the time of restoration to baseline (the resource quality and conditions that would exist if the spill had not occurred) is complete.

    The DWH Trustees are:

    • U.S. Department of the Interior, as represented by the National Park Service, U.S. Fish and Wildlife Service, and Bureau of Land Management;

    • National Oceanic and Atmospheric Administration, on behalf of the U.S. Department of Commerce;

    • U.S. Department of Agriculture;

    • U.S. Environmental Protection Agency;

    • State of Louisiana Coastal Protection and Restoration Authority, Oil Spill Coordinator's Office, Department of Environmental Quality, Department of Wildlife and Fisheries, and Department of Natural Resources;

    • State of Mississippi Department of Environmental Quality;

    • State of Alabama Department of Conservation and Natural Resources and Geological Survey of Alabama;

    • State of Florida Department of Environmental Protection and Fish and Wildlife Conservation Commission; and

    • For the State of Texas, Texas Parks and Wildlife Department, Texas General Land Office, and Texas Commission on Environmental Quality.

    On April 4, 2016, the DWH Trustees reached and finalized a settlement of their natural resource damages claims with BP in a Consent Decree approved by the U.S. District Court for the Eastern District of Louisiana. Pursuant to that Consent Decree, restoration projects in the Louisiana Restoration Area are now chosen and managed by the LA TIG. The LA TIG is comprised of the following DWH Trustees:

    • State of Louisiana Coastal Protection and Restoration Authority (CPRA);

    • Louisiana Oil Spill Coordinator's Office (LOSCO);

    • Louisiana Department of Environmental Quality (LDEQ);

    • Louisiana Department of Wildlife and Fisheries (LDWF);

    • Louisiana Department of Natural Resources (LDNR);

    • U.S. Department of the Interior, as represented by National Park Service, U.S. Fish and Wildlife Service, and Bureau of Land Management;

    • National Oceanic and Atmospheric Administration, on behalf of the U.S. Department of Commerce;

    • U.S. Department of Agriculture; and

    • U.S. Environmental Protection Agency.

    This restoration planning activity is proceeding in accordance with the PDARP/PEIS. Information on the Restoration Type considered in the Final SRP/EA, as well as the OPA criteria against which alternatives were evaluated, can be viewed in the PDARP/PEIS (http://www.gulfspillrestoration.noaa.gov/restoration-planning/gulf-plan) and in the Overview of the PDARP/PEIS (http://www.gulfspillrestoration.noaa.gov/restoration-planning/gulf-plan).

    Background

    On March 29, 2017, the LA TIG solicited project ideas to sustainably create, restore, and enhance coastal wetlands, and restore or preserve Mississippi River processes (http://www.gulfspillrestoration.noaa.gov/2017/03/request-restoration-project-ideas-louisiana). From that input and review of other Louisiana restoration planning efforts, including Louisiana's Coastal Master Plan and Deepwater Horizon restoration planning efforts, the LA TIG published a notice of intent on April 28, 2017 announcing its initiation of strategic restoration planning through two phases (82 FR 19659). The first phase would prepare a strategic restoration plan for Louisiana's Barataria Basin. The Deepwater Horizon spill created an ecosystem-level injury to the Gulf of Mexico, which included accelerated loss of critical wetlands, coastal, and nearshore habitats as well as injuries across all trophic levels in the Gulf of Mexico. The most severe losses to coastal marshes, which represent the foundation of the Gulf of Mexico ecosystem, were focused on the Barataria Basin. As described in the April 28, 2017 notice, the LA TIG prepared a Draft SRP/EA which focused on wetlands, coastal, and nearshore habitat restoration type projects in the Barataria Basin restoration area. This geographic focus is appropriate as the PDARP/PEIS found that the Barataria Basin experienced some of the heaviest and most persistent oiling from the DWH spill and because the Basin supports very high primary and secondary production that contributes to the overall health of the northern Gulf of Mexico ecosystem.

    A Notice of Availability of the Deepwater Horizon Oil Spill Louisiana Trustee Implementation Group Draft Strategic Restoration Plan and Environmental Assessment #3: Restoration of Wetlands, Coastal and Nearshore Habitats in the Barataria Basin, Louisiana (Draft SRP/EA) was published in the Federal Register on December 20, 2017. The Draft SRP/EA proposed four strategic alternatives consistent with the Restoration Types selected in the PDARP/PEIS. The LA TIG evaluated these alternatives under criteria set forth in the OPA regulations, and evaluated the environmental consequences of the restoration alternatives in accordance with NEPA. The LA TIG provided the public with 45 days to review and provide comment on the Draft SRP/EA. During the public review period, which ended on February 5, 2018, the LA TIG held a public meeting in New Orleans on January 24, 2018. The LA TIG considered the public comments received, which informed the LA TIG's analyses and selection of the preferred alternative in the Final SRP/EA. A summary of the public comments received and the Trustees' responses to those comments are addressed in Chapter 7 of the Final SRP/EA.

    Overview of the Final SRP/EA

    The Final SRP/EA is being released in accordance with OPA, the OPA regulations in the Code of Federal Regulations (CFR) at 15 CFR part 990, and NEPA (42 U.S.C. 4321 et seq.).

    The LA TIG focused the SRP/EA on two restoration approaches in the wetlands, coastal and nearshore habitat type described in the PDARP/PEIS: creating, restoring and enhancing coastal wetlands; and restoring and preserving Mississippi-Atchafalaya River processes. Within the two restoration approaches, the PDARP/PEIS identifies a series of potential restoration techniques. These techniques, spanning both restoration approaches, are as follows (PDARP/PEIS, Appendix 5.D):

    • Create or enhance coastal wetlands through placement of dredged material;

    • Backfill canals;

    • Restore hydrologic connections to enhance coastal habitats;

    • Construct breakwaters; and

    • Controlled river diversions.

    Four project types, consistent with the restoration approaches in the PDARP/PEIS, are carried forward for additional consideration in the SRP/EA:

    • Sediment diversion projects;

    • Large-scale marsh creation projects;

    • Ridge restoration projects; and

    • Breakwater construction projects (also referred to as shoreline protection projects).

    After reviewing the restoration approaches and techniques, the LA TIG identified 13 example projects from public submissions in response to the Notice of Solicitation and from the 2017 Coastal Master Plan. The LA TIG then combined restoration techniques into four strategic restoration alternatives. With the exception of the natural recovery/no action alternative, each of these alternatives meets the Final SRP/EA's purpose and need “to restore the ecosystem level injuries in Barataria Basin and to restore, rehabilitate, replace, or acquire the equivalent of the injured wetlands, coastal, and nearshore habitat resources and services and compensate for interim losses of those resources from the DWH oil spill.” The four strategic restoration alternatives are as follows:

    • Alternative 1: Marsh creation, ridge restoration, and large-scale sediment diversion;

    • Alternative 2: Marsh creation, ridge restoration, and shoreline protection;

    • Alternative 3: Marsh creation and ridge restoration; and

    • Alternative 4: Natural recovery/no action.

    In the Final SRP/EA, the LA TIG identifies two decisions to restore ecosystem-level injuries in the Gulf of Mexico through restoration of critical wetlands, coastal, and nearshore habitat resources and services in the Barataria Basin. First, the LA TIG selects a preferred alternative that relies on a suite of restoration approaches and techniques in the Barataria Basin, including large-scale sediment diversions to restore deltaic processes, marsh creation, and ridge restoration. Second, the LA TIG selects to advance several projects forward for further evaluation and planning: The Mid-Barataria Sediment Diversion and one marsh creation increment within Large Scale Marsh Creation: Component E in northern Barataria Basin. The LA TIG also confirms its 2017 decision to move the Spanish Pass Increment of the Barataria Basin Ridge and Marsh Creation project forward for further evaluation and planning. The trustees are not proposing these projects for construction funding at this time. Rather, the trustees will continue to consider the selected projects in future Phase II restoration plans including further OPA and NEPA evaluation.

    The LA TIG evaluated strategic restoration alternatives under criteria set forth in the OPA regulations. The strategic restoration alternatives are consistent with the restoration alternatives selected in the Deepwater Horizon Oil Spill: Final Programmatic Damage Assessment and Restoration Plan/Programmatic Environmental Impact Statement (PDARP/PEIS).

    NEPA requires federal agencies to consider the potential environmental impacts of planned actions. NEPA provides a mandate and framework for federal agencies to determine if their proposed actions have significant environmental effects and related social and economic effects, consider these effects when choosing between alternative approaches, and inform and involve the public in the environmental analysis and decision-making process. The LA TIG exercised its discretion pursuant to NEPA (40 CFR 1501.3(b)) to integrate an EA with this SRP in order to assist with restoration planning efforts and to further the purposes of NEPA. This SRP/EA tiers from the PDARP/PEIS and incorporates by reference the NEPA environmental consequences analysis found in Chapter 6 of the PDARP/PEIS (40 CFR 1502.20; 1502.21). The LA TIG has found, based on its evaluation in the EA portion of this SRP/EA that: (1) The PDARP/PEIS included a thorough evaluation of the potential range of environmental effects that could result from the various restoration approaches and techniques analyzed in the PDARP/PEIS; (2) the analysis of the environmental consequences of those approaches and techniques in the PDARP/PEIS remains valid; (3) the effects of the restoration approaches and techniques, including the project selected for further planning and environmental review, evaluated in this SRP/EA are within the range of impacts evaluated in the PDARP/PEIS; and (4) any new information regarding the environmental consequences of the restoration approaches and techniques, including the projects selected for further planning and environmental review, evaluated within this SRP/EA are within the range of and consistent with the environmental impacts identified and analyzed within the PDARP/PEIS. The Federal Trustees of the LA TIG have determined that implementation of the Final SRP/EA is not a major Federal Action significantly affecting the quality of the human environment within the context of NEPA. They have concluded a FONSI is appropriate, and, therefore, an Environmental Impact Statement will not be prepared for this action.

    Administrative Record

    The documents comprising the Administrative Record for the Draft SRP/EA can be viewed electronically at http://www.doi.gov/deepwaterhorizon/adminrecord.

    Authority

    The authority for this action is OPA (33 U.S.C. 2701 et seq.), the OPA NRDA regulations at 15 CFR part 990, and NEPA (42 U.S.C. 4321 et seq.).

    Dated: March 15, 2018. Carrie Selberg, Deputy Director, Office of Habitat Conservation, National Marine Fisheries Service.
    [FR Doc. 2018-05691 Filed 3-20-18; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XG068 Fisheries of the South Atlantic; Southeast Data, Assessment, and Review (SEDAR); Stock ID Workshop for Cobia (Rachycentron canadum) AGENCY:

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

    ACTION:

    Notice of SEDAR 58 Stock Identification (ID) Workshop for Cobia.

    SUMMARY:

    The SEDAR 58 Cobia Stock ID Process will be a multi-step process consisting of a series of workshops and webinars: Stock ID Workshop; Stock ID Review Workshop; Joint Cooperator Technical Review; and a Science and Management Leadership Call. See SUPPLEMENTARY INFORMATION.

    DATES:

    The SEDAR 58 Stock ID Workshop will be held on April 10-11, 2018, from 8:30 a.m. until 6 p.m.; and April 12, 2018, from 8:30 a.m. until 1 p.m. The established times may be adjusted as necessary to accommodate the timely completion of discussion relevant to the Stock ID process. Such adjustments may result in the meeting being extended from, or completed prior to the time established by this notice. Additional SEDAR 58 Stock ID Process workshops and webinar dates and times will publish in a subsequent issue in the Federal Register.

    ADDRESSES:

    Meeting address: The SEDAR 58 Stock ID Workshop will be held at the Town and Country Inn, 2008 Savannah Highway, Charleston, SC 29407l; phone: (843) 571-1000.

    SEDAR address: South Atlantic Fishery Management Council, 4055 Faber Place Drive, Suite 201, N Charleston, SC 29405; www.sedarweb.org.

    FOR FURTHER INFORMATION CONTACT:

    Julia Byrd, SEDAR Coordinator, 4055 Faber Place Drive, Suite 201, North Charleston, SC 29405; phone: (843) 571-4366; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    The Gulf of Mexico, South Atlantic, and Caribbean Fishery Management Councils, in conjunction with NOAA Fisheries and the Atlantic and Gulf States Marine Fisheries Commissions, have implemented the Southeast Data, Assessment and Review (SEDAR) process, a multi-step method for determining the status of fish stocks in the Southeast Region. SEDAR is a three-step process including: (1) Data Workshop; (2) Assessment Process utilizing a workshop and/or webinars; and (3) Review Workshop. Cobia Stock ID will be resolved prior to the start of the SEDAR 58 Data Workshop using the multi-step Stock ID Process. The product of the Data Workshop is a data report which compiles and evaluates potential datasets and recommends which datasets are appropriate for assessment analyses. The product of the Assessment Process is a stock assessment report which describes the fisheries, evaluates the status of the stock, estimates biological benchmarks, projects future population conditions, and recommends research and monitoring needs. The assessment is independently peer reviewed at the Review Workshop. The product of the Review Workshop is a Summary documenting panel opinions regarding the strengths and weaknesses of the stock assessment and input data. Participants for SEDAR Workshops are appointed by the Gulf of Mexico, South Atlantic, and Caribbean Fishery Management Councils and NOAA Fisheries Southeast Regional Office, Highly Migratory Species Management Division, and Southeast Fisheries Science Center. Participants include: Data collectors and database managers; stock assessment scientists, biologists, and researchers; constituency representatives including fishermen, environmentalists, and non-governmental organizations (NGOs); international experts; and staff of Councils, Commissions, and state and federal agencies.

    The items of discussion at the Stock ID Workshop are as follows:

    1. Review information including genetic studies, growth patterns, movement and migration, existing stock definitions, otolith chemistry, oceanographic and habitat characteristics, prior SEDAR stock ID recommendations and any other relevant information on stock structure.

    2. Make recommendations on biological stock structure and the assessment unit stock or stocks to be addressed through SEDAR 58 and document the rationale behind the recommendations.

    3. Discuss the strength of evidence in support of stock ID recommendations with particular attention on those that result in a mismatch of biological stock structure, assessment unit stock recommendations, and existing management unit boundaries.

    4. If biological stock structure recommendations, assessment stock unit recommendations, and existing management units (state and federal) do not align, provide guidance to address the relative risks (biological and management) and consequences of managing based on existing Council or prior assessment boundaries.

    5. Provide recommendations for future research on stock structure.

    6. Prepare a report providing complete documentation of workshop recommendations and decisions.

    Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the intent to take final action to address the emergency.

    Special Accommodations

    This meeting is accessible to people with disabilities. Requests for auxiliary aids should be directed to the SAFMC office (see ADDRESSES) at least 10 business days prior to the meeting.

    Note:

    The times and sequence specified in this agenda are subject to change.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: March 16, 2018. Tracey L. Thompson, Acting Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2018-05716 Filed 3-20-18; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XG101 New England Fishery Management Council; Public Meeting AGENCY:

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

    ACTION:

    Notice; public meeting.

    SUMMARY:

    The New England Fishery Management Council (Council) is scheduling a public meeting of its Habitat Advisory Panel to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Recommendations from this group will be brought to the full Council for formal consideration and action, if appropriate.

    DATES:

    This meeting will be held on Tuesday, April 3, 2018 at 9:30 a.m.

    ADDRESSES:

    The meeting will be held at the Holiday Inn, 31 Hampshire Street, Mansfield, MA 02048; telephone: (508) 339-2200.

    Council address: New England Fishery Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950.

    FOR FURTHER INFORMATION CONTACT:

    Thomas A. Nies, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.

    SUPPLEMENTARY INFORMATION: Agenda

    The Advisory Panel will review information developed by the Plan Development Team (PDT) to support the Clam Dredge Framework Adjustment, which is considering continued hydraulic dredge exemptions in the Great South Channel Habitat Management Area. They will also discuss any clam dredge exemption alternatives recommended by the PDT; suggest additional alternatives for Committee consideration. The panel will discuss other habitat-related initiatives as needed, this would include engagement in offshore energy issues; particularly any BOEM actions open for public comment at the time of the meeting. Other business may be discussed as necessary.

    Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency.

    Special Accommodations

    This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Thomas A. Nies, Executive Director, at (978) 465-0492, at least 5 days prior to the meeting date. Consistent with 16 U.S.C. 1852, a copy of the recording is available upon request.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: March 16, 2018. Tracey L. Thompson, Acting Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2018-05718 Filed 3-20-18; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XG102 Gulf of Mexico Fishery Management Council; Public Meeting AGENCY:

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

    ACTION:

    Notice of a public meeting.

    SUMMARY:

    The Gulf of Mexico Fishery Management Council will hold a one-day meeting of its Ad Hoc Red Snapper & Grouper-Tilefish Individual Fishing Quota (IFQ) Advisory Panel.

    DATES:

    The meeting will convene on Tuesday, April 10, 2018, from 8:30 a.m. to 5 p.m. EDT.

    ADDRESSES:

    The meeting will take place at the Gulf of Mexico Fishery Management Council office, 2203 N. Lois Avenue, Suite 1100, Tampa, FL 33607; telephone: (813) 348-1630.

    FOR FURTHER INFORMATION CONTACT:

    Dr. Ava Lasseter, Anthropologist, Gulf of Mexico Fishery Management Council; [email protected], telephone: (813) 348-1630.

    SUPPLEMENTARY INFORMATION:

    Tuesday, April 10, 2018; 8:30 a.m.-5 p.m., EDT:

    Charge Ad Hoc Red Snapper & Grouper-Tilefish IFQ AP: To assess the Grouper-Tilefish IFQ Program 5-year Review and Amendment 36B and provide recommendations to the Council relative to changes in the IFQ programs.

    I. Welcome and Introductions II. Adoption of Agenda III. Election of Chair and Vice-Chair IV. Council's charge to the panel and scope of work V. Recommendations and Conclusions of the Grouper-Tilefish 5-year Review VI. Reef Fish Amendments 36A & 36B: Modifications to Commercial IFQ Programs VII. Other Business - Meeting Adjourns

    You may register for Ad Hoc Red Snapper & Grouper-Tilefish IFQ Advisory Panel meeting on Tuesday, April 10, 2018 at: https://attendee.gotowebinar.com/register/6202357575656933889.

    The Agenda is subject to change, and the latest version along with other meeting materials will be posted on the Council's file server. To access the file server, the URL is https://public.gulfcouncil.org:5001/webman/index.cgi, or go to the Council's website and click on the FTP link in the lower left of the Council website (http://www.gulfcouncil.org). The username and password are both “gulfguest”. Click on the “Library Folder”, then scroll down to “AP Meeting_Ad Hoc Red Snapper & Grouper-Tilefish IFQ_04-10-18”.

    The meeting will be webcast over the internet. A link to the webcast will be available on the Council's website, http://www.gulfcouncil.org.

    Although other non-emergency issues not on the agenda may come before the Advisory Panel for discussion, in accordance with the Magnuson-Stevens Fishery Conservation and Management Act, those issues may not be the subject of formal action during this meeting. Actions of the Advisory Panel will be restricted to those issues specifically identified in the agenda and any issues arising after publication of this notice that require emergency action under Section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Council's intent to take action to address the emergency.

    Special Accommodations

    This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Kathy Pereira at the Gulf Council Office (see ADDRESSES), at least 5 working days prior to the meeting.

    Dated: March 16, 2018. Tracey L. Thompson, Acting Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2018-05719 Filed 3-20-18; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE United States Patent and Trademark Office Submission for OMB Review; Comment Request; “National Summer Teacher Institute

    The United States Patent and Trademark Office (USTPO) will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).

    Agency: United States Patent and Trademark Office, Commerce.

    Title: National Summer Teacher Institute.

    OMB Control Number: 0651-0077.

    Form Number(s):

    • NSTI 1 • NSTI 2 • NSTI 3

    Type of Request: Regular.

    Number of Respondents: 900 per year.

    Average Hours per Response: The USPTO estimates that it will take the public approximately 5 minutes (0.08 hours) to 30 minutes (0.5 hours) to prepare and submit the appropriate forms to the USPTO, depending upon the instrument used.

    Burden Hours: 291.67 hours annually.

    Cost Burden: $0.

    Needs and Uses: The information gathered in this collection relates to applications for the “National Summer Teacher Institute,” a summer teaching workshop sponsored by the USPTO. The program application requires interested individuals to certify that they are educators with at least 3 years' experience; to identify STEM-related fields they have taught in the last year; to identify STEM-related fields they plan to teach in the upcoming year; and to acknowledge their commitment to incorporate the learnings from the National Summer Teacher Institute into their curriculum, where applicable, and cooperate with sharing lessons and outcomes with teachers and USPTO.

    The USPTO may host various webinars in conjunction with the National Summer Teacher Institute. USPTO plans to conduct surveys of both the Institute and the webinars in order to gain useful feedback from program participants.

    Affected Public: Businesses or other for-profits; not-for-profit institutions.

    Frequency: Annually.

    Respondent's Obligation: Required to Obtain or Retain Benefits.

    OMB Desk Officer: Nicholas A. Fraser, email: [email protected]

    Once submitted, the request will be publicly available in electronic format through reginfo.gov. Follow the instructions to view Department of Commerce collections currently under review by OMB.

    Further information can be obtained by:

    Email: [email protected] Include “0651-0077 copy request” in the subject line of the message.

    Mail: Marcie Lovett, Records and Information Governance Division Director, Office of the Chief Technology Officer, United States Patent and Trademark Office, P.O. Box 1450, Alexandria, VA 22313-1450.

    Written comments and recommendations for the proposed information collection should be sent on or before April 20, 2018 to Nicholas A. Fraser, OMB Desk Officer, via email to [email protected], or by fax to 202-395-5167, marked to the attention of Nicholas A. Fraser.

    Marcie Lovett, Records and Information Governance Division Director, OCTO, United States Patent and Trademark Office.
    [FR Doc. 2018-05633 Filed 3-20-18; 8:45 am] BILLING CODE 3510-16-P
    DEPARTMENT OF DEFENSE Department of the Air Force Air University Board of Visitors Meeting AGENCY:

    Air University Board of Visitors, Department of Air Force, Department of Defense.

    ACTION:

    Notice of meeting amendment.

    SUMMARY:

    This notice replaces the originally submitted meeting notice of March 1, 2018. The purpose of this meeting is to provide independent advice and recommendations on matters pertaining to the educational, doctrinal, and research policies and activities of Air University.

    DATES:

    The meeting will take place on Monday, 16 April 2018, from 8:00 a.m. to approximately 5 p.m. and Tuesday, 17 April 2018, from 7:30 a.m. to approximately 3:00 p.m. Central Standard Time.

    ADDRESSES:

    The meeting will be held in the Air University Commander's Conference Room located in Building 800 at Maxwell Air Force Base, AL.

    FOR FURTHER INFORMATION CONTACT:

    Dr. Shawn O'Mailia, Designated Federal Officer, Air University Headquarters, 55 LeMay Plaza South, Maxwell Air Force Base, Alabama 36112-6335, telephone (334) 953-4547.

    SUPPLEMENTARY INFORMATION:

    Under the provisions of the Federal Advisory Committee Act of 1972 (5 U.S.C., Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102-3.150, the Department of Defense announces that the Air University Board of Visitors' spring meeting. The agenda will include topics relating to the policies, programs, and initiatives of Air University educational programs and will include an out brief from the Air Force Institute of Technology and Community College of the Air Force Subcommittees.

    Pursuant to 5 U.S.C. 552b, as amended, and 41 CFR 102-3.155 all sessions of the Air University Board of Visitors' meetings' will be open to the public. Any member of the public wishing to provide input to the Air University Board of Visitors' should submit a written statement in accordance with 41 CFR 102-3.140(c) and section 10(a)(3) of the Federal Advisory Committee Act and the procedures described in this paragraph. Written statements can be submitted to the Designated Federal Officer at the address detailed below at any time.

    Statements being submitted in response to the agenda mentioned in this notice must be received by the Designated Federal Officer at the address listed below at least ten calendar days prior to the meeting which is the subject of this notice. Written statements received after this date may not be provided to or considered by the Air University Board of Visitors until its next meeting. The Designated Federal Officer will review all timely submissions with the Air University Board of Visitors' Board Chairperson and ensure they are provided to members of the Board before the meeting that is the subject of this notice. Any member of the public wishing to attend this meeting should contact the Designated Federal Officer listed below at least ten calendar days prior to the meeting for information on base entry procedures.

    Henry Williams, Acting Air Force Federal Register Liaison Officer.
    [FR Doc. 2018-05723 Filed 3-20-18; 8:45 am] BILLING CODE 5001-10-P
    DEPARTMENT OF DEFENSE Office of the Secretary [Docket ID DOD-2018-OS-0012] Privacy Act of 1974; System of Records AGENCY:

    Office of the Secretary of Defense, DoD.

    ACTION:

    Notice of a modified system of records.

    SUMMARY:

    The Office of the Secretary of Defense proposes to modify a system of records, DUSDI 01-DoD, entitled the “Department of Defense (DoD) Insider Threat Management and Analysis Center (DITMAC) and DoD Component Insider Threat Records System.” This system enables DoD to implement the requirements of an Executive Order published on October 7, 2011, and the National Insider Threat Policy and Minimum Standards for Executive Branch Insider Threat Programs published on November 21, 2012. The system is used to analyze, monitor, and audit insider threat information for insider threat detection and mitigation within DoD on threats that insiders may pose to DoD and U.S. Government installations, facilities, personnel, missions, or resources. The system supports the DITMAC and DoD Component insider threat programs, enables the identification of systemic insider threat issues and challenges, provides a basis for the development and recommendation of solutions to mitigate potential insider threats, and assists in identifying best practices amongst other Federal Government insider threat programs.

    DATES:

    Comments will be accepted on or before April 20, 2018. This proposed action will be effective the date following the end of the comment period unless comments are received which result in a contrary determination.

    ADDRESSES:

    You may submit comments, identified by docket number and title, by any of the following methods:

    * Federal Rulemaking Portal: http://www.regulations.gov.

    Follow the instructions for submitting comments.

    * Mail: Department of Defense, Office of the Chief Management Officer, Directorate for Oversight and Compliance, 4800 Mark Center Drive, Mailbox #24, Suite 08D09B, Alexandria, VA 22350-1700.

    Instructions: All submissions received must include the agency name and docket number for this Federal Register document. The general policy for comments and other submissions from members of the public is to make these submissions available for public viewing on the internet at http://www.regulations.gov as they are received without change, including any personal identifiers or contact information.

    FOR FURTHER INFORMATION CONTACT:

    Dr. Brad Millick, Director, DoD Insider Threat Program, Office of the Under Secretary of Defense for Intelligence, 5000 Defense Pentagon, Washington, DC 20301-5000 or by phone at (703) 692-3721.

    SUPPLEMENTARY INFORMATION:

    E.O. 13587 directs the implementation of a Department-wide insider threat detection and prevention program. The DoD Insider Threat Program is decentralized to enable DoD component insider threat programs and the DITMAC to analyze, monitor, and audit threat information for insider threat detection and mitigation within DoD. The Program deters insider activity that endangers DoD and U.S. Government installations, facilities, personnel, missions, or resources.

    Section 951 of the National Defense Authorization Act for Fiscal Year 2017 (NDAA for FY17) expanded the definition of an insider threat to anyone who has, or once had, authorized access to information, a facility, a network, a person, or a resource of the Department. In keeping with this expansion, the Department is taking a measured approach and expanding the ability of its Component insider threat programs and the DITMAC to store inside threat related information on those personnel with a DoD Common Access Card (CAC). This expansion strengthens the intent of E.O. 13587 and maintains a responsive posture to the NDAA for FY17.

    This modification to the system of records enables the Department to comply with E.O. 13587 by expanding the population to include personnel who have been issued an active DoD CAC to authenticate physical access to DoD installations or logical access to DoD controlled information systems.

    This revision leverages existing federal laws, statutes, authorities, policies, programs, systems, architectures and resources in order to counter the threat of those insiders who may use their authorized access to compromise or degrade the operations of the Department. The Department and its insider threat programs employ risk management principles, tailored to meet the distinct needs, mission, and systems of its agencies, and include appropriate protections for privacy, civil rights, and civil liberties. The change captures this large community of persons in a phased and reasonable manner, by enabling the DoD population to include those with CACs in addition to those who have or are granted eligibility for access to classified information or eligibility to hold a sensitive position

    The Office of the Secretary of Defense notices for systems of records subject to the Privacy Act of 1974, as amended, have been published in the Federal Register and are available from the address in FOR FURTHER INFORMATION CONTACT or at the Defense Privacy, Civil Liberties, and Transparency Division website at http://dpcld.defense.gov/.

    The proposed systems reports, as required by of the Privacy Act, as amended, were submitted on November 17, 2017, to the House Committee on Oversight and Government Reform, the Senate Committee on Homeland Security and Governmental Affairs, and the Office of Management and Budget (OMB) pursuant to Section 6 to OMB Circular No. A-108, “Federal Agency Responsibilities for Review, Reporting, and Publication under the Privacy Act,” revised December 23, 2016 (December 23, 2016, 81 FR 94424).

    Dated: March 16, 2018. Aaron Siegel, Alternate OSD Federal Register Liaison Officer, Department of Defense. SYSTEM NAME AND NUMBER

    Department of Defense (DoD) Insider Threat Management and Analysis Center (DITMAC) and DoD Component Insider Threat Records System, DUSDI 01-DoD.

    SECURITY CLASSIFICATION:

    Unclassified.

    SYSTEM LOCATION:

    Primary location: Defense Security Service (DSS), 27130 Telegraph Rd., Quantico, VA 22134-2253. Secondary and Decentralized locations: Each of the DoD Components including the Departments of the Army, Air Force, and Navy and staffs, field operating agencies, major commands, installations, and activities. Official mailing addresses are published with each Component's compilation of systems of records notices.

    SYSTEM MANAGER(S):

    Mr. Charles Washington, Program Manager, Department of Defense Insider Threat Management and Analysis Center, Defense Security Service, 27130 Telegraph Road, Quantico, VA 22134-2253, (571) 357-6850, [email protected] DoD Components including the Departments of the Army, Air Force, and Navy and staffs, field operating agencies, major commands, installations, and activities. Official mailing addresses are published as an appendix to each Service's compilation of systems of records notices.

    AUTHORITY FOR MAINTENANCE OF THE SYSTEM:

    10 U.S.C. 137, Under Secretary of Defense for Intelligence; 44 U.S.C. 3554, Federal agency responsibilities; 44 U.S.C. 3557, National security systems; Public Law 112-81, Section 922, National Defense Authorization Act for Fiscal Year 2012 (NDAA for FY12), Insider Threat Detection (10 U.S.C. 2224 note); Public Law 113-66, Section 907(c)(4)(H) (NDAA for FY14), Personnel security (10 U.S.C. 1564 note); Public Law 114-92, Section 1086 (NDAA for FY16), Reform and improvement of personnel security, insider threat detection and prevention, and physical security (10 U.S.C. 1564 note); Public Law 114-328, Section 951 (NDAA for FY17) Enhanced security programs for Department of Defense personnel and innovation initiatives (10 U.S.C. 1564 note); E.O. 12829, as amended, National Industrial Security Program; E.O. 12968, as amended, Access to Classified Information; E.O. 13467, Reforming Processes Related to Suitability for Government Employment, Fitness for Contractor Employees, and Eligibility for Access to Classified National Security Information; E.O. 9397, as amended, Numbering System for Federal Accounts Relating to Individual Persons; E.O. 13587, Structural Reforms to Improve the Security of Classified Networks and the Responsible Sharing and Safeguarding of Classified Information; National Insider Threat Policy and Minimum Standards for Executive Branch Insider Threat Programs; and DoD Directive 5205.16, The DoD Insider Threat Program; DoD Instruction 5205.83, DoD Insider Threat Management and Analysis Center (DITMAC), Directive-type Memorandum 09-012, Interim Policy Guidance for DoD Physical Access Control, as amended.

    PURPOSE(S) OF THE SYSTEM:

    The DITMAC was established by the Undersecretary of Defense for Intelligence to consolidate and analyze insider threat information reported by the DoD Component insider threat programs.

    The DoD maintains this system of records to assist in the management of the DoD Component insider threat programs and the DITMAC in accordance with E.O. 13587 and Section 951 of the FY 2017 National Defense Authorization Act (NDAA for FY17). E.O. 13587 requires Federal agencies to establish an insider threat detection and prevention program to ensure the security of classified networks and the responsible sharing and safeguarding of classified information consistent with appropriate protections for privacy and civil liberties. Section 951 of the NDAA for FY17 requires that DoD insider threat programs collect, store, and retain information from various data sources, including personnel security, physical security, information security, law enforcement, counterintelligence, user activity monitoring, information assurance, and other appropriate data sources to detect and mitigate potential insider threats.

    Insider threats can contribute damage to the United States through espionage, terrorism, unauthorized disclosure of national security information, including protected and sensitive information, or through the loss or degradation of departmental resources or capabilities. The system will be used to analyze, monitor, and audit insider threat information for insider threat detection and mitigation within DoD on threats that persons who have or had been granted eligibility for access to classified information or eligibility to hold a sensitive position and those who have been issued an active DoD Common Access Card (CAC) to obtain physical or logical access to a DoD installation or controlled information system may pose to DoD and U.S. Government installations, facilities, personnel, missions, or resources.

    The system will support DoD Component insider threat programs, enable the identification of systemic insider threat issues and challenges, provide a basis for the development and recommendation of solutions to deter, detect, and/or mitigate potential insider threats. It will assist in identifying best practices among other Federal Government insider threat programs, through the use of existing DoD resources and functions and by leveraging existing authorities, policies, programs, systems, and architectures.

    CATEGORIES OF INDIVIDUALS COVERED BY THE SYSTEM:

    The following categories of individuals are covered:

    Individuals who had or have been granted eligibility for access to classified information or eligibility to hold a sensitive position. These individuals include active and reserve component (including National Guard) military personnel; civilian employees (including non-appropriated fund employees); DoD contractor personnel, and officials or employees from Federal, state, Local, Tribal and Private Sector entities affiliated with or working with DoD who have been granted access to classified information by DoD based on an eligibility determination made by DoD or by another Federal agency authorized to do so.

    Individuals or persons embedded with DoD units operating abroad who had or have been granted eligibility for access to classified information or eligibility to hold a sensitive positions.

    Current members of the U.S. Coast Guard and mobilized retired military personnel, when activated, who had or have been granted eligibility for access to classified information or eligibility to hold a sensitive positions by DoD and when operating with the military services or DoD Components, and Limited Access Authorization grantees.

    Individuals who have been issued an active DoD CAC by a DoD Organization to authenticate physical access to DoD installations or logical access to DoD controlled information systems.

    CATEGORIES OF RECORDS IN THE SYSTEM:

    Records containing information can be derived from the DoD Components and the DITMAC, to include:

    Responses to information requested by official questionnaires and applications (e.g., SF 86 Questionnaire for National Security Positions, DD 1172-2 Application for Identification Card/DEERS Enrollment) that include: Individual's full name, former names and aliases; date and place of birth; Social Security Number (SSN); height and weight; hair and eye color; gender; ethnicity and race; biometric data; mother's maiden name; DoD identification number (DoD ID Number); current and former home and work addresses, phone numbers, and email addresses; employment history; military record information; branch of Service; selective service registration record; residential history; education history and degrees earned; names of associates and references with their contact information; citizenship information; passport information; driver's license information; identifying numbers from access control passes or identification cards; alien registration number; criminal history; civil court actions; prior personnel security eligibility, investigative, and adjudicative information, including information collected through continuous evaluation; mental health history; records related to drug and/or alcohol use; financial record information; credit reports; the name, date and place of birth, social security number, and citizenship information for spouse or cohabitant; the name and marriage information for current and former spouse(s); the citizenship, name, date and place of birth, and address for relatives.

    Information on foreign contacts and activities; association records; information on loyalty to the United States; and other agency reports furnished to DoD or collected by DoD in connection with personnel security investigations, continuous evaluation for eligibility for access to classified information, and insider threat detection programs operated by DoD Components pursuant to Federal laws and Executive Orders and DoD regulations. These records can include, but are not limited to: Reports of personnel security investigations completed by investigative service providers (such as the Office of Personnel Management).

    Polygraph examination reports; nondisclosure agreements; document control registries; courier authorization requests; derivative classification unique identifiers; requests for access to sensitive compartmented information (SCI); facility access records; security violation files; travel records; foreign contact reports; briefing and debriefing statements for special programs, positions designated as sensitive, other information and documents required in connection with personnel security adjudications; and financial disclosure filings.

    DoD Component information, summaries or reports, and full reports, about potential insider threats from:

    Payroll information, travel vouchers, benefits information, credit reports, equal employment opportunity complaints, performance evaluations, disciplinary files, training records, substance abuse and mental health records of individuals undergoing law enforcement action or presenting an identifiable imminent threat, counseling statements, outside work and activities requests, and personal contact records;

    Particularly sensitive or protected information, including information held by special access programs, law enforcement, inspector general, or other investigative sources or programs. Access to such information may require additional approval by the senior DoD official who is responsible for managing and overseeing the program;

    Reports of investigation regarding security violations, including but not limited to: Statements, declarations, affidavits and correspondence; incident reports; investigative records of a criminal, civil or administrative nature; letters, emails, memoranda, and reports; exhibits and evidence; and, recommended remedial or corrective actions for security violations;

    Information containing personnel user names and aliases, levels of network access, audit data, information regarding misuse of a DoD device, information regarding unauthorized use of removable media, and logs of printer, copier, and facsimile machine use;

    Information collected through user activity monitoring, which is the technical capability to observe and record the actions and activities of all users, at any time, on a computer network controlled by DoD or a component thereof in order to deter, detect, and/or mitigate insider threats as well as to support authorized investigations. Such information may include key strokes, screen captures, and content transmitted via email, chat, or data import or export. DoD Component summaries of reports, and full reports, about potential insider threats from records of usage of government telephone systems, including the telephone number initiating the call, the telephone number receiving the call, and the date and time of the call;

    Information obtained from other Federal Government sources, such as information regarding U.S. border crossings and financial information obtained from the Financial Crimes Enforcement Network;

    Information specific to the management and operation of each DoD Component insider threat program, including information related to investigative or analytical efforts by DoD insider threat program personnel to identify threats to DoD personnel, property, facilities, and information, and information obtained from Intelligence Community members, the Federal Bureau of Investigation, or from other agencies or organizations about individuals known or suspected of being engaged in conduct constituting, preparing for, aiding, or relating to an insider threat, including but not limited to espionage or unauthorized disclosure of classified national security information;

    Publicly available information, such as information regarding: Arrests and detentions; real property; bankruptcy; liens or holds on property; vehicles; licensure (including professional and pilot's licenses, firearms and explosive permits); business licenses and filings;

    Publicly available social media information, including electronic social media information that has been published or broadcast for public consumption, is available on request to the public, is accessible on-line to the public, is available to the public by subscription or purchase, or is otherwise lawfully accessible to the public. It includes social media information generally available to persons in a military community even though the military community is not open to the civilian general public. Publicly available social media information does not include information that can be accessed only by logging into a private account of the individual about whom the record pertains or by requiring the individual to provide a password to social media information that is not publicly available;

    Workplace performance information, including performance management and appraisal reviews and other performance based measures. Information collected from the DoD Defense Performance Management and Appraisal Program, and

    Information related to reports regarding harassment, discrimination, and drug testing violations or results, including but not limited to: Statements, declarations, affidavits and correspondence; incident reports; investigative records of a criminal, civil or administrative nature; letters, emails, memoranda, and reports; exhibits and evidence; and, recommended remedial or corrective actions.

    RECORD SOURCE CATEGORIES:

    Information in the system is received from the individual as they complete official questionnaires and applications. Information is also received from DoD Components and program offices throughout DoD and DoD contractor databases, internal and external sources, including counterintelligence and security databases and files; personnel security databases and files; DoD Component human resources databases and files; Office of the Chief Information Officer and information assurance databases and files; information collected through user activity monitoring; DoD telephone usage records; Federal, state, tribal, territorial, and local law enforcement and investigatory records; Inspector General records; available U.S. Government intelligence and counterintelligence reporting information and analytic products pertaining to adversarial threats; other Federal agencies; and publicly available information, including commercially available subscription databases containing public records.

    ROUTINE USES OF RECORDS MAINTAINED IN THE SYSTEM, INCLUDING CATEGORIES OF USERS AND PURPOSES OF SUCH USES:

    In addition to disclosures permitted under 5 U.S.C. 552a(b) of the Privacy Act of 1974, as amended, these records may be disclosed outside DoD as a routine use pursuant to 5 U.S.C. 552(b)(3) as follows:

    (a) To an appropriate federal, state, local, tribal, territorial, foreign, or international agency, if the information is relevant and necessary to a requesting agency's decision concerning the hiring or retention of an individual, or issuance of a security clearance, license, contract, grant, delegation or designation of authority, or other benefit, or if the information is relevant and necessary to a DoD decision concerning the hiring or retention of an employee, the issuance of a security clearance, the reporting of an investigation of an employee, the letting of a contract, or the issuance of a license, grant, delegation or designation of authority, or other benefit and disclosure is appropriate to the proper performance of the official duties of the person making the request.

    (b) A record consisting of, or relating to, terrorism information, homeland security information, counterintelligence, or law enforcement information may be disclosed to a Federal, state, local, tribal, territorial, foreign government, multinational agency, and to a private sector agent either in response to its request or upon the initiative of the DoD Component, for purposes of sharing such information as is necessary and relevant to the agency's investigations and inquiries related to the detection, prevention, disruption, preemption, and mitigation of the effects of terrorist activities against the territory, people, and interests of the United States of America as contemplated by the Intelligence Reform and Terrorism Protection Act of 2004.

    (c) To any person, organization or governmental entity (e.g., local governments, first responders, American Red Cross, etc.), in order to notify them of or respond to a serious and imminent terrorist or homeland security threat or natural or manmade disaster as is necessary and relevant for the purpose of guarding against or responding to such threat or disaster.

    (d) To complainants and/or victims to the extent necessary to provide such persons with information and explanations concerning the progress and/or results of the investigation or case arising from the matters of which they complained and/or of which they were a victim.

    (e) To officials and agencies of the Executive Branch of government, federal contractors and grantees, for purposes of conducting studies, research and analyses of insider threat programs or issues.

    (f) To contractors, grantees, experts, consultants, students, and others performing or working on a contract, service, grant, cooperative agreement, or other assignment for the Federal Government when necessary to accomplish an agency function related to this system of records.

    (g) To designated officers and employees of Federal, State, local, territorial or tribal, international, or foreign agencies maintaining civil, criminal, enforcement, or other pertinent information, such as current licenses, if necessary to obtain information relevant and necessary to a DoD Component decision concerning the hiring or retention of an employee, the issuance of a security clearance, the letting of a contract, or the issuance of a license, grant, or other benefit.

    (h) To foreign law enforcement, security, investigatory, or administrative authorities to comply with requirements imposed by, or to claim rights conferred in, international agreements and arrangements, including those regulating the stationing and status in foreign countries of DoD military and civilian personnel.

    (i) To any agency, organization, or individual for the purposes of performing audit or oversight of the DoD Insider Threat Program as authorized by law and as necessary and relevant to such audit or oversight functions.

    (j) To such recipients and under such circumstances and procedures as are mandated by Federal statute or treaty.

    (k) To third parties during the course of an investigation to the extent necessary to obtain information pertinent to the investigation, provided disclosure is appropriate to the proper performance of the official duties of the individual making the disclosure.

    (l) To a Federal agency or entity that may have information relevant to an allegation or investigation or was consulted regarding an insider threat for purposes of obtaining guidance, additional information, or advice from such Federal agency or entity regarding the handling of an insider threat matter.

    (m) To the news media or the general public, factual information the disclosure of which would be in the public interest and which would not constitute an unwarranted invasion of personal privacy.

    (n) To a Federal, state, or local agency, or other appropriate entities or individuals, or through established liaison channels to selected foreign governments, in order to enable an intelligence agency to carry out its responsibilities under the National Security Act of 1947 as amended, the Central Intelligence Act of 1949 as amended, E.O. 12333 or any successor order, applicable national security directives, or classified implementing procedures approved by the Attorney General and promulgated pursuant to such statutes, orders or directives.

    (o) To the appropriate Federal, State, local, territorial, tribal, foreign, or international law enforcement authority or other appropriate entity where a record, either alone or in conjunction with other information, indicates a violation or potential violation of law, whether criminal, civil, or regulatory in nature.

    (p) To the Department of Justice for the purpose of representing the Department of Defense, or its components, officers, employees, or members in pending or potential litigation to which the record is pertinent.

    (q) To appropriate agencies, entities, and persons when (1) the DoD suspects or has confirmed that there has been a breach of the system of records; (2) the DoD has determined that as a result of the suspected or confirmed breach there is a risk of harm to individuals, the DoD (including its information systems, programs, and operations), the Federal Government, or national security; and (3) the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with the DoD's efforts to respond to the suspected or confirmed breach or to prevent, minimize, or remedy such harm.

    (r) To another Federal agency or Federal entity, when the DoD determines that information from this system of records is reasonably necessary to assist the recipient agency or entity in (1) responding to a suspected or confirmed breach or (2) preventing, minimizing, or remedying the risk of harm to individuals, the recipient agency or entity (including its information systems, programs and operations), the Federal Government, or national security, resulting from a suspected or confirmed breach.

    (s) To a Member of Congress or staff acting upon the Member's behalf when the Member or staff requests the information on behalf of, and at the request of, the individual who is the subject of the record.

    (t) To the National Archives and Records Administration for the purpose of records management inspections conducted under the authority of 44 U.S.C. 2904 and 2906.

    (u) In an appropriate proceeding before a court, grand jury, or administrative or adjudicative body or official, when the DoD or other Agency representing the DoD determines that the records are relevant and necessary to the proceeding; or in an appropriate proceeding before an administrative or adjudicative body when the adjudicator determines the records to be relevant to the proceeding.

    POLICIES AND PRACTICES FOR STORAGE OF RECORDS:

    Records are maintained in paper and electronic storage media, in accordance with the safeguards mentioned below.

    POLICIES AND PRACTICES FOR RETRIEVAL OF RECORDS:

    Information in this system may be retrieved by name, SSN, and/or DoD identification number.

    POLICIES AND PRACTICES FOR RETENTION AND DISPOSAL OF RECORDS:

    System records are retained and disposed of according to DoD records maintenance and disposition schedules and the requirements of the National Archives and Records Administration (General Records Schedule 5.6: Security Records Transmittal No. 28 July 2017, item 210-240).

    ADMINISTRATIVE, TECHNICAL, AND PHYSICAL SAFEGUARDS:

    Information technology systems are protected by military personnel, civilian employee, or contract security personnel guards. Physical access to rooms is controlled by combination lock and by identification badges that are issued only to authorized individuals. Electronic authorization and authentication of users is required at all points before any system information can be accessed. All data transfers and information retrievals that use remote communication facilities are required to be encrypted. Paper records are contained and stored in safes and filing cabinets that are located in a secure area with access only by authorized personnel.

    RECORD ACCESS PROCEDURES:

    Individuals seeking information about themselves contained in the DITMAC system of record should address written inquires to the Defense Security Service, Office of FOIA and PA, 27130 Telegraph Road, Quantico, VA 22134-2253.

    Individuals seeking information about themselves contained in any specific DoD Component's insider threat program system of records should address written inquiries to the official mailing address for that Component, which is published with each Component's compilation of systems of records notices. DoD Component addresses are also listed at: http://dpcld.defense.gov/Privacy/Privacy-Contacts/.

    Individuals seeking information about themselves contained in the DITMAC system of records that originated in another DoD Component may be directed to the originating DoD Component that maintains the records being sought.

    Individuals should provide their full name (and any alias and/or alternate name), SSN, and date and place of birth, and the address where the records are to be returned.

    In addition, the requester must provide either a notarized statement or an unsworn declaration made in accordance with 28 U.S.C. 1746, in the following format:

    If executed outside of the United States:

    “I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date). (Signature).”

    If executed within the United States, its territories, possessions, or commonwealths:

    “I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature).”

    Attorneys or other persons acting on behalf of an individual must provide written authorization from that individual for the representative to act on their behalf.

    CONTESTING RECORD PROCEDURES:

    The DoD rules for accessing records and for contesting or appealing agency determinations are published in DoD Regulation 5400.11; 32 CFR 310; or may be obtained from the Defense Privacy, Civil Liberties, and Transparency Division, 4800 Mark Center Drive; ATTN: DPCLTD, Mailbox #24; Alexandria, VA 22350-1700.

    NOTIFICATION PROCEDURES:

    Individuals seeking to determine whether information about themselves is contained in the DITMAC system of records should address written inquires to the Defense Security Service, Office of FOIA and PA, 27130 Telegraph Road, Quantico, VA 22134-2253.

    Individuals seeking to determine whether information about themselves is contained in any specific DoD Component's insider threat program system of records should address written inquiries to the official mailing address for that Component, which is published with each Component's compilation of systems of records notices. DoD Component addresses are also listed at: http://dpcld.defense.gov/Privacy/Privacy-Contacts/.

    Signed, written requests must contain the full name (and any alias and/or alternate names used), SSN, and date and place of birth.

    In addition, the requester must provide either a notarized statement or an unsworn declaration made in accordance with 28 U.S.C. 1746, in the following format:

    If executed outside of the United States:

    “I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date). (Signature).”

    If executed within the United States, its territories, possessions, or commonwealths:

    “I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature).”

    EXEMPTIONS PROMULGATED FOR THE SYSTEM:

    The DoD is exempting records maintained in DUSDI 01-DoD, the “Department of Defense (DoD) Insider Threat Management and Analysis Center (DITMAC) and DoD Component Insider Threat Records System,” from subsections (c)(3) and (4); (d)(1), (2), (3), and (4); (e)(1), (2), (3), (4)(G), (H), and (I), (5), and (8); (f); and (g) of the Privacy Act pursuant to 5 U.S.C. 552a(j)(2) and (k)(1), (2), (4), (5), (6), (7). In addition, exempt records received from other systems of records in the course of DITMAC or Component record checks may, in turn, become part of the case records in this system. When records are exempt from disclosure in systems of records for record sources accessed by this system, DoD also claims the same exemptions for any copies of such records received by and stored in this system.

    An exemption rule for this system has been promulgated in accordance with requirements of 5 U.S.C. 553(b)(1), (2), and (3), (c) and (e) and published in 32 CFR part 310. For additional information contact the system manager.

    HISTORY:

    September 23, 2016, 81 FR 65631; May 19, 2016, 81 FR 31614.

    [FR Doc. 2018-05699 Filed 3-20-18; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF DEFENSE Office of the Secretary [Docket ID DOD-2018-OS-0011] Proposed Collection; Comment Request AGENCY:

    Office of the Assistant Secretary of Defense for Manpower and Reserve Affairs, DoD.

    ACTION:

    Information collection notice.

    SUMMARY:

    In compliance with the Paperwork Reduction Act of 1995, the Office of the Assistant Secretary of Defense for Manpower and Reserve Affairs announces a proposed public information collection and seeks public comment on the provisions thereof. Comments are invited on: whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; the accuracy of the agency's estimate of the burden of the proposed information collection; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the information collection on respondents, including through the use of automated collection techniques or other forms of information technology.

    DATES:

    Consideration will be given to all comments received by May 21, 2018.

    ADDRESSES:

    You may submit comments, identified by docket number and title, by any of the following methods:

    Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.

    Mail: Department of Defense, Office of the Chief Management Officer, Directorate for Oversight and Compliance, 4800 Mark Center Drive, Mailbox #24, Suite 08D09B, Alexandria, VA 22350-1700.

    Instructions: All submissions received must include the agency name, docket number and title for this Federal Register document. The general policy for comments and other submissions from members of the public is to make these submissions available for public viewing on the internet at http://www.regulations.gov as they are received without change, including any personal identifiers or contact information.

    Any associated form(s) for this collection may be located within this same electronic docket and downloaded for review/testing. Follow the instructions at http://www.regulations.gov for submitting comments. Please submit comments on any given form identified by docket number, form number, and title.

    FOR FURTHER INFORMATION CONTACT:

    To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the Defense Civilian Personnel Advisory Service (DCPAS), ATTN: Dakhalfani Boyd, 4800 Mark Center Drive, Alexandria, VA 22350-1100, or call DCPAS, Enterprise Solutions and Integration, at 571-372-2120.

    SUPPLEMENTARY INFORMATION:

    Title; Associated Form; and OMB Number: Department of Defense New Hire Forms; DD X735, DD X739, DD X741; OMB Control Number 0704-XXXX.

    Needs and Uses: This information collection is necessary to ensure that all new hires across the Department of Defense meet the basic requirements of civil service. The New Hire Forms, DD X735, “Release/Consent Statement,” DD X739, “Civilian Employee's Military Reserve, Guard, or Retiree Data,” and DD X741, “Term Employment Statement of Understanding,” supplant and standardize the paperwork used throughout the Department of Defense to verify the eligibility of onboarding employees.

    Affected Public: Individuals or Households.

    Annual Burden Hours: 6,833.35.

    Number of Respondents: 80,000.

    Responses per Respondent: 80,000 respondents fill out DD X739; approximately 1000 respondents drawn from that population will each fill out DD X735 and DD X741 as required.

    Annual Responses: 82,000.

    Average Burden per Response: 5 minutes.

    Frequency: On occasion.

    For all forms, the purpose is to transmit new hire and onboarding data between the DoD civilian personnel system of record, the Defense Civilian Personnel Data System, and the OPM hiring systems, namely USA Staffing Upgrade, and eOPF.

    Dated: March 16, 2018. Aaron Siegel, Alternate OSD Federal Register, Liaison Officer, Department of Defense.
    [FR Doc. 2018-05713 Filed 3-20-18; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF EDUCATION Application for New Awards; Expanding Opportunity Through Quality Charter Schools Program (CSP)—Grants for Credit Enhancement for Charter School Facilities AGENCY:

    Office of Innovation and Improvement, Department of Education.

    ACTION:

    Notice.

    SUMMARY:

    The Department of Education is issuing a notice inviting applications for fiscal year (FY) 2018 for CSP—Grants for Credit Enhancement for Charter School Facilities (Credit Enhancement), Catalog of Federal Domestic Assistance (CFDA) number 84.354A.

    DATES:

    Applications Available: March 21, 2018.

    Date of Pre-Application Meeting: The Credit Enhancement program intends to hold a webinar designed to provide technical assistance to interested applicants. Detailed information regarding this webinar will be provided on the Credit Enhancement web page at https://innovation.ed.gov/what-we-do/charter-schools/credit-enhancement-for-charter-school-facilities-program/applicant-info-and-eligibility/.

    Deadline for Transmittal of Applications: May 11, 2018.

    Deadline for Intergovernmental Review: July 5, 2018.

    ADDRESSES:

    For the addresses for obtaining and submitting an application, please refer to our Common Instructions for Applicants to Department of Education Discretionary Grant Programs, published in the Federal Register on February 12, 2018 (83 FR 6003) and available at www.thefederalregister.org/fdsys/pkg/FR-2018-02-12/pdf/2018-02558.pdf.

    FOR FURTHER INFORMATION CONTACT:

    Clifton Jones, U.S. Department of Education, 400 Maryland Avenue SW, Room 4W244, Washington, DC 20202-5970. Telephone: (202) 205-2204 or by email: [email protected]

    If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-800-877-8339.

    SUPPLEMENTARY INFORMATION:

    Full Text of Announcement I. Funding Opportunity Description

    Purpose of Program: The Credit Enhancement program provides grants to eligible entities to demonstrate innovative methods of helping charter schools to address the cost of acquiring, constructing, and renovating facilities by enhancing the availability of loans and bond financing.

    Background: Since FY 2002, the Department has made new Credit Enhancement grants each year, which has resulted in a portfolio of grantees using Federal funds to enhance the credit of charter schools so that they can access private-sector and other non-Federal capital in order to acquire, construct, and renovate facilities at a reasonable cost.

    This notice contains application requirements from the Elementary and Secondary Education Act of 1965 (ESEA), as amended by the Every Student Succeeds Act (ESSA),1 and selection criteria and a competitive preference priority for charter schools operating in high-need communities and geographic areas from program regulations at 34 CFR part 225. This notice also includes an invitational priority that encourages applicants to partner with other entities to leverage new or previously untapped capital and other resources to expand support to more schools and students as well as improve their ability to support schools and students. Under this priority, an applicant could propose, for example, to partner with a newly created State-funded credit enhancement program designed to improve charter schools' credit ratings on bonds, thereby enabling charter school facility financing at lower interest rates and lower borrowing costs.

    1 Unless otherwise indicated, references to the ESEA are to the ESEA, as amended by the ESSA.

    Priorities: This competition includes one competitive preference priority and one invitational priority.

    Competitive Preference Priority: In accordance with 34 CFR 75.105(b)(2)(ii), this priority is from 34 CFR 225.12. For FY 2018 and any subsequent year in which we make awards from the list of unfunded applications from this competition, this priority is a competitive preference priority. Under 34 CFR 75.105(c)(2)(i), we award up to an additional 15 points to an application, depending on how well the application addresses the priority.

    This priority is:

    The capacity of charter schools to offer public school choice in those communities with the greatest need for this choice based on—

    (1) The extent to which the applicant would target services to geographic areas in which a large proportion or number of public schools have been identified for improvement, corrective action, or restructuring under Title I of the Elementary and Secondary Education Act of 1965, as amended by the No Child Left Behind Act of 2001 (NCLB);

    (2) The extent to which the applicant would target services to geographic areas in which a large proportion of students perform below proficient on State academic assessments; and

    (3) The extent to which the applicant would target services to communities with large proportions of students from low-income families.

    Note:

    With regard to paragraph (1), consistent with the ESSA, if applicants will be operating in States that have identified schools for comprehensive support and improvement or targeted support and improvement under the ESEA, as amended by the ESSA, “improvement, corrective action, or restructuring” refers to schools identified for “comprehensive support and improvement or targeted support and improvement” under the ESEA, as amended by the ESSA. If applicants will be operating in States that are delaying, as permitted by the Department, the identification of schools for comprehensive support and improvement or targeted support and improvement until school year 2018-2019, the Department will award competitive preference points under paragraph (1) to allow those applicants to target services to geographic areas in which a large proportion of public schools are, at the time of submission of an application under this competition: (i) Elementary and secondary schools identified as in need of improvement, corrective action, or restructuring under the ESEA, as amended by NCLB; or (ii) elementary and secondary schools identified as a priority or focus school by the State prior to August 1, 2016 under ESEA flexibility. After school year 2018-2019, the Department will require a grantee that is operating in States that are delaying identification of schools, and that receives points under this priority, to amend its approved application, as needed, to describe how it will target services to geographic areas in which a large proportion of public schools are elementary and secondary schools identified for comprehensive or targeted support and improvement under the ESEA, as amended by the ESSA.

    Invitational Priority: For FY 2018 and any subsequent year in which we make awards from the list of unfunded applications from this competition, this priority is an invitational priority. Under 34 CFR 75.105(c)(1) we do not give an application that meets this invitational priority a competitive or absolute preference over other applications.

    This priority is:

    Projects proposing the development of one or more partnerships that will enable the applicant to leverage newly created or previously untapped sources of capital or other assistance, which may include non-Federal programs, in financing charter school facilities in geographic areas and communities described in the competitive preference priority.

    Definitions: The following definition is from section 4310 of the ESEA (20 U.S.C. 7221i(2)).

    Charter school means a public school that—

    (a) In accordance with a specific State statute authorizing the granting of charters to schools, is exempt from significant State or local rules that inhibit the flexible operation and management of public schools, but not from any rules relating to the other requirements in section 4310 of the ESEA;

    (b) Is created by a developer as a public school, or is adapted by a developer from an existing public school, and is operated under public supervision and direction;

    (c) Operates in pursuit of a specific set of educational objectives determined by the school's developer and agreed to by the authorized public chartering agency;

    (d) Provides a program of elementary or secondary education, or both;

    (e) Is nonsectarian in its programs, admissions policies, employment practices, and all other operations, and is not affiliated with a sectarian school or religious institution;

    (f) Does not charge tuition;

    (g) Complies with the Age Discrimination Act of 1975 (42 U.S.C. 6101 et seq.), title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.), title IX of the Education Amendments of 1972 (20 U.S.C. 1681 et seq.), section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), the Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.), section 444 of the General Education Provisions Act (20 U.S.C. 1232g) (commonly referred to as the “Family Educational Rights and Privacy Act of 1974”), and part B of the Individuals with Disabilities Education Act (20 U.S.C. 1411 et seq.);

    (h) Is a school to which parents choose to send their children, and that—

    (1) Admits students on the basis of a lottery, consistent with section 4303(c)(3)(A) (20 U.S.C. 7221b(c)(3)(A)), if more students apply for admission than can be accommodated; or

    (2) In the case of a school that has an affiliated charter school (such as a school that is part of the same network of schools), automatically enrolls students who are enrolled in the immediate prior grade level of the affiliated charter school and, for any additional student openings or student openings created through regular attrition in student enrollment in the affiliated charter school and the enrolling school, admits students on the basis of a lottery as described in clause (1);

    (i) Agrees to comply with the same Federal and State audit requirements as do other elementary schools and secondary schools in the State, unless such State audit requirements are waived by the State;

    (j) Meets all applicable Federal, State, and local health and safety requirements;

    (k) Operates in accordance with State law;

    (l) Has a written performance contract with the authorized public chartering agency in the State that includes a description of how student performance will be measured in charter schools pursuant to State assessments that are required of other schools and pursuant to any other assessments mutually agreeable to the authorized public chartering agency and the charter school; and

    (m) May serve students in early childhood education programs or postsecondary students.

    Program Authority: 20 U.S.C. 7221c.

    Applicable Regulations: (a) The Education Department General Administrative Regulations in 34 CFR parts 75, 77, 79, 81, 82, 84, 86, 97, 98, and 99. (b) The Office of Management and Budget Guidelines to Agencies on Governmentwide Debarment and Suspension (Nonprocurement) in 2 CFR part 180, as adopted and amended as regulations of the Department in 2 CFR part 3485. (c) The Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards in 2 CFR part 200, as adopted and amended as regulations of the Department in 2 CFR part 3474. (d) The regulations for this program in 34 CFR part 225.

    II. Award Information

    Type of Award: Discretionary grants.

    Estimated Available Funds: The Administration has requested $500,000,000 for the CSP for FY 2018, of which we would use an estimated $65,000,000 for new awards under this competition. The actual level of funding, if any, depends on final congressional action. However, we are inviting applications to allow enough time to complete the grant process if Congress appropriates funds for this program.

    Contingent upon the availability of funds and the quality of applications, we may make additional awards in subsequent years from the list of unfunded applications from this competition.

    Estimated Range of Awards: $4,000,000 to $12,000,000.

    Estimated Average Size of Awards: $9,000,000.

    Maximum Award: We will not make an award exceeding $12,000,000 for a single grant project period.

    Estimated Number of Awards: 7.

    Note:

    The Department is not bound by any estimates in this notice.

    Project Period: From the start date indicated on the grant award document until the Federal funds and earnings on those funds have been expended for the grant purposes or until financing facilitated by the grant has been retired, whichever is later.

    III. Eligibility Information

    1. Eligible Applicants:

    (a) A public entity, such as a State or local governmental entity;

    (b) A private, nonprofit entity; or

    (c) A consortium of entities described in paragraphs (a) and (b) of this section.

    2. Cost Sharing or Matching: This program does not require cost sharing or matching.

    3. Subgrantees: A grantee under this competition may not award subgrants to entities to directly carry out project activities described in its application.

    4. Other: The charter schools that a grantee selects to benefit from this program must meet the definition of “charter school” in section 4310 of the ESEA (20 U.S.C. 7221i).

    IV. Application and Submission Information

    1. Application Submission Instructions: For information on how to submit an application please refer to our Common Instructions for Applicants to Department of Education Discretionary Grant Programs, published in the Federal Register on February 12, 2018 (83 FR 6003) and available at www.thefederalregister.org/fdsys/pkg/FR-2018-02-12/pdf/2018-02558.pdf.

    2. Content and Form of Application Submission: Each Credit Enhancement program application must include the following specific elements:

    (a) A statement identifying the activities that the eligible entity proposes to carry out with funds received under the program, including how the eligible entity will determine which charter schools will receive assistance, and how much and what types of assistance charter schools will receive.

    (b) A description of the involvement of charter schools in the application's development and the design of the proposed activities.

    (c) A description of the eligible entity's expertise in capital market financing. (Consortium applicants must provide this information for each of the participating organizations.)

    (d) A description of how the proposed activities will leverage the maximum amount of private-sector financing capital relative to the amount of government funding used and otherwise enhance credit available to charter schools, including how the eligible entity will offer a combination of rates and terms more favorable than the rates and terms that a charter school could receive without assistance from the eligible entity under this section.

    (e) A description of how the eligible entity possesses sufficient expertise in education to evaluate the likelihood of success of a charter school program for which facilities financing is sought.

    (f) In the case of an application submitted by a State governmental entity, a description of the actions that the eligible entity has taken, or will take, to ensure that charter schools within the State receive the funding that charter schools need to have adequate facilities.

    (g) In the case of applicants applying as a consortium, applicants must also submit consortium agreements as part of their application package. These applicants must either designate one member of the group to apply for the grant or establish a separate legal entity to apply for the grant. All members of the consortium must then enter into an agreement that details the activities that each member of the group plans to perform and that binds each member to the application statements and assurances. This consortium agreement must be submitted as part of the consortium's application. The Department's administrative regulations at 34 CFR 75.127-129 provide more details about the requirements that govern group/consortium applications.

    3. Submission of Proprietary Information: Given the types of projects that may be proposed in applications for the Credit Enhancement program, your application may include business information that you consider proprietary. In 34 CFR 5.11, we define “business information” and describe the process we use in determining whether any of that information is proprietary and, thus, protected from disclosure under Exemption 4 of the Freedom of Information Act (5 U.S.C. 552, as amended).

    Because we plan to make successful applications available to the public, you may wish to request confidentiality of business information.

    Consistent with Executive Order 12600, please designate in your application any information that you feel is exempt from disclosure under Exemption 4. In the appropriate Appendix section of your application, under “Other Attachments Form,” please list the page number or numbers on which we can find this information. For additional information please see 34 CFR 5.11(c).

    4. Intergovernmental Review: This program is subject to Executive Order 12372 and the regulations in 34 CFR part 79. Information about Intergovernmental Review of Federal Programs under Executive Order 12372 is in the application package for this competition.

    5. Funding Restrictions: (a) Reserve accounts. An eligible entity receiving a grant must, in accordance with State and local law, directly or indirectly, alone or in collaboration with others, deposit the funds received, other than funds used for administrative costs, in a reserve account established and maintained by the eligible entity. Amounts deposited in such account must be used by the eligible entity for one or more of the following purposes:

    (1) Guaranteeing, insuring, and reinsuring bonds, notes, evidences of debt, loans, and interests therein.

    (2) Guaranteeing and insuring leases of personal and real property.

    (3) Facilitating financing by identifying potential lending sources, encouraging private lending, and other similar activities that directly promote lending to, or for the benefit of, charter schools.

    (4) Facilitating the issuance of bonds by charter schools, or by other public entities for the benefit of charter schools, by providing technical, administrative, and other appropriate assistance (including the recruitment of bond counsel, underwriters, and potential investors and the consolidation of multiple charter school projects within a single bond issue).

    Funds received and deposited in the reserve account must be invested in obligations issued or guaranteed by the United States or a State, or in other similarly low-risk securities. Any earnings on funds received must be deposited in the reserve account and used in accordance with this program.

    (b) Charter school objectives. An eligible entity receiving a grant must use the funds deposited in the reserve account to assist one or more charter schools to access private-sector capital to accomplish one or more of the following objectives:

    (1) The acquisition (by purchase, lease, donation, or otherwise) of an interest (including an interest held by a third party for the benefit of a charter school) in improved or unimproved real property that is necessary to commence or continue the operation of a charter school.

    (2) The construction of new facilities, or the renovation, repair, or alteration of existing facilities, necessary to commence or continue the operation of a charter school.

    (3) The predevelopment costs required to assess sites and to commence or continue the operation of a charter school.

    (c) Other. Grantees must ensure that all costs incurred using funds from the reserve account are reasonable. Under 20 U.S.C. 7221c(g), an eligible entity may use not more than 2.5 percent of the funds received under this grant for the administrative costs of carrying out its project responsibilities.

    We specify unallowable costs in 34 CFR 225.21.

    The full faith and credit of the United States are not pledged to the payment of funds under such obligation. In the event of a default on any debt or other obligation, the United States has no liability to cover the cost of the default.

    Applicants that are selected to receive an award must enter into a written Performance Agreement with the Department prior to drawing down funds, unless the grantee receives written permission from the Department in the interim to draw down a specific limited amount of funds. Grantees must maintain and enforce standards of conduct governing the performance of their employees, officers, directors, trustees, and agents engaged in the selection, award, and administration of contracts or agreements related to this grant. The standards of conduct must mandate disinterested decision-making. The Secretary, in accordance with chapter 37 of title 31 of the United States Code, will collect all or a portion of the funds in the reserve account established with grant funds (including any earnings on those funds) if the Secretary determines that: (1) The grantee has permanently ceased to use such funds to accomplish the purposes described in the authorizing statute and the Performance Agreement; or (2) not earlier than two years after the date on which it first receives these funds, the grantee has failed to make substantial progress in undertaking the grant project.

    6. Recommended Page Limit: The application narrative is where you, the applicant, address the selection criteria that reviewers use to evaluate your application. We recommend that you (1) limit the application narrative to 40 pages and (2) use the following standards:

    • A “page” is 8.5″ × 11″, on one side only, with 1″ margins at the top, bottom, and both sides.

    • Double space (no more than three lines per vertical inch) all text in the application narrative, including titles, headings, footnotes, quotations, references, and captions, as well as all text in charts, tables, figures, and graphs.

    • Use a font that is either 12 point or larger or no smaller than 10 pitch (characters per inch).

    • Use one of the following fonts: Times New Roman, Courier, Courier New, or Arial.

    Furthermore, applicants are strongly encouraged to include a table of contents that specifies where each required part of the application is located.

    V. Application Review Information

    1. Selection Criteria: The selection criteria for this competition are from program regulations at 34 CFR 225.11. The Secretary awards up to 100 points for addressing these criteria. The maximum possible score for addressing each criterion is indicated in parentheses. Each criterion also includes the factors that the reviewers will consider to determine how well an application meets the criterion. We encourage applicants to make explicit connections to the selection criteria and factors in their applications.

    The Secretary uses the following criteria to evaluate an application for a Credit Enhancement grant:

    (a) Quality of project design and significance (35 points):

    In determining the quality of project design and significance, the Secretary considers—

    (1) The extent to which the grant proposal would provide financing to charter schools at better rates and terms than they can receive absent assistance through the program;

    (2) The extent to which the project goals, objectives, and timeline are clearly specified, measurable, and appropriate for the purpose of the program;

    (3) The extent to which the project implementation plan and activities, including the partnerships established, are likely to achieve measurable objectives that further the purposes of the program;

    (4) The extent to which the project is likely to produce results that are replicable;

    (5) The extent to which the project will use appropriate criteria for selecting charter schools for assistance and for determining the type and amount of assistance to be given;

    (6) The extent to which the proposed activities will leverage private or public-sector funding and increase the number and variety of charter schools assisted in meeting their facilities needs more than would be accomplished absent the program;

    (7) The extent to which the project will serve charter schools in States with strong charter laws, consistent with the criteria for such laws in section 4303(g)(2) of the ESEA; and

    (8) The extent to which the requested grant amount and the project costs are reasonable in relation to the objectives, design, and potential significance of the project.

    (b) Quality of project services (15 points):

    In determining the quality of the project services, the Secretary considers—

    (1) The extent to which the services to be provided by the project reflect the identified needs of the charter schools to be served;

    (2) The extent to which charter schools and chartering agencies were involved in the design of, and demonstrate support for, the project;

    (3) The extent to which the technical assistance and other services to be provided by the proposed grant project involve the use of cost-effective strategies for increasing charter schools' access to facilities financing, including the reasonableness of fees and lending terms; and

    (4) The extent to which the services to be provided by the proposed grant project are focused on assisting charter schools with a likelihood of success and the greatest demonstrated need for assistance under the program.

    (c) Capacity (35 points):

    In determining an applicant's business and organizational capacity to carry out the project, the Secretary considers—

    (1) The amount and quality of experience of the applicant in carrying out the activities it proposes to undertake in its application, such as enhancing the credit on debt issuances, guaranteeing leases, and facilitating financing;

    (2) The applicant's financial stability;

    (3) The ability of the applicant to protect against unwarranted risk in its loan underwriting, portfolio monitoring, and financial management;

    (4) The applicant's expertise in education to evaluate the likelihood of success of a charter school;

    (5) The ability of the applicant to prevent conflicts of interest, including conflicts of interest by employees and members of the board of directors in a decision-making role;

    (6) If the applicant has co-applicants (consortium members), partners, or other grant project participants, the specific resources to be contributed by each co-applicant (consortium member), partner, or other grant project participant to the implementation and success of the grant project;

    (7) For State governmental entities, the extent to which steps have been or will be taken to ensure that charter schools within the State receive the funding needed to obtain adequate facilities; and

    (8) For previous grantees under the charter school facilities programs, their performance in implementing these grants.

    (d) Quality of project personnel (15 points):

    In determining the quality of project personnel, the Secretary considers—

    (1) The qualifications of project personnel, including relevant training and experience, of the project manager and other members of the project team, including consultants or subcontractors; and

    (2) The staffing plan for the grant project.

    2. Review and Selection Process: We remind potential applicants that in reviewing applications in any discretionary grant competition, the Secretary may consider, under 34 CFR 75.217(d)(3), the past performance of the applicant in carrying out a previous award, such as the applicant's use of funds, achievement of project objectives, and compliance with grant conditions. The Secretary may also consider whether the applicant failed to submit a timely performance report or submitted a report of unacceptable quality.

    In addition, in making a competitive grant award, the Secretary requires various assurances, including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).

    3. Risk Assessment and Special Conditions: Consistent with 2 CFR 200.205, before awarding grants under this competition the Department conducts a review of the risks posed by applicants. Under 2 CFR 3474.10, the Secretary may impose special conditions and, in appropriate circumstances, high-risk conditions on a grant if the applicant or grantee is not financially stable; has a history of unsatisfactory performance; has a financial or other management system that does not meet the standards in 2 CFR part 200, subpart D; has not fulfilled the conditions of a prior grant; or is otherwise not responsible.

    4. Integrity and Performance System: If you are selected under this competition to receive an award that over the course of the project period may exceed the simplified acquisition threshold (currently $150,000), under 2 CFR 200.205(a)(2) we must make a judgment about your integrity, business ethics, and record of performance under Federal awards—that is, the risk posed by you as an applicant—before we make an award. In doing so, we must consider any information about you that is in the integrity and performance system (currently referred to as the Federal Awardee Performance and Integrity Information System (FAPIIS)), accessible through the System for Award Management. You may review and comment on any information about yourself that a Federal agency previously entered and that is currently in FAPIIS.

    Please note that, if the total value of your currently active grants, cooperative agreements, and procurement contracts from the Federal Government exceeds $10,000,000, the reporting requirements in 2 CFR part 200, Appendix XII, require you to report certain integrity information to FAPIIS semiannually. Please review the requirements in 2 CFR part 200, Appendix XII, if this grant plus all the other Federal funds you receive exceed $10,000,000.

    VI. Award Administration Information

    1. Award Notices: If your application is successful, we notify your U.S. Representative and U.S. Senators and send you a Grant Award Notification (GAN); or we may send you an email containing a link to access an electronic version of your GAN. We may notify you informally, also.

    If your application is not evaluated or not selected for funding, we notify you.

    2. Administrative and National Policy Requirements: We identify administrative and national policy requirements in the application package and reference these and other requirements in the Applicable Regulations section of this notice.

    We reference the regulations outlining the terms and conditions of an award in the Applicable Regulations section of this notice and include these and other specific conditions in the GAN. The GAN also incorporates your approved application as part of your binding commitments under the grant.

    3. Open Licensing Requirements: Unless an exception applies, if you are awarded a grant under this competition, you will be required to openly license to the public grant deliverables created in whole, or in part, with Department grant funds. When the deliverable consists of modifications to pre-existing works, the license extends only to those modifications that can be separately identified and only to the extent that open licensing is permitted under the terms of any licenses or other legal restrictions on the use of pre-existing works. For additional information on the open licensing requirements please refer to 2 CFR 3474.20(c).

    4. Reporting: (a) If you apply for a grant under this competition, you must ensure that you have in place the necessary processes and systems to comply with the reporting requirements in 2 CFR part 170 should you receive funding under the competition. This does not apply if you have an exception under 2 CFR 170.110(b).

    (b) If you receive a grant under this competition, you must submit an annual report that complies with the reporting requirements for Credit Enhancement grantees in section 4304(h)(2) of the ESEA and the performance and financial expenditure reporting requirements in 34 CFR 75.720. At the end of your project period, you must submit a final performance report, including financial information, as directed by the Secretary. The Secretary may also require more frequent performance reports under 34 CFR 75.720(c). For specific requirements on reporting, please go to www.ed.gov/fund/grant/apply/appforms/appforms.html.

    5. Performance Measures:

    (a) Program Performance Measures. The performance measures for this program are: (1) The amount of funding grantees leverage for charter schools to acquire, construct, and renovate school facilities and (2) the number of charter schools served. Grantees must provide information that is responsive to these measures as part of their annual performance reports.

    (b) Project-Specific Performance Measures. Applicants must propose project-specific performance measures and performance targets consistent with the objectives of the project and program. Applicants must provide the following information as directed under 34 CFR 75.110(b):

    (1) Project Performance Measures. How each proposed project-specific performance measure would accurately measure the performance of the project and how the proposed project-specific performance measure would be consistent with the performance measures established for the program funding the competition.

    (2) Project Performance Targets. Why each proposed performance target is ambitious yet achievable compared to the baseline for the performance measure and when, during the project period, the applicant would meet the performance target(s).

    Note:

    The Secretary encourages applicants to consider measures and targets tied to their grant activities (for instance, if an applicant is using eligibility for free and reduced-price lunch to measure the number of low-income families served by the project, the applicant could provide a percentage for students qualifying for free and reduced-price lunch), during the grant period. The measures should be sufficient to gauge the progress throughout the grant period, and show results by the end of the grant period.

    (3) Data Collection and Reporting. (i) The data collection and reporting methods the applicant would use and why those methods are likely to yield reliable, valid, and meaningful performance data; and

    (ii) The applicant's capacity to collect and report reliable, valid, and meaningful performance data, as evidenced by high-quality data collection, analysis, and reporting in other projects or research.

    Note:

    If applicants do not have experience with collection and reporting of performance data through other projects or research, they should provide other evidence of their capacity to successfully carry out data collection and reporting for their proposed project.

    VII. Other Information

    Accessible Format: Individuals with disabilities can obtain this document and a copy of the application package in an accessible format (e.g., braille, large print, audiotape, or compact disc) on request to the program contact person listed under FOR FURTHER INFORMATION CONTACT.

    Electronic Access to This Document: The official version of this document is the document published in the Federal Register. You may access the official edition of the Federal Register and the Code of Federal Regulations via the Federal Digital System at: www.thefederalregister.org/fdsys. At this site you can view this document, as well as all other documents of this Department published in the Federal Register, in text or Portable Document Format (PDF). To use PDF you must have Adobe Acrobat Reader, which is available free at the site.

    You may also access documents of the Department published in the Federal Register by using the article search feature at: www.federalregister.gov. Specifically, through the advanced search feature at this site, you can limit your search to documents published by the Department.

    Dated: March 16, 2018. Margo Anderson, Acting Assistant Deputy Secretary for Innovation and Improvement.
    [FR Doc. 2018-05748 Filed 3-20-18; 8:45 am] BILLING CODE 4000-01-P
    DEPARTMENT OF EDUCATION Applications for New Awards; Supporting Effective Educator Development Program AGENCY:

    Office of Innovation and Improvement, Department of Education.

    ACTION:

    Notice.

    SUMMARY:

    The Department of Education is issuing a notice inviting applications for fiscal year (FY) 2018 for the Supporting Effective Educator Development (SEED) program, Catalog of Federal Domestic Assistance (CFDA) number 84.423A.

    DATES:

    Applications Available: March 21, 2018.

    Date of Informational Webinar: The SEED program intends to hold a webinar designed to provide technical assistance to interested applicants. Detailed information regarding this webinar will be provided on the SEED web page at http://innovation.ed.gov/what-we-do/teacher-quality/supporting-effective-educator-development-grant-program/.

    Deadline for Notice of Intent to Apply: April 5, 2018.

    Deadline for Transmittal of Applications: May 17, 2018.

    Deadline for Intergovernmental Review: July 19, 2018.

    ADDRESSES:

    For the addresses for obtaining and submitting an application, please refer to our Common Instructions for Applicants to Department of Education Discretionary Grant Programs, published in the Federal Register on February 12, 2018 (83 FR 6003) and available at www.thefederalregister.org/fdsys/pkg/FR-2018-02-12/pdf/2018-02558.pdf.

    FOR FURTHER INFORMATION CONTACT:

    Richard Wilson, U.S. Department of Education, 400 Maryland Avenue SW, Room 4W111, Washington, DC 20202-5960. Telephone: (202) 453-6709 or by email: [email protected]

    If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-800-877-8339.

    SUPPLEMENTARY INFORMATION:

    Full Text of Announcement I. Funding Opportunity Description

    Purpose of Program: The SEED program, authorized under section 2242 of the Elementary and Secondary Education Act of 1965 (ESEA or Act), as amended by the Every Student Succeeds Act (ESSA) (20 U.S.C. 6672),1 provides funding to increase the number of highly effective educators by supporting the implementation of Evidence-Based 2 practices that prepare, develop, or enhance the skills of educators. These grants will allow eligible entities to develop, expand, and evaluate practices that can serve as models that can be sustained and disseminated.

    1 Unless otherwise indicated, all references to the ESEA or the Act are to the ESEA, as amended by the ESSA.

    2 Throughout this notice, all defined terms are denoted with capitals.

    Priorities: This competition includes two absolute priorities, one competitive preference priority, and one invitational priority. In accordance with 34 CFR 75.105(b)(2)(iv), Absolute Priority 1, which requires moderate evidence, and Absolute Priority 2, which requires promising evidence, are from section 2242 of the ESEA (20 U.S.C. 6672) and 34 CFR 75.226. The competitive preference priority is from the Department's notice of final supplemental priorities and definitions, published in the Federal Register on March 2, 2018 (83 FR 9096) (Supplemental Priorities). Under the SEED grant competition, each of the two absolute priorities constitutes its own funding category. The Secretary intends to award grants under each absolute priority for which applications of sufficient quality are submitted.

    Absolute Priorities: For FY 2018 and any subsequent year in which we make awards from the list of unfunded applications from this competition, these priorities are absolute priorities. Under 34 CFR 75.105(c)(3), we consider only applications that meet one of these priorities. Applicants may address only one absolute priority and must clearly indicate the specific absolute priority their project addresses.

    These priorities are:

    Absolute Priority 1—Supporting Effective Teachers.

    This priority is for projects that will implement activities that are supported by Moderate Evidence. Applicants under this priority may propose one or more of the following activities:

    (1) Providing teachers from nontraditional preparation and certification routes or pathways to serve in traditionally underserved Local Educational Agencies (LEAs);

    (2) Providing teachers with Evidence-Based Professional Development activities that address literacy, numeracy, remedial, or other needs of LEAs and the students the agencies serve; or

    (3) Providing teachers with Evidence-Based professional enhancement activities, which may include activities that lead to an advanced credential.

    Note:

    An LEA includes a public charter school that operates as an LEA.

    Absolute Priority 2—Supporting Effective Principals or Other School Leaders.

    This priority is for projects that will implement activities that are supported by Promising Evidence. Applicants under this priority may propose one or more of the following activities:

    (1) Providing principals or other School Leaders from nontraditional preparation and certification routes or pathways to serve in traditionally underserved LEAs;

    (2) Providing principals or other School Leaders with Evidence-Based Professional Development activities that address literacy, numeracy, remedial, or other needs of LEAs and the students the agencies serve; or

    (3) Providing principals or other School Leaders with Evidence-Based professional enhancement activities, which may include activities that lead to an advanced credential.

    Note:

    An applicant must identify at least one but no more than two citations for the purposes of meeting the evidence requirement for the priority the applicant addresses, Moderate Evidence for Absolute Priority 1 or Promising Evidence for Absolute Priority 2. An applicant should clearly identify these citations in the Evidence form. The Department will not review a citation that an applicant fails to clearly identify for review. Studies included for review may have been conducted by the applicant or by a third party.

    In addition to including up to two citations, an applicant must provide a description of: (1) The positive outcome(s) and practice(s) the applicant intends to replicate under its SEED grant and (2) the relevance of the outcome(s) and practice(s) to the SEED program. For an applicant addressing Absolute Priority 1 to meet the definition of Moderate Evidence, the applicant must describe how the population it proposes to serve overlaps with the population or settings in the citations.

    An applicant must ensure that all evidence is available to the Department from publicly available sources and provide links or other guidance indicating where it is available. If the Department determines that an applicant has provided insufficient information, the applicant will not have an opportunity to provide additional information at a later time. However, if the What Works Clearinghouse (WWC) determines that a study does not provide enough information on key aspects of the study design, such as sample attrition or equivalence of intervention and comparison groups, the WWC will submit a query to the study author(s) to gather information for use in determining a study rating. Authors are asked to respond to queries within 10 business days. Should the author query remain incomplete within 14 days of the initial contact to the study author(s), the study will be deemed ineligible under the grant competition. After the grant competition closes, the WWC will continue to include responses to author queries and will make updates to study reviews as necessary, but no additional information will be taken into account after the competition closes and the initial timeline established for response to an author query passes.

    Competitive Preference Priority: For FY 2018 and any subsequent year in which we make awards from the list of unfunded applications from this competition, this priority is a competitive preference priority. Under 34 CFR 75.105(c)(2)(i) we award up to an additional three points to an application, depending on how well the application addresses this priority.

    This priority is:

    Promoting Science, Technology, Engineering, or Math (STEM) Education, With a Particular Focus on Computer Science.

    Projects designed to improve student achievement or other educational outcomes in one or more of the following areas: Science, technology, engineering, math, or Computer Science. These projects must address the following priority area:

    Increasing the number of educators adequately prepared to deliver rigorous instruction in STEM fields, including Computer Science, through recruitment, Evidence-Based Professional Development strategies for current STEM educators, or evidence-based retraining strategies for current educators seeking to transition from other subjects to STEM fields.

    Invitational Priority: For FY 2018 and any subsequent year in which we make awards from the list of unfunded applications from this competition, this priority is an invitational priority. Under 34 CFR 75.105(c)(1) we do not give an application that meets this invitational priority a competitive or absolute preference over other applications.

    This priority is:

    Support for the Use of Micro-Credentials.

    Under this priority, we are interested in projects that support teachers, principals, or other School Leaders earning micro-credentials based on demonstrated mastery of specific skills or competencies through the use of performance-based outcomes. The micro-credentials should be portable across schools, LEAs, or States.

    Definitions: The definition of “Evidence-Based” is from section 2242 of the ESEA (20 U.S.C. 6672) and section 8101 of the ESEA (20 U.S.C. 7801). The definitions of “Institution of Higher Education,” which incorporates by reference section 101(a) of the Higher Education Opportunity Act (20 U.S.C. 7801(a)), “Local Educational Agency,” “Professional Development,” “School Leader,” and “State Educational Agency” are from section 8101 of the ESEA (20 U.S.C. 7801). The definition of “Computer Science” is from the Supplemental Priorities. The definitions of “Experimental Study,” “Moderate Evidence,” “Project Component,” “Promising Evidence,” “Quasi-Experimental Design Study,” “Relevant Outcome,” and “What Works Clearinghouse Handbook” are from 34 CFR 77.1.

    Computer Science means the study of computers and algorithmic processes and includes the study of computing principles and theories, computational thinking, computer hardware, software design, coding, analytics, and computer applications.

    Computer science often includes computer programming or coding as a tool to create software, including applications, games, websites, and tools to manage or manipulate data; or development and management of computer hardware and the other electronics related to sharing, securing, and using digital information.

    In addition to coding, the expanding field of computer science emphasizes computational thinking and interdisciplinary problem-solving to equip students with the skills and abilities necessary to apply computation in our digital world.

    Computer science does not include using a computer for everyday activities, such as browsing the internet; use of tools like word processing, spreadsheets, or presentation software; or using computers in the study and exploration of unrelated subjects.

    Evidence-Based, when used with respect to a State, Local Educational Agency, or school activity, means an activity, strategy, or intervention that demonstrates a statistically significant effect on improving student outcomes or other Relevant Outcomes based on—

    (I) Strong evidence from at least 1 well-designed and well-implemented Experimental Study;

    (II) Moderate Evidence from at least 1 well-designed and well-implemented Quasi-Experimental Study; or

    (III) Promising Evidence from at least 1 well-designed and well-implemented correlational study with statistical controls for selection bias.

    Experimental Study means a study that is designed to compare outcomes between two groups of individuals (such as students) that are otherwise equivalent except for their assignment to either a treatment group receiving a Project Component or a control group that does not. Randomized controlled trials, regression discontinuity design studies, and single-case design studies are the specific types of experimental studies that, depending on their design and implementation (e.g., sample attrition in randomized controlled trials and regression discontinuity design studies), can meet What Works Clearinghouse (WWC) standards without reservations as described in the WWC Handbook:

    (i) A randomized controlled trial employs random assignment of, for example, students, teachers, classrooms, or schools to receive the Project Component being evaluated (the treatment group) or not to receive the Project Component (the control group).

    (ii) A regression discontinuity design study assigns the Project Component being evaluated using a measured variable (e.g., assigning students reading below a cutoff score to tutoring or developmental education classes) and controls for that variable in the analysis of outcomes.

    (iii) A single-case design study uses observations of a single case (e.g., a student eligible for a behavioral intervention) over time in the absence and presence of a controlled treatment manipulation to determine whether the outcome is systematically related to the treatment.

    Institution of Higher Education means an educational institution in any State that—

    (a) Admits as regular students only persons having a certificate of graduation from a school providing secondary education, or the recognized equivalent of such a certificate, or persons who meet the requirements of section 484(d) of the Higher Education Act of 1965, as amended (HEA);

    (b) Is legally authorized within such State to provide a program of education beyond secondary education;

    (c) Provides an educational program for which the institution awards a bachelor's degree or provides not less than a 2-year program that is acceptable for full credit toward such a degree, or awards a degree that is acceptable for admission to a graduate or professional degree program, subject to review and approval by the Secretary;

    (d) Is a public or other nonprofit institution; and

    (e) Is accredited by a nationally recognized accrediting agency or association, or if not so accredited, is an institution that has been granted preaccreditation status by such an agency or association that has been recognized by the Secretary for the granting of preaccreditation status, and the Secretary has determined that there is satisfactory assurance that the institution will meet the accreditation standards of such an agency or association within a reasonable time.

    Local Educational Agency (LEA) means:

    (a) In General. A public board of education or other public authority legally constituted within a State for either administrative control or direction of, or to perform a service function for, public elementary schools or secondary schools in a city, county, township, school district, or other political subdivision of a State, or of or for a combination of school districts or counties that is recognized in a State as an administrative agency for its public elementary schools or secondary schools.

    (b) Administrative Control and Direction. The term includes any other public institution or agency having administrative control and direction of a public elementary school or secondary school.

    (c) Bureau of Indian Education Schools. The term includes an elementary school or secondary school funded by the Bureau of Indian Education but only to the extent that including the school makes the school eligible for programs for which specific eligibility is not provided to the school in another provision of law and the school does not have a student population that is smaller than the student population of the LEA receiving assistance under the ESEA with the smallest student population, except that the school shall not be subject to the jurisdiction of any SEA other than the Bureau of Indian Education.

    (d) Educational Service Agencies. The term includes educational service agencies and consortia of those agencies.

    (e) State Educational Agency. The term includes the SEA in a State in which the SEA is the sole educational agency for all public schools.

    Moderate Evidence means that there is evidence of effectiveness of a key Project Component in improving a Relevant Outcome for a sample that overlaps with the populations or settings proposed to receive that component, based on a relevant finding from one of the following:

    (i) A practice guide prepared by the WWC using version 2.1 or 3.0 of the WWC Handbook reporting a “strong evidence base” or “moderate evidence base” for the corresponding practice guide recommendation;

    (ii) An intervention report prepared by the WWC using version 2.1 or 3.0 of the WWC Handbook reporting a “positive effect” or “potentially positive effect” on a Relevant Outcome based on a “medium to large” extent of evidence, with no reporting of a “negative effect” or “potentially negative effect” on a Relevant Outcome; or

    (iii) A single Experimental Study or Quasi-Experimental Design Study reviewed and reported by the WWC using version 2.1 or 3.0 of the WWC Handbook, or otherwise assessed by the Department using version 3.0 of the WWC Handbook, as appropriate, and that—

    (A) Meets WWC standards with or without reservations;

    (B) Includes at least one statistically significant and positive (i.e., favorable) effect on a Relevant Outcome;

    (C) Includes no overriding statistically significant and negative effects on Relevant Outcomes reported in the study or in a corresponding WWC intervention report prepared under version 2.1 or 3.0 of the WWC Handbook; and

    (D) Is based on a sample from more than one site (e.g., State, county, city, school district, or postsecondary campus) and includes at least 350 students or other individuals across sites. Multiple studies of the same Project Component that each meet requirements in paragraphs (iii)(A), (B), and (C) of this definition may together satisfy this requirement.

    Professional Development means activities that—

    (a) Are an integral part of school and LEA strategies for providing educators (including teachers, principals, other School Leaders, specialized instructional support personnel, paraprofessionals, and, as applicable, early childhood educators) with the knowledge and skills necessary to enable students to succeed in a well-rounded education and to meet the challenging State academic standards; and

    (b) Are sustained (not stand-alone, 1-day, or short term workshops), intensive, collaborative, job-embedded, data-driven, and classroom-focused, and may include activities that—

    (i) Improve and increase teachers': (1) Knowledge of the academic subjects the teachers teach; (2) understanding of how students learn; and (3) ability to analyze student work and achievement from multiple sources, including how to adjust instructional strategies, assessments, and materials based on such analysis;

    (ii) Are an integral part of broad schoolwide and districtwide educational improvement plans;

    (iii) Allow personalized plans for each educator to address the educator's specific needs identified in observation or other feedback;

    (iv) Improve classroom management skills;

    (v) Support the recruitment, hiring, and training of effective teachers, including teachers who became certified through State and local alternative routes to certification;

    (vi) Advance teacher understanding of: (1) Effective instructional strategies that are Evidence-Based; and (2) strategies for improving student academic achievement or substantially increasing the knowledge and teaching skills of teachers;

    (vii) Are aligned with, and directly related to, academic goals of the school or LEA;

    (viii) Are developed with extensive participation of teachers, principals, other School Leaders, parents, representatives of Indian Tribes (as applicable), and administrators of schools to be served under this Act;

    (ix) Are designed to give teachers of English learners, and other teachers and instructional staff, the knowledge and skills to provide instruction and appropriate language and academic support services to those children, including the appropriate use of curricula and assessments;

    (x) To the extent appropriate, provide training for teachers, principals, and other School Leaders in the use of technology (including education about the harms of copyright piracy), so that technology and technology applications are effectively used in the classroom to improve teaching and learning in the curricula and academic subjects in which the teachers teach;

    (xi) As a whole, are regularly evaluated for their impact on increased teacher effectiveness and improved student academic achievement, with the findings of the evaluations used to improve the quality of professional development;

    (xii) Are designed to give teachers of children with disabilities or children with developmental delays, and other teachers and instructional staff, the knowledge and skills to provide instruction and academic support services, to those children, including positive behavioral interventions and supports, multi-tier system of supports, and use of accommodations;

    (xiii) Include instruction in the use of data and assessments to inform and instruct classroom practice;

    (xiv) Include instruction in ways that teachers, principals, other School Leaders, specialized instructional support personnel, and school administrators may work more effectively with parents and families;

    (xv) Involve the forming of partnerships with Institutions of Higher Education, including, as applicable, Tribal Colleges and Universities as defined in section 316(b) of the HEA (20 U.S.C. 1059c(b)), to establish school-based teacher, principal, and other School Leader training programs that provide prospective teachers, novice teachers, principals, and other School Leaders with an opportunity to work under the guidance of experienced teachers, principals, other School Leaders, and faculty of such institutions;

    (xvi) Create programs to enable paraprofessionals (assisting teachers employed by an LEA receiving assistance under part A of title I of the ESEA) to obtain the education necessary for those paraprofessionals to become certified and licensed teachers;

    (xvii) Provide follow-up training to teachers who have participated in activities described in paragraph (b) of this definition that are designed to ensure that the knowledge and skills learned by the teachers are implemented in the classroom; and

    (xviii) Where practicable, provide jointly for school staff and other early childhood education program providers, to address the transition to elementary school, including issues related to school readiness.

    Project Component means an activity, strategy, intervention, process, product, practice, or policy included in a project. Evidence may pertain to an individual project component or to a combination of project components (e.g., training teachers on instructional practices for English learners and follow-on coaching for these teachers).

    Promising Evidence means that there is evidence of the effectiveness of a key Project Component in improving a Relevant Outcome, based on a relevant finding from one of the following:

    (i) A practice guide prepared by WWC reporting a “strong evidence base” or “moderate evidence base” for the corresponding practice guide recommendation;

    (ii) An intervention report prepared by the WWC reporting a “positive effect” or “potentially positive effect” on a Relevant Outcome with no reporting of a “negative effect” or “potentially negative effect” on a Relevant Outcome; or

    (iii) A single study assessed by the Department, as appropriate, that—

    (A) Is an Experimental Study, a Quasi-Experimental Design Study, or a well-designed and well-implemented correlational study with statistical controls for selection bias (e.g., a study using regression methods to account for differences between a treatment group and a comparison group); and

    (B) Includes at least one statistically significant and positive (i.e., favorable) effect on a Relevant Outcome.

    Quasi-Experimental Design Study means a study using a design that attempts to approximate an Experimental Study by identifying a comparison group that is similar to the treatment group in important respects. This type of study, depending on design and implementation (e.g., establishment of baseline equivalence of the groups being compared), can meet WWC standards with reservations, but cannot meet WWC standards without reservations, as described in the WWC Handbook.

    Relevant Outcome means the student outcome(s) or other outcome(s) the key Project Component is designed to improve, consistent with the specific goals of the program.

    School Leader means a principal, assistant principal, or other individual who is—

    (a) An employee or officer of an elementary school or secondary school, LEA, or other entity operating an elementary school or secondary school; and

    (b) Responsible for the daily instructional leadership and managerial operations in the elementary school or secondary school building.

    State Educational Agency (SEA) means the agency primarily responsible for the State supervision of public elementary schools and secondary schools.

    What Works Clearinghouse Handbook (WWC Handbook) means the standards and procedures set forth in the WWC Procedures and Standards Handbook, Version 3.0 or Version 2.1 (incorporated by reference, see 34 CFR 77.2). Study findings eligible for review under WWC standards can meet WWC standards without reservations, meet WWC standards with reservations, or not meet WWC standards. WWC practice guides and intervention reports include findings from systematic reviews of evidence as described in the Handbook documentation.

    Program Authority:

    Section 2242 of the ESEA (20 U.S.C. 6672).

    Applicable Regulations: (a) The Education Department General Administrative Regulations in 34 CFR parts 75, 77, 79, 81, 82, 84, 86, 97, 98, and 99. (b) The Office of Management and Budget Guidelines to Agencies on Governmentwide Debarment and Suspension (Nonprocurement) in 2 CFR part 180, as adopted and amended as regulations of the Department in 2 CFR part 3485. (c) The Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards in 2 CFR part 200, as adopted and amended as regulations of the Department in 2 CFR part 3474. (d) The Supplemental Priorities.

    Note:

    The regulations in 34 CFR part 86 apply to Institutions of Higher Education only.

    II. Award Information

    Type of Award: Discretionary grants.

    Estimated Available Funds: The Administration's budget request for FY 2018 does not include funds for new awards under this program. However, we are inviting applications to allow sufficient time to complete the grant process before the end of the current fiscal year, if Congress appropriates funds for this program.

    Contingent upon the availability of funds and the quality of applications, we may make additional awards in subsequent years from the list of unfunded applications from this competition.

    Estimated Range of Awards: $1,000,000-$6,000,000 per project year.

    Estimated Average Size of Awards: $3,500,000 per project year.

    Estimated Number of Awards: 5-8.

    Note:

    The Department is not bound by any estimates in this notice.

    Project Period: Up to 36 months, with renewal of up two additional years.

    III. Eligibility Information

    1. Eligible Applicants:

    (a) An Institution of Higher Education that provides course materials or resources that are Evidence-Based in increasing academic achievement, graduation rates, or rates of postsecondary education matriculation;

    (b) A national nonprofit organization with a demonstrated record of raising student academic achievement, graduation rates, and rates of higher education attendance, matriculation, or completion, or of effectiveness in providing preparation and Professional Development activities and programs for teachers, principals, or other School Leaders;

    (c) The Bureau of Indian Education; or

    (d) A partnership consisting of—

    (i) One or more entities described in paragraph (a) or (b); and

    (ii) A for-profit entity.

    2. a. Cost Sharing or Matching: Under section 2242 of the ESEA, each grant recipient must provide, from non-Federal sources, at least 25 percent of the funds for the total cost for each year of activities supported by the grant. These funds may be provided in cash or through in-kind contributions. Grantees must include a budget showing their matching contributions on an annual basis relative to the annual budget amount of SEED grant funds and must provide evidence of their matching contributions for the first year of the grant in their grant applications.

    Section 2242 of the ESEA also authorizes the Secretary to waive this matching requirement on a case-by-case basis in cases of demonstrated financial hardship. Applicants that wish to apply for a waiver must include a request in their application that demonstrates a financial hardship.

    Further information about applying for waivers can be found in the application package. However, given the importance of matching funds to the long-term success of the project, the Secretary expects eligible entities to identify appropriate matching funds.

    b. Supplement-Not-Supplant: This program involves supplement-not-supplant funding requirements. Under section 2301 of the ESEA (20 U.S.C. 6691), funds made available under title II of the ESEA must be used to supplement, and not supplant, non-Federal funds that would otherwise be used for activities authorized under this title. Further, the prohibition against supplanting funds also means that grantees seeking to charge indirect costs to SEED funds will need to use their negotiated restricted indirect cost rates. See 34 CFR 75.563.

    3. Subgrantees: (a) Under 34 CFR 75.708(b) and (c) a grantee under this competition may award subgrants—to directly carry out project activities described in its application—to the following types of entities: LEAs, public entities, and private entities suitable to carry out the activities proposed in the application.

    (b) The grantee may award subgrants to entities it has identified in an approved application or under procedures established by the grantee.

    4. Certification: Pursuant to section 2242 of the ESEA (20 U.S.C. 6672), applicants must include a certification that the services provided by an eligible entity under the grant to a LEA or to a school served by the LEA will not result in direct fees for participating students or parents.

    IV. Application and Submission Information

    1. Application Submission Instructions: For information on how to submit an application please refer to our Common Instructions for Applicants to Department of Education Discretionary Grant Programs, published in the Federal Register on February 12, 2018 (83 FR 6003) and available at www.thefederalregister.org/fdsys/pkg/FR-2018-02-12/pdf/2018-02558.pdf.

    2. Submission of Proprietary Information: Given the types of projects that may be proposed in applications for the SEED program, your application may include business information that you consider proprietary. In 34 CFR 5.11 we define “business information” and describe the process we use in determining whether any of that information is proprietary and, thus, protected from disclosure under Exemption 4 of the Freedom of Information Act (5 U.S.C. 552, as amended).

    Because we plan to make successful applications available to the public, you may wish to request confidentiality of business information.

    Consistent with Executive Order 12600, please designate in your application any information that you feel is exempt from disclosure under Exemption 4. In the appropriate Appendix section of your application, under “Other Attachments Form,” please list the page number or numbers on which we can find this information. For additional information please see 34 CFR 5.11(c).

    3. Intergovernmental Review: This competition is subject to Executive Order 12372 and the regulations in 34 CFR part 79. Information about Intergovernmental Review of Federal Programs under Executive Order 12372 is in the application package for this competition.

    4. Funding Restrictions: We reference regulations outlining funding restrictions in the Applicable Regulations section of this notice.

    5. Recommended Page Limit: The application narrative is where you, the applicant, address the selection criteria that reviewers use to evaluate your application. We recommend that you (1) limit the application narrative to 40 pages and (2) use the following standards:

    • A “page” is 8.5″ x 11″, on one side only, with 1″ margins at the top, bottom, and both sides.

    • Double space (no more than three lines per vertical inch) all text in the application narrative, including titles, headings, footnotes, quotations, references, and captions, as well as all text in charts, tables, figures, and graphs.

    • Use a font that is either 12 point or larger or no smaller than 10 pitch (characters per inch).

    • Use one of the following fonts: Times New Roman, Courier, Courier New, or Arial.

    The recommended page limit does not apply to Part I, the cover sheet; Part II, the budget section, including the narrative budget justification; Part IV, the assurances and certifications; or the one-page abstract, the resumes, the bibliography, or the letters of support. However, the recommended page limit does apply to all of the application narrative.

    V. Application Review Information

    1. Selection Criteria: The selection criteria for this competition are from 34 CFR 75.210. An applicant may earn up to a total of 100 points based on the selection criteria. The maximum score for each criterion is indicated in parentheses. Each criterion also includes the sub-factors that the reviewers will consider in determining how well an application meets the criterion. The criteria are as follows:

    A. Quality of the Project Design (35 points). The Secretary considers the quality of the design of the proposed project. In determining the quality of the design of the proposed project, the Secretary considers the following factors:

    (1) The extent to which the proposed project represents an exceptional approach to the priority or priorities established for the competition.

    (2) The extent to which the training or Professional Development services to be provided by the proposed project are of sufficient quality, intensity, and duration to lead to improvements in practice among the recipients of those services.

    (3) The extent to which the services to be provided by the proposed project involve the collaboration of appropriate partners for maximizing the effectiveness of project services.

    (4) The extent to which the services to be provided by the proposed project are focused on those with greatest needs.

    (5) The extent to which the design of the proposed project is appropriate to, and will successfully address, the needs of the target population or other identified needs.

    B. Significance (20 points). The Secretary considers the significance of the proposed project. In determining the significance of the proposed project, the Secretary considers the following factors:

    (1) The importance or magnitude of the results or outcomes likely to be attained by the proposed project, especially improvements in teaching and student achievement.

    (2) The extent to which the costs are reasonable in relation to the number of persons to be served and to the anticipated results and benefits.

    (3) The potential for the incorporation of project purposes, activities, or benefits into the ongoing program of the agency or organization at the end of Federal funding.

    (4) The extent to which the results of the proposed project are to be disseminated in ways that will enable others to use the information or strategies.

    C. Quality of the Management Plan (25 points). The Secretary considers the quality of the management plan for the proposed project. In determining the quality of the management plan for the proposed project, the Secretary considers the following factors:

    (1) The extent to which the goals, objectives, and outcomes to be achieved by the proposed project are clearly specified and measurable.

    (2) The adequacy of the management plan to achieve the objectives of the proposed project on time and within budget, including clearly defined responsibilities, timelines, and milestones for accomplishing project tasks.

    (3) The adequacy of procedures for ensuring feedback and continuous improvement in the operation of the proposed project.

    D. Quality of the Project Evaluation (20 points). The Secretary considers the quality of the evaluation to be conducted of the proposed project. In determining the quality of the evaluation, the Secretary considers the following factors:

    (1) The extent to which the methods of evaluation will, if well implemented, produce evidence about the project's effectiveness that would meet the WWC standards with or without reservations as described in the WWC Handbook.

    (2) The extent to which the methods of evaluation will provide performance feedback and permit periodic assessment of progress toward achieving intended outcomes.

    (3) The extent to which the methods of evaluation include the use of objective performance measures that are clearly related to the intended outcomes of the project and will produce quantitative and qualitative data to the extent possible.

    (4) The extent to which the methods of evaluation will provide valid and reliable performance data on Relevant Outcomes.

    Note:

    Applicants may wish to review the following technical assistance resources on evaluation: (1) WWC Procedures and Standards Handbooks: https://ies.ed.gov/ncee/wwc/Handbooks (2) “Technical Assistance Materials for Conducting Rigorous Impact Evaluations”: http://ies.ed.gov/ncee/projects/evaluationTA.asp; and (3) IES/NCEE Technical Methods papers: http://ies.ed.gov/ncee/tech_methods/. In addition, applicants may view two optional webinar recordings that were hosted by the Institute of Education Sciences. The first webinar discussed strategies for designing and executing well-designed Quasi-Experimental Design Studies and is available at: http://ies.ed.gov/ncee/wwc/Multimedia.aspx?sid=23. The second webinar focused on more rigorous evaluation designs, discussing strategies for designing and executing studies that meet WWC evidence standards without reservations. This webinar is available at: http://ies.ed.gov/ncee/wwc/Multimedia.aspx?sid=18.

    2. Review and Selection Process: We remind potential applicants that in reviewing applications in any discretionary grant competition, the Secretary may consider, under 34 CFR 75.217(d)(3), the past performance of the applicant in carrying out a previous award, such as the applicant's use of funds, achievement of project objectives, and compliance with grant conditions. The Secretary may also consider whether the applicant failed to submit a timely performance report or submitted a report of unacceptable quality.

    In addition, in making a competitive grant award, the Secretary requires various assurances, including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).

    Additional factors we consider in selecting an application for an award are as follows:

    (a) As required under section 2242 of the ESEA, the Secretary must ensure that, to the extent practicable, grants are distributed among eligible entities that will serve geographically diverse areas, including urban, suburban, and rural areas.

    (b) As required under section 2242 of the ESEA, the Department must not award more than one grant under this program to an eligible entity during a grant competition. If an entity submits multiple applications for this competition, only the highest rated application will be considered for an award.

    3. Risk Assessment and Special Conditions: Consistent with 2 CFR 200.205, before awarding grants under this competition the Department conducts a review of the risks posed by applicants. Under 2 CFR 3474.10, the Secretary may impose special conditions and, in appropriate circumstances, high-risk conditions on a grant if the applicant or grantee is not financially stable; has a history of unsatisfactory performance; has a financial or other management system that does not meet the standards in 2 CFR part 200, subpart D; has not fulfilled the conditions of a prior grant; or is otherwise not responsible.

    4. Integrity and Performance System: If you are selected under this competition to receive an award that over the course of the project period may exceed the simplified acquisition threshold (currently $150,000), under 2 CFR 200.205(a)(2), we must make a judgment about your integrity, business ethics, and record of performance under Federal awards—that is, the risk posed by you as an applicant—before we make an award. In doing so, we must consider any information about you that is in the integrity and performance system (currently referred to as the Federal Awardee Performance and Integrity Information System (FAPIIS)), accessible through the System for Award Management. You may review and comment on any information about yourself that a Federal agency previously entered and that is currently in FAPIIS.

    Please note that, if the total value of your currently active grants, cooperative agreements, and procurement contracts from the Federal Government exceeds $10,000,000, the reporting requirements in 2 CFR part 200, Appendix XII, require you to report certain integrity information to FAPIIS semiannually. Please review the requirements in 2 CFR part 200, Appendix XII, if this grant plus all the other Federal funds you receive exceed $10,000,000.

    VI. Award Administration Information

    1. Award Notices: If your application is successful, we notify your U.S. Representative and U.S. Senators and send you a Grant Award Notification (GAN); or we may send you an email containing a link to access an electronic version of your GAN. We may notify you informally, also.

    If your application is not evaluated or not selected for funding, we notify you.

    2. Administrative and National Policy Requirements: We identify administrative and national policy requirements in the application package and reference these and other requirements in the Applicable Regulations section of this notice.

    We reference the regulations outlining the terms and conditions of an award in the Applicable Regulations section of this notice and include these and other specific conditions in the GAN. The GAN also incorporates your approved application as part of your binding commitments under the grant.

    3. Open Licensing Requirements: Unless an exception applies, if you are awarded a grant under this competition, you will be required to openly license to the public grant deliverables created in whole, or in part, with Department grant funds. When the deliverable consists of modifications to pre-existing works, the license extends only to those modifications that can be separately identified and only to the extent that open licensing is permitted under the terms of any licenses or other legal restrictions on the use of pre-existing works. For additional information on the open licensing requirements please refer to 2 CFR 3474.20(c).

    4. Reporting: (a) If you apply for a grant under this competition, you must ensure that you have in place the necessary processes and systems to comply with the reporting requirements in 2 CFR part 170 should you receive funding under the competition. This does not apply if you have an exception under 2 CFR 170.110(b).

    (b) At the end of your project period, you must submit a final performance report, including financial information, as directed by the Secretary. If you receive a multiyear award, you must submit an annual performance report that provides the most current performance and financial expenditure information as directed by the Secretary under 34 CFR 75.118. The Secretary may also require more frequent performance reports under 34 CFR 75.720(c). For specific requirements on reporting, please go to www.ed.gov/fund/grant/apply/appforms/appforms.html.

    (c) Under 34 CFR 75.250(b), the Secretary may provide a grantee with additional funding for data collection analysis and reporting. In this case the Secretary establishes a data collection period.

    5. Performance Measures: The overall purpose of the SEED program is to increase the number of highly effective educators by supporting Evidence-Based projects that prepare or provide Professional Development or enhancement activities for teachers, principals, or other School Leaders. We have established the following performance measures for the SEED program: (a) The percentage of teacher, principal, or other School Leader participants who serve concentrations of high-need students; (b) the percentage of teacher and principal participants who serve concentrations of high-need students and are highly effective; (c) the percentage of teacher and principal participants who serve concentrations of high-need students, are highly effective, and serve for at least two years; (d) the cost per such participant; and (e) the number of grantees with evaluations that meet the WWC standards with reservations. Grantees will report annually on each measure.

    6. Continuation Awards: In making a continuation award under 34 CFR 75.253, the Secretary considers, among other things: Whether a grantee has made substantial progress in achieving the goals and objectives of the project; whether the grantee has expended funds in a manner that is consistent with its approved application and budget; and, if the Secretary has established performance measurement requirements, the performance targets in the grantee's approved application.

    In making a continuation award, the Secretary also considers whether the grantee is operating in compliance with the assurances in its approved application, including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).

    VII. Other Information

    Accessible Format: Individuals with disabilities can obtain this document and a copy of the application package in an accessible format (e.g., braille, large print, audiotape, or compact disc) on request to the program contact person listed under FOR FURTHER INFORMATION CONTACT.

    Electronic Access to This Document: The official version of this document is the document published in the Federal Register. You may access the official edition of the Federal Register and the Code of Federal Regulations via the Federal Digital System at: www.thefederalregister.org/fdsys. At this site you can view this document, as well as all other documents of this Department published in the Federal Register, in text or Portable Document Format (PDF). To use PDF you must have Adobe Acrobat Reader, which is available free at the site.

    You may also access documents of the Department published in the Federal Register by using the article search feature at: www.federalregister.gov. Specifically, through the advanced search feature at this site, you can limit your search to documents published by the Department.

    Dated: March 16, 2018. Margo Anderson, Acting Assistant Deputy Secretary for Innovation and Improvement.
    [FR Doc. 2018-05750 Filed 3-20-18; 8:45 am] BILLING CODE 4000-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. PL17-1-000] Inquiry Regarding the Commission's Policy for Recovery of Income Tax Costs AGENCY:

    Federal Energy Regulatory Commission.

    ACTION:

    Revised policy statement.

    SUMMARY:

    Following the decision of the U.S. Court of Appeals for the District of Columbia Circuit in United Airlines, Inc., et al. v. Federal Energy Regulatory Commission, the Commission issued a notice of inquiry (NOI) seeking comment regarding how to address any double recovery resulting from the Commission's current income tax allowance and rate of return policies. The Commission finds that an impermissible double recovery results from granting a Master Limited Partnership (MLP) pipeline both an income tax allowance and a return on equity pursuant to the discounted cash flow methodology. Accordingly, the Commission revises its policy and will no longer permit an MLP to recover an income tax allowance in its cost of service. While all partnerships seeking to recover an income tax allowance will need to address the double-recovery concern, the Commission will address the application of United Airlines to non-MLP partnership forms as those issues arise in subsequent proceedings.

    DATES:

    This Revised Policy Statement will become applicable March 21, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Glenna Riley (Legal Information), Office of the General Counsel, 888 First Street NE, Washington, DC 20426, (202) 502-8620, [email protected] Andrew Knudsen (Legal Information), Office of the General Counsel, 888 First Street NE, Washington, DC 20426, (202) 502-6527, [email protected]. James Sarikas (Technical Information), Office of Energy Markets Regulation, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, (202) 502-6831, [email protected] Scott Everngam (Technical Information), Office of Energy Markets Regulation, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, (202) 502-6614, [email protected] SUPPLEMENTARY INFORMATION:

    Before Commissioners: Kevin J. McIntyre, Chairman; Cheryl A. LaFleur, Neil Chatterjee, Robert F. Powelson, and Richard Glick.

    1. On December 15, 2016, the Commission issued a Notice of Inquiry (NOI) 1 following the decision of the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) in United Airlines. 2 In that decision, the D.C. Circuit held that the Commission failed to demonstrate that there was no double recovery of income tax costs when permitting SFPP, L.P. (SFPP), a master limited partnership (MLP),3 to recover both an income tax allowance and a return on equity (ROE) determined pursuant to the discounted cash flow (DCF) methodology. The NOI sought comments regarding the double-recovery concern.

    1Inquiry Regarding the Commission's Policy for Recovery of Income Tax Costs, 157 FERC ¶ 61,210 (2016), 81 FR 94366 (December 23, 2016) (NOI).

    2United Airlines, Inc., v. FERC, 827 F.3d 122, 134, 136 (D.C. Cir. 2016) (United Airlines).

    3 An MLP is a publicly traded partnership under the Internal Revenue Code that receives at least 90 percent of its income from certain qualifying sources, including gas and oil transportation. See 26 U.S.C. 7704; NOI, 157 FERC ¶ 61,210 at PP 4-7. At the time of SFPP's rate filing, Kinder Morgan Energy Partners (KMEP), an MLP, indirectly owned a 99 percent general partner interest in SFPP. SFPP, L.P., Opinion No. 511, 134 FERC ¶ 61,121, at P 74 (2011).

    2. As explained below, the Commission revises the 2005 Income Tax Policy Statement 4 and will no longer permit MLPs to recover an income tax allowance in their cost of service. To the extent the comments in this proceeding raise arguments that an MLP pipeline should continue to receive an income tax allowance, those comments fail (a) to undermine the conclusion that a double recovery results from granting an MLP both an income tax allowance and a DCF ROE or (b) to justify preserving an income tax allowance notwithstanding such a double recovery. Consistent with this policy, the Commission is concurrently issuing a Remand Order 5 denying SFPP an income tax allowance in response to United Airlines.

    4Policy Statement on Income Tax Allowances, 111 FERC ¶ 61,139 (2005), 70 FR 25818 (May 16, 2005) (2005 Income Tax Policy Statement).

    5 SFPP, L.P., Opinion No. 511-C, 162 FERC ¶ 61,228 (2018) (Remand Order).

    3. In addition, this record does not provide a basis for addressing the United Airlines double-recovery issue for the innumerable partnership and other pass-through business forms that are not MLPs like SFPP. While all partnerships seeking to recover an income tax allowance will need to address the double-recovery concern, the Commission will address the application of United Airlines to non-MLP partnership or other pass-through business forms as those issues arise in subsequent proceedings.

    I. Background

    4. Prior to United Airlines, the Commission's 2005 Income Tax Policy Statement allowed all partnership entities (including MLPs, such as SFPP) to recover an income tax allowance for the partners' tax costs much like a corporation receives an income tax allowance for its corporate income tax costs.6 The Commission explained that while a partnership itself does not pay taxes, the partners pay income taxes based upon the partnership income and these partner-level taxes could be imputed to the pipeline.7

    6 2005 Income Tax Policy Statement, 111 FERC ¶ 61,139. The Commission's policy permits an income tax allowance, provided that the owners can show an actual or potential income tax liability to be paid on income from the regulated assets.

    7Id.

    5. Alongside this income tax policy, the Commission has used the DCF methodology to determine the rate of return regulated entities need to attract capital.8 Under the DCF methodology, the required rate of return is estimated to equal a corporate investor's current dividend yield (dividends divided by share price) plus the projected future growth rate of dividends, such that k = D/P + g.9 Similarly, for an MLP, the Commission uses the same formula, substituting unitholder distributions for dividends, unit price for share price, and using a lower long-term growth rate.10

    8United Airlines, 827 F.3d at 136; Coakley v. Bangor Hydro-Electric Co., Opinion No. 531, 147 FERC ¶ 61,234, at P 14 (2014). The Supreme Court has stated that “the return to the equity owner should be commensurate with the return on investments in other enterprises having corresponding risks. That return, moreover, should be sufficient to assure confidence in the financial integrity of the enterprise, so as to maintain its credit and to attract capital.” FPC v. Hope Natural Gas Co., 320 U.S. 591 (1944); Bluefield Water Works & Improvement Co. v. Public Service Comm'n, 262 U.S. 679 (1923).

    9 Where P is the price of the stock at the relevant time, D is the current dividend, k is the investors' required rate of return, and g is the expected growth rate in dividends. When a regulated entity is a wholly owned subsidiary and not publicly-traded, the Commission applies the DCF formula to other publicly-traded entities in a proxy group, and, based typically upon the median of the range of returns in the proxy group, the Commission determines the regulated entity's allowed ROE.

    10Composition of Proxy Groups for Determining Gas and Oil Pipeline Return on Equity, 123 FERC ¶ 61,048, at P 6 (2008) (Proxy Group Policy Statement).

    6. In addressing SFPP's West Line rate case filed in 2008, the Commission applied its 2005 policy that allows a partnership to recover an income tax allowance.11 In United Airlines, the D.C. Circuit remanded the Commission's application of this policy, holding that the Commission failed to adequately explain why a double recovery did not result from allowing SFPP to recover both an income tax allowance and a ROE determined by the Commission's DCF methodology.12 Accordingly, the D.C. Circuit remanded the decisions to the Commission to consider “mechanisms for which the Commission can demonstrate that there is no double recovery.” 13

    11 Opinion No. 511, 134 FERC ¶ 61,121, order on reh'g, Opinion No. 511-A, 137 FERC ¶ 61,220 (2011), order on reh'g, Opinion No. 511-B, 150 FERC ¶ 61,096 (2015).

    12United Airlines marks the third time the D.C. Circuit has reviewed the Commission's income tax allowance policy with respect to partnership entities. See BP West Coast Products, LLC v. FERC, 374 F.3d 1263 (D.C. Cir. 2004); ExxonMobil Oil Corp. v. FERC, 487 F.3d 945 (D.C. Cir. 2007).

    13United Airlines, 827 F.3d at 137. The D.C. Circuit did not restrict the Commission's policy options, but, among other possibilities, it noted that the Commission could consider removing any duplicative tax recovery for partnerships directly from the DCF ROE, or eliminating all income tax allowances and setting rates based on pre-tax returns. Id.

    7. In response, the Commission issued the December 2016 NOI, soliciting comments on how to resolve any double recovery resulting from the 2005 Income Tax Policy Statement and rate of return policies. The Commission received 24 comments and 19 reply comments from customer, pipeline, and electric utility interests.

    II. Discussion

    8. This Revised Policy Statement explains the Commission's conclusion following United Airlines that an impermissible double recovery results from granting an MLP pipeline both an income tax allowance and a DCF ROE. Accordingly, the Commission will no longer permit MLPs to recover an income tax allowance in their cost of service. Therefore, the Commission instructs oil pipelines organized as MLPs to reflect the Commission's elimination of the MLP income tax allowance in their Form No. 6, page 700 reporting. Based upon this page 700 data, the Commission will incorporate the effects of this Revised Policy on industry-wide oil pipeline costs in the 2020 five-year review of the oil pipeline index level. The Commission is also concurrently issuing a Notice of Proposed Rulemaking that addresses the effects of this Revised Policy on the rates of interstate natural gas pipelines organized as MLPs.14 For those partnerships that are not MLPs, the Commission will address such matters in subsequent proceedings.

    14Interstate and Intrastate Natural Gas Pipelines; Rate Changes Relating to Federal Income Tax Rate, 162 FERC ¶ 61,226 (2018).

    A. An Impermissible Double Recovery Results From Granting an MLP Pipeline Both an Income Tax Allowance and a DCF ROE

    9. While some of the comments in this proceeding argue that no double recovery results from granting an income tax allowance to an MLP, none of these arguments are persuasive. As the Commission explains in the Remand Order, a double recovery results from granting an MLP an income tax allowance and a DCF ROE:

    • MLPs and similar pass-through entities do not incur income taxes at the entity level.15 Instead, the partners are individually responsible for paying taxes on their allocated share of the partnership's taxable income.16

    15United Airlines, 827 F.3d at 136.

    16 2005 Income Tax Policy Statement, 111 FERC ¶ 61,139 at P 33; see also ExxonMobil, 487 F.3d at 954 (noting that “investors in a limited partnership are required to pay tax on their distributive shares of the partnership income, even if they do not receive a cash distribution”). In contrast, corporations pay entity-level income taxes, and corporate dividends are second tier income to a common stock investor, not analogous to partnership distributions.

    • The DCF methodology estimates the returns a regulated entity must provide to investors in order to attract capital.17

    17See Coakley v. Bangor Hydro-Electric Co., Opinion No. 531, 147 FERC ¶ 61,234 at P 14.

    • To attract capital, entities in the market must provide investors a pre-tax return, i.e., a return that covers investor-level taxes and leaves sufficient remaining income to earn investors' required after-tax return.18 In other words, because investors must pay taxes from any earnings received from the partnership, the DCF return must be sufficient both to cover the investor's tax costs and to provide the investor a sufficient after-tax ROE.

    18Kern River Transmission Co., Opinion No. 486-B, 126 FERC ¶ 61,034, at P 114 (2009) (“investors invest on the basis of after-tax returns and price an instrument accordingly”).

    • The DCF methodology “determines the pre-tax investor return required to attract investment.” 19

    19United Airlines, 827 F.3d at 136 (emphasis added).

    Given that the DCF return is a “pre-tax return,” permitting an MLP to recover both an income tax allowance and a DCF ROE leads to a double recovery of the MLP's income tax costs.20

    20Id. at 137.

    10. This Revised Policy Statement addresses comments responding to the NOI asserting that (a) granting an MLP an income tax allowance does not cause a double recovery or (b) notwithstanding the existence of a double recovery, MLPs should continue to receive an income tax allowance. As discussed below, these arguments are unavailing.

    1. A Double Recovery Results From Granting an MLP Both an Income Tax Allowance and a DCF ROE

    11. The Commission rejects arguments from pipelines and pipeline groups that no double recovery results from granting an MLP both an income tax allowance and a DCF ROE. These include claims that (a) changes to the stock price eliminate the double recovery, (b) MLP partners' taxes are “first tier” taxes that should be recoverable in an income tax allowance, (c) the return produced by the DCF analysis is never grossed-up (or adjusted) to include MLP partners' tax costs, (d) the presence of an income tax allowance causes MLP investors to demand a lower return in the market place, (e) a life-cycle hypothetical shows that corporate and MLP tax costs and after-tax returns are similar when an income tax allowance is present, (f) the calculation of the growth rate in the DCF Formula for MLPs addresses the double-recovery issue, and (g) various empirical studies refute the double-recovery finding in United Airlines. As discussed below none of these arguments resolves the double-recovery concern, and accordingly, the Commission will no longer permit MLPs to recover an income tax allowance in cost-of-service rates.

    a. Changes to a Pipeline's Unit Price Do Not Resolve the Double-Recovery Issue

    12. Some commenters argue that there is no double recovery caused by an income tax allowance for MLPs because the income tax allowance merely increases the price of the MLP units.21 These commenters assert that as a result of the increased unit price, investors will receive the same rate of return whether or not the pipeline receives an income tax allowance, and, thus, there is no double recovery.

    21E.g., Association of Oil Pipe Lines (AOPL) Initial Comments at 24-27, Graham Declaration at 12-13; SFPP Initial Comments at 21-26, Vander Weide Declaration at PP 8, 19. These commenters argue that if an MLP is able to charge a higher tariff rate, the increased cash flow will lead to increased distributions to investors and MLP prices will rise to reflect the additional cash flow. Hence, the market will immediately react to eliminate any differences such that the after-tax returns of partnership and corporate investors are equalized.

    13. The Commission rejects such arguments as inapposite. As explained in the Remand Order, the double-recovery issue is separate from the post-rate case effects upon an MLP pipeline's unit price. An MLP pipeline's DCF ROE is typically based upon a proxy group of other MLPs,22 all of which must provide investors with sufficient pre-investor tax returns to attract capital. Permitting an MLP pipeline to recover both the DCF pre-investor tax return and an income tax allowance for the investor-level tax costs leads to a double recovery. Whether or not the double recovery leads to an increased unit price, the impermissible double recovery in the MLP's cost of service remains.23

    22 The proxy group may include corporations as well. In that case, the ROE will reflect the dividend tax paid by corporate investors.

    23 While an inflated cost of service will likely increase distributions to investors and cause a pipeline's unit price to rise, such benefits to a pipeline's unitholders do not render the double recovery permissible. Under this theory, the Commission could increase a pipeline's cost of service by allowing the pipeline to incorporate duplicative costs, yet these commenters appear to claim that because its unit price would subsequently rise, the inclusion of duplicative costs in the pipeline's cost of service is not unjust or unreasonable. This argument is without merit.

    14. Moreover, while permitting such a double recovery may increase the unit price, these changes in the unit price do not resolve the double-recovery problem or change the DCF return from a pre-investor tax return to an after-investor tax return. Rather, if an MLP pipeline obtains a new revenue source that increases distributions to investors (such as an income tax allowance), the unit price will rise until, once again, the investor receives the cash flow necessary to cover the investor's income tax liabilities and to earn an after-tax return that is comparable to other investments of similar risk.24 Likewise, if the MLP's cash flows are reduced (such as via the removal of the income tax allowance) and consequently distributions decline, the MLP unit price will drop until the returns once again both cover an investor's tax costs and provide the sufficient after-tax returns. Whether or not a pipeline receives an income tax allowance, the MLP's DCF return will always be a pre-investor tax return.25

    24United Airlines, 827 F.3d at 136. In finding that “the [DCF ROE] determines the pre-tax investor return required to attract investment, irrespective of whether the regulated entity is a partnership or a corporate pipeline,” the Court relied on Opinion No. 511, 134 FERC ¶ 61,121 at PP 243, 244, which included the following example:

    The investor desires a 6 percent after-tax return and has a 25 percent marginal tax rate. Thus, the security must have an ROE of 8 percent to achieve an after-tax yield of 6 percent. Assume that the distribution or dividend is $8. The investor will price the security at $100. Conversely, if the security price is $100 and the yield is $8, the Commission determines that the required return is 8 percent. If the dollar distribution increases to $10, the investor will price the security at $125 because $10 is 8 percent of $125. The Commission would note that the security price is $125 and that the yield is $10, or a return of 8 percent. If the distribution is $6, the security price will drop to $75, a return of 8 percent. The Commission would observe a $75 dollar security price, a $6 yield, and a return of 8 percent. In all cases the ROE is 8 percent and the after-tax return is 6 percent based on the market-established return.

    25 This is true both for the entity whose rates are at issue in a cost-of-service rate case (such as SFPP in the Remand Order) and for the entities in the proxy group.

    b. The Argument That MLPs Are Entitled To Recover “First Tier” Taxes Is Irrelevant

    15. Some commenters contend that removing the income tax allowance is contrary to Commission and court findings that MLP pipelines may recover so-called “first tier” taxes for income generated by the regulated pipeline.26 The pipelines claim that because a partnership does not itself pay taxes, the taxes paid by the partners are the “first tier” tax, much like the corporate income tax is the “first tier” tax for the corporation. The pipelines contrast these “first tier” taxes with so-called “second tier” taxes (such as the dividend tax paid by corporate stockholders) which are not typically recovered by the income tax allowance.

    26 Interstate Natural Gas Association of America (INGAA) Initial Comments, Sullivan Affidavit at 12-14, 24-25, 27.

    16. The Commission is not persuaded by such arguments, which were already presented to the D.C. Circuit.27 The pipelines' arguments do not address the D.C. Circuit's finding that the DCF ROE itself enables the recovery of an MLP's “first tier” tax costs, rendering an income tax allowance unnecessary. Whether or not a tax can be labeled a “first tier” tax is irrelevant to the double-recovery issue. No double recovery results when a corporate pipeline's cost of service includes an income tax allowance because this so-called “first tier” corporate income tax is paid directly by the corporation, rather than by unitholders from the dividends used in the DCF methodology.28 In contrast, the MLP itself pays no taxes.29 Because the “first tier” MLP income taxes are paid directly by the unitholders,30 the D.C. Circuit explained that the pre-investor tax DCF return must be sufficient to recover an MLP investor's tax costs in order to attract capital. While the D.C. Circuit reaffirmed that an MLP pipeline may recover such “first tier” investor income tax costs, the D.C. Circuit also held that an MLP pipeline may not double recover those costs via both an income tax allowance and the DCF return.31

    27 Federal Energy Regulatory Commission and United States of America, Brief for Respondents, Case No. 11-1479, at 26 (D.C. Cir., filed Feb. 5, 2016).

    28 Corporations first pay the corporate income tax from their earnings prior to any dividends to investors. Then, subsequently, investors pay taxes on dividends. While the pre-investor tax DCF return would reflect the dividend tax paid by investors, it does not reflect the corporate income tax.

    29United Airlines, 827 F.3d at 136 (explaining “unlike a corporate pipeline, a partnership pipeline incurs no taxes, except those imputed from its partners, at the entity level”).

    30 In the past, the Commission has stated that its income tax allowance policy “imputes” those investor-level taxes to the partnership entity. In using such phrasing, the Commission never denied that investors nonetheless pay the investor-level taxes.

    31 In United Airlines, the D.C. Circuit acknowledged that in ExxonMobil it held that the Commission provided a reasoned basis for allowing an MLP pipeline to recover the “first tier” income tax costs paid by the MLP partners. However, the D.C. Circuit explained that in ExxonMobil, it had “reserved the issue of whether the combination of the [DCF ROE] and the tax allowance results in a double recovery of taxes for partnership pipelines.” United Airlines, 827 F.3d at 134; see also ExxonMobil, 487 F.3d 945.

    c. The Argument That the Tax Allowance Reduces Investors' Required Return Lacks Merit

    17. SFPP argues that investors recognize that the income tax costs are recovered by the pipeline through the income tax allowance and therefore, elect not to demand a DCF return on their investment that would cover those income tax costs.32 Because under this theory the DCF return would not include investor tax costs, SFPP argues that there is no double recovery. In essence, SFPP contends that the pre-tax return produced by a DCF analysis of an MLP with a tax allowance is the equivalent of an after-tax return, since investors do not demand a pre-tax return. Similarly, SFPP argues that if MLPs lose the income tax allowance, then the MLP investors will demand a higher pre-tax return than under present policy.

    32 SFPP Initial Comments at 17, Vander Weide Declaration at PP 12, 14, 18. SFPP claims that investors will not “gross-up” the required after-tax return to include tax costs. SFPP Initial Comments at 16; Vander Weide Declaration at PP 6, 18.

    18. The Commission rejects SFPP's assertions. These arguments distort how the income tax allowance affects investor tax liability. MLP investors owe a tax on any increased income, whether or not that income results from an income tax allowance or another source.33 Accordingly, while as discussed above an MLP income tax allowance may increase the unit price, investors will continue to demand a pre-tax return even when a portion of a pipeline's rate is attributable to an “income tax allowance.” 34 Notwithstanding the presence of an income tax allowance, the pre-investor tax ROE produced by the DCF analysis does not equal the investor's after-tax return. Likewise, if an MLP pipeline's loss of its income tax allowance reduces rates and investor income, the unit price will decline until the investor once again earns an adequate pre-tax return.

    33 The Internal Revenue Code does not exempt from taxation income that results from the increases to rates resulting from the cost-of-service income tax allowance.

    34 Suppose an income tax allowance increases a pipeline's rates, raising investor income from $10 to $12. Two things have occurred; first the investor's pre-tax income increased from $10 to $12 and second the investor now owes taxes on $12 of income just as she owed taxes on the initial $10. The unit price will increase until the investor receives the same pre-tax return at $12 of income that it received at $10 of income. In other words, Commission policy does not shift the actual liability to pay income taxes from the MLP partners to the MLP itself.

    19. SFPP's comments rely almost exclusively upon the incorrect assumption that for an MLP with an income tax allowance, an MLP investor's pre-tax return equals its after-tax return.35 However, while SFPP relies heavily upon this assumption in this proceeding, SFPP elsewhere takes the opposite position—presenting hypotheticals showing that an investor will demand a pre-tax return whether or not the pipeline receives an income tax allowance.36

    35E.g,. SFPP Initial Comments, Vander Weide Affidavit at 8 (Table 1, Lines 11-15, showing the before-tax DCF ROE equaling the investor's after-tax return), 12 (Table 2, Lines 11-15, showing the before-tax DCF ROE and investor's pre-tax return equaling the investor's after-tax return), 16 (Table 3, lines 11-15 showing for a pipeline with an income tax allowance, the before-tax DCF ROE and investor's pre-tax return equaling the investor's after-tax return).

    36 In its West Line rate case, SFPP filed post-remand comments and supplemental comments following United Airlines. In those comments, SFPP presented a hypothetical showing that an MLP recovering both an income tax allowance (Table 1, Column C) and a DCF ROE earns the same 6.5 percent investor after-tax return as an MLP without an income tax allowance (Table 1, Column D). SFPP, L.P., Supplemental Reply Comments, Docket No. IS08-390, at 10 (November 30, 2016). While the table does not show the investors' pre-tax returns, since both pipelines were subject to a 35 percent investor level tax, both must have recovered a 10 percent pre-tax investor return. Thus, in SFPP's own example, the cost-of-service double-recovery of income tax costs of the pipeline in Column C inflated the unit price until it earned the same pre-tax return as the pipeline without an income tax allowance in Column D.

    d. The Cost-of-Service Gross-Up Theory Was Rejected by the D.C. Circuit

    20. Some pipeline commenters also attempt to reframe the cost-of-service “gross-up” theory rejected by the D.C. Circuit. This argument, which the Commission also made on appeal in the United Airlines proceeding, asserts that the DCF return does not include investor tax costs because the Commission never adjusts, or “grosses-up,” the return produced by the DCF analysis to recover such tax costs.37 In response to the NOI, pipeline commenters assert that the DCF ROE cannot include an MLP investor's income tax costs because the income tax costs are not a separate line item in the DCF methodology.38

    37 Federal Energy Regulatory Commission and United States of America, Brief for Respondents, Case No. 11-1479, at 28-29 (D.C. Cir., filed Feb. 5, 2016) (citations omitted) (“In contrast to the way in which income taxes are grossed up outside the context of Commission regulation, the Commission does not gross up [i.e., increase] a jurisdictional entity's operating revenues or return to cover the income taxes that must be paid to obtain its after-tax return.”).

    38 INGAA Initial Comments at 24, Sullivan Affidavit at 6, 17-18, 22, 25-27, 30.

    21. The Commission rejects this position. The Commission's DCF methodology need not include a mathematical step to add income taxes. For the reasons described above, “the [DCF ROE] determines the pre-tax investor return” 39 that already reflects cash flow for both the (a) investor's tax costs and (b) the investor's post-tax return.

    39United Airlines, 827 F.3d at 136 (citing Opinion No. 511, 134 FERC ¶ 61,121 at PP 243-44).

    e. The Life-Cycle Hypothetical Does Not Refute the D.C. Circuit's Holding

    22. INGAA witness Merle Erickson presents a life-cycle model that compares the total tax expenses of a hypothetical MLP to a hypothetical corporation. Under the assumptions of the model, Erickson finds that MLPs' and corporations' aggregate tax burdens are comparable and that both earn similar returns if MLPs are permitted an income tax allowance.40 Pipeline commenters claim that the model globally demonstrates that the Commission's current income tax policy provides parity in the returns to partnerships and corporations.41

    40 INGAA Initial Comments, Erickson Affidavit at 12.

    41 INGAA Initial Comments at 4, 25.

    23. We do not find this argument to be persuasive. Erickson's life-cycle model does not undermine the fundamental premise of United Airlines that an income tax allowance for MLP pipelines leads to a double recovery. Whether or not the overall MLP and corporate tax burdens are equivalent or different, if the investor tax costs are incorporated into the DCF returns, then the income tax allowance for MLP pipelines leads to a double recovery.42

    42 Erickson himself concedes that MLP unitholders must pay the entirety of the tax burden whereas corporate unitholders must only pay the dividend tax (not the corporate income tax). INGAA Initial Comments, Erickson Affidavit at 13. Accordingly, it follows that whereas the DCF return for an MLP pipeline must include the entire income tax costs, a corporate pipeline's DCF return would not include the corporate income tax.

    24. In addition, Erickson's model does not necessarily establish that overall MLP tax levels are actually comparable to corporate tax levels or that an income tax allowance equalizes returns. Like similar hypothetical models, the results of Erickson's proposal rely upon subjective assumptions.43 For example, as Thomas Horst explains, Erickson's hypothetical would show that MLPs (with an income tax allowance) receive higher returns if Erickson had accounted for (a) the time value of money 44 and (b) certain tax issues related to the sale of MLP units.45 The Brattle report presented by shipper commenters similarly demonstrates how reasonable changes to Erickson's assumptions change the model's output.46 Thus, Erickson's hypothetical does not undermine the fundamental conclusion of United Airlines that allowing MLP pipelines to include both an income tax allowance and a full DCF ROE in their cost of service leads to a double recovery.

    43 When attacking models proposed by shippers, AOPL witness John Graham states that for such hypotheticals, “There are too many variables to draw broad-based conclusions.” AOPL Initial Comments, Graham Affidavit at 8. This comment applies with equal force to Erickson's model. Erickson's assumptions include (1) a five-year investment horizon; (2) that the MLP distributes all available cash and the corporation has a 65 percent dividend pay-out ratio; (3) certain tax rates for corporate income, corporate dividends and capital gains, and ordinary MLP income; and (4) that the corporate investors are able to sell their stock for the value of their original investment plus accumulated retained earnings, while the MLP investors sell their units for the value of their original investment. The life-cycle model also assumes constant earnings before interest, taxes, depreciation and amortization and application of a fifteen-year Modified Accelerated Cost Recovery System. The life-cycle analysis does not take into account the time value of money in reporting the total after-tax cash flow to the MLP and corporate investors.

    44 Thomas Horst Reply Comments at 2. An investor in a corporation usually must pay his dividend taxes immediately. In contrast, an MLP investor can use depreciation and other deductions to offset taxable income. As a result, an MLP investor may have no net taxable income in a given year. NOI, 157 FERC ¶ 61,210 at P 6. Even though the investor may ultimately be required to pay such taxes when the units are sold, the MLP investor benefits from the time value of money during the deferral period.

    45Id. Dr. Horst argues that when an MLP unit is sold, its basis increases—much like in the sale of any property or asset. This only further increases the depreciation deferrals that are available to the subsequent investor.

    46 United Airlines Petitioners Reply Comments, Brattle Report at PP 73-74.

    f. The Treatment of the Growth Rate in the DCF Does Not Resolve the Double Recovery Concern

    25. Pipelines emphasize that in the DCF formula, the Commission projects that the long-term growth of MLP pipelines will be only half that of corporations.47 Therefore, they argue “to the extent the Commission concludes that there is a potential for double recovery of income tax costs through the MLP ROE, the Commission has already addressed that concern.” 48

    47 AOPL Initial Comments at 46. As noted above, the DCF relies upon the general formula k = D / P + g. The growth rate in this formula incorporates two components: A short term growth rate (calculated using security analysts' five-year forecasts for each company in the proxy group as published by IBES) and a long-term growth rate (based upon forecasts for gross domestic product (GDP) growth). The short-term forecast receives a two-thirds weighting and the long-term forecast receives a one-third weighting in calculating the growth rate in the DCF model. Proxy Group Policy Statement, 123 FERC ¶ 61,048 at P 6.

    48 AOPL Initial Comments at 46.

    26. The Commission concludes that the treatment in the DCF analysis of the long-term MLP growth projection does not resolve the double-recovery concern in United Airlines. When conducting a DCF analysis to determine investors' required rate of return, the Commission halves the long-term growth rate for MLPs in the proxy group because MLPs are likely to have a lower long-term growth rate than corporations.49 The treatment of investor-level taxes presents an entirely separate issue. As discussed above, regardless of the projected growth rate used in the DCF analysis to determine the investors' required rate of return, that required return must provide investors cash flows to both (a) recover investor level tax costs and (b) provide the investor with a sufficient after tax return.

    49 The Commission explained corporations “(1) have greater opportunities for diversification because their investment opportunities are not limited to those that meet the tax qualifying standards for an MLP and (2) are able to assume greater risk at the margin because of less pressure to maintain a high payout ratio.” Proxy Group Policy Statement, 123 FERC ¶ 61,048 at P 93. Accordingly, the Commission concluded that the “long term growth rate for MLPs will be less than that of schedule C corporations. . . .” Id. P 94. See also El Paso Natural Gas Co., Opinion No. 528-A, 154 FERC ¶ 61,120, at PP 271-275, 278-283 (2016).

    g. Pipelines' Empirical Studies Do Not Resolve the D.C. Circuit's Double-Recovery Concern

    27. Pipeline commenters advance two empirical criticisms of the holdings in United Airlines. First, they criticize studies presented by shippers in the underlying SFPP proceeding showing that MLP pipeline DCF returns exceed corporate pipeline DCF returns, while shipper commenters argue that a modified version of these studies supports the opposite result. Second, the pipelines argue the relationship between MLP and corporate pipeline DCF returns does not show a systemic disparity consistent with the different tax levels, and, thus, they argue that this refutes the holding that there is no double recovery. As discussed below, these arguments lack merit.

    i. The Reasoning in United Airlines Holds, Whether or Not MLP DCF Returns Exceed Corporate DCF Returns

    28. In order to counter the D.C. Circuit's double-recovery finding, pipeline commenters attack studies presented by shippers in the underlying SFPP 2008 West Line rate case addressed on appeal in United Airlines. 50 These studies purported to show that MLP pipeline DCF returns exceeded corporate pipeline DCF returns, which the shippers argued showed that the DCF returns reflected tax differences. Now, pipeline commenters argue that due to alleged flaws in these studies, the court in United Airlines erred by finding that the MLP pipeline DCF returns include investor-level tax costs. They assert that if their preferred sample of six pipelines (two corporations and four MLPs) is considered, corporate DCF returns may actually exceed MLP DCF returns.51

    50 INGAA Initial Comments, Sullivan Affidavit at 41-48.

    51Id. at 47-48.

    29. The criticisms of the underlying studies in SFPP's 2008 West Line Rate case are irrelevant. In United Airlines, the D.C. Circuit did not rely upon these studies to find that the DCF returns include MLP investors' income tax costs, and the shipper-petitioners did not cite these studies in their appeal.52 Any such reliance would have been unnecessary. As described above, the inclusion of MLP investor-level taxes in the DCF return necessarily follows from the basic application of DCF theory and the understanding that investors consider the tax consequences of their investments.

    52 Before the Administrative Law Judge and the Commission, shippers argued that this disparity demonstrated the inclusion in the DCF ROE of the MLP investors' income tax costs, which they argued generally exceeded the dividend taxes paid by corporate investors.

    30. Furthermore, the studies are also inapposite. The holding in United Airlines would not change if the pipeline commenters were to conclusively establish that when controlling for all factors but investor-level taxes, corporate pipeline DCF returns exceeded MLP pipeline DCF returns. This would merely demonstrate that the MLP investors' tax burden was less than the corporate investors' dividend tax burden.53 In order to attract capital, the investor-required MLP pipeline DCF return would still include the investor-level tax costs, and thus, a double recovery results from the additional recovery of an income tax allowance for MLPs.54

    53 While historically a corporate investor's dividend tax rate has typically been less than the weighted average income tax rate for MLP investors (AOPL Initial Comments, Graham Affidavit at 5-6), MLPs have various tax deferrals and other characteristics that may further narrow or eliminate this difference. Nonetheless, any such conclusion based upon the pipeline commenters' data is dubious, as it is based upon a small sample size of only two corporations and four MLPs. INGAA Initial Comments, Sullivan Affidavit at 47-48.

    54 Likewise, the December 22, 2017 Tax Cuts and Jobs Act does not alter the Commission's analysis. Tax Cuts and Jobs Act, Public Law 115-97, 131 Stat. 2054 (2017). While the tax rates for both corporations and individuals have been reduced, the DCF ROE will continue to provide a pre-investor tax return. As discussed above, investors will continue to demand a return that both covers the investor level tax costs and leaves the investor a sufficient after tax return compared to other investments of comparable risk.

    ii. The Pipeline Commenters' Empirical Evidence Fails To Disprove the Double Recovery

    31. Pipelines make two broad arguments. First, pipeline commenters argue that if the DCF methodology includes investor-tax costs as determined by the D.C. Circuit in United Airlines, there should be a systematic relationship between MLP pipeline and corporate pipeline DCF returns reflecting these differences in investor-level taxes. Second, they argue that if pipelines are double-recovering their costs, then MLP pipelines should report higher DCF returns, distribution yields, and growth rates than corporate pipelines.

    32. In their first argument, pipelines argue that if the DCF returns include investor tax costs, then there should be a consistent differential between MLP pipeline and corporate pipeline DCF returns. For example, if MLP investor-level taxes exceed corporate investor-level taxes, then pipeline commenters state that MLP pipeline DCF returns should always exceed corporate pipeline DCF returns, or vice versa. To refute the holding in United Airlines, pipeline commenters present empirical analyses purporting to show that the DCF returns for MLP pipelines do not show a consistent differential.55 These studies consist of (1) a line graph showing DCF returns for 23 pipelines between August 2007 to January 2017 in which MLP pipelines' DCF returns do not always exceed corporate pipelines' returns,56 and (2) DCF returns over the January 2008 to January 2017 period comparing four pairs of MLP and corporate affiliates 57 in which the relationship between the corporate affiliate and the MLP affiliate returns fluctuated significantly.

    55See INGAA Initial Comments at 31-35, Sullivan Affidavit at 42-69; AOPL Initial Comments at 3, 24, 28-30; Master Limited Partnership Association (MLPA) Initial Comments at 9.

    56 INGAA Initial Comments, Sullivan Affidavit at 48-49. INGAA witness Sullivan performed similar analysis for different components of the DCF, including both the dividend yield and the growth rate. Id. at 65-69.

    57Id. at 50-51.

    33. These studies suffer from fundamental methodological flaws that undermine the pipelines' conclusions. It is true that the United Airlines double-recovery theory would predict that, assuming all other factors are exactly equal, investor-level tax differences would create a differential between MLP and corporate pipeline DCF returns.58 However, differences in risk and other factors can subsume any effects of taxation, and because the studies inadequately control for varying risk levels, the studies do not isolate the effect of the MLP and corporate investor-level income taxes on the DCF returns. The first study, which compared 23 MLP and corporate pipelines, completely ignores the entities' differing risk levels 59 and merely shows a line graph of DCF returns for each pipeline without presenting any related numerical analysis.60 While the pipeline commenters' second study attempts to address varying risk levels by comparing four affiliated corporations and MLPs in their first study,61 the affiliated MLPs were only a fraction of the affiliated corporations' larger business interests, which, as the pipeline commenters concede, contributed to significant fluctuations in the relationship between the two entities' relative DCF returns.62 Moreover, this analysis based upon a mere four examples does not establish how investor level taxes (as opposed to other factors) affect either corporate or MLP investor returns.

    58 In essence, investors would demand higher returns from the business form with the higher investor-level taxes.

    59 INGAA witness Sullivan's arguments involving distribution yields and growth rates are similarly flawed.

    60 For example, on page 49 of his affidavit, INGAA consultant Sullivan submitted a line-chart which purports to show that corporate and MLP DCF returns are not discernibly different. However, (a) the y-axis is drawn so as to compress most of the returns to a narrow band, and (b) meaningful statistical differences could be completely obscured by this poor graphical presentation. Similar criticisms apply to Sullivan's comparison of MLP distributions to corporate dividends on page 65 of his affidavit and growth rates on page 68 of his affidavit. It is possible that a more precise numerical example could actually present facts undermining the pipelines' favored result.

    61Id. at 52-62. Sullivan also adds a comparison between a completely unrelated MLP (Boardwalk Pipeline Partners) and a corporation (Kinder Morgan). Because these are completely different businesses, such a comparison is irrelevant for the purpose of identifying the effect of different tax levels on the DCF.

    62 For each of the four pairs, the DCF return for the corporation at times exceeded the return for the MLP whereas on other occasions the return for the MLP exceeded the corporation. Id. Sullivan describes situations in which growth estimates or factors involving unrelated assets would affect the DCF return of the corporation but not the MLP.

    34. Pipelines advance a second argument—that if MLPs are double recovering their costs, they should report higher returns than corporations. For example, INGAA witness Sullivan also argues that “[i]f MLPs double recovered income taxes through both an income tax allowance and a DCF return, I would expect the DCF ROEs and its components, the distribution yields and the IBES growth rates of MLPs to be systematically higher than corporations throughout the period 2008 to the present.” 63 Citing the same studies above, Sullivan argues that because the data does not show systematically higher returns, yields or growth rates for MLPs, there must be no double recovery.

    63Id. at 58.

    35. The Commission finds this argument unpersuasive because it relies upon the same flawed studies discussed above. As noted above, the line graphs provide a flawed analysis that may obscure actual differences between MLPs and corporations and, more fundamentally, that fails to address the multiple other risk and market factors that could affect any particular MLP and corporate pipeline's DCF returns, distribution yields, and growth levels. Moreover, as discussed previously, to the extent an MLP pipeline double-recovers its costs, the unit price will rise—obscuring the effects of the double recovery in the distribution yields, projected growth rates, and DCF returns.64 These studies do not undermine the double-recovery findings of United Airlines or the Remand Order.

    64 As explained in section II.A.1.a, whether or not a pipeline receives an income tax allowance, the DCF return will always be a pre-investor tax return. However, to the extent a pipeline is permitted to start double-recovering its costs, the unit price will rise until the DCF once again provides investors with a pre-tax return.

    2. Other Arguments for Preserving an Income Tax Allowance Lack Merit

    36. Pipeline commenters also argue that even if a double recovery exists, the income tax allowance should nonetheless be preserved. These arguments rely upon (1) Congressional intent, (2) preserving parity between corporate and MLP pipelines, and (3) the effect of removing the income tax allowance upon the ability of pipelines to attract capital. As discussed below, these arguments were either explicitly rejected by the D.C. Circuit in United Airlines or are otherwise without merit.

    a. Congressional Intent Does Not Authorize a Double Recovery

    37. Pipeline commenters argue that providing MLP pipelines an income tax allowance implements Congress' intent to facilitate infrastructure investment.65 In 1987 Congress eliminated pass-through status for most publicly-traded partnerships, but explicitly granted an exception for certain energy-related MLPs in section 7704 of the Internal Revenue Code.66 Pipeline commenters present two specific arguments to support their Congressional intent claims, both of which are unavailing. First, they argue that because the Commission's policy in 1987 allowed pass-through entities to recover the same income tax allowance as corporations, Congress understood and intended to continue that rate treatment in section 7704.67 Second, they present a letter that Senator Max Baucus submitted to the Commission in 1996,68 expressing concern with the Commission's decision to allow MLP pipelines only a partial income tax allowance in Lakehead. 69

    65See INGAA Initial Comments at 12-13; MLPA Initial Comments at 3-4; AOPL Initial Comments at 7, 41-42; SFPP Initial Comments at 30; TransCanada Corporation Initial Comments at 2; Enbridge Initial Comments at 4; Meliora Capital, LLC Initial Comments.

    66 26 U.S.C. 7704.

    67 INGAA Initial Comments at 13-15.

    68 INGAA Initial Comments at 14; MLPA Initial Comments at 3-4.

    69Lakehead Pipe Line Co., L.P., 75 FERC ¶ 61,181 (1996). Senator Baucus participated in the writing of the 1987 legislation. The letter states that “placing this obstacle in the path of pipeline companies wishing to operate as [publicly-traded partnerships] directly contravenes the policy we adopted in that legislation of making the [publicly-traded partnership] structure freely available to the pipeline industry” and “[i]t was certainly not our intention for pipelines operating as [publicly-traded partnerships] to be singled out for negative treatment relative to other pipelines solely because of their partnership status.” Letter from U.S. Senator Max Baucus, FERC Docket No. IS92-27-000 (Jan. 9, 1996).

    38. As discussed in the Remand Order, the D.C. Circuit has twice rejected the argument that Congress' intent in section 7704 provides an independent basis for upholding a full income tax allowance for partnership pipelines.70 Consistent with these holdings, the court in United Airlines unequivocally instructed the Commission to consider “mechanisms for which the Commission can demonstrate that there is no double recovery.” 71 Accordingly, the pipeline commenters' attempt to justify affording MLP pipelines an income tax allowance on the basis that the Commission is implementing Congress' intent in section 7704 is contrary to United Airlines.

    70BP West Coast, 374 F.3d at 1293 (“[t]he mandate of Congress in the tax amendment was exhausted when the pipeline limited partnership was exempted from corporate taxation. It did not empower FERC to do anything. . . .”); United Airlines, 827 F.3d at 136 (rejecting the Commission's argument that “any disparate treatment between partners in partnership pipelines and shareholders in corporate pipelines is the result of the Internal Revenue Code, not FERC's tax allowance policy”).

    71United Airlines, 827 F.3d at 136.

    39. In addition, the pipeline commenters fail to demonstrate that Congress intended the Commission's income tax allowance policy to provide a necessary component of the advantages conferred in section 7704. They provide no support for their argument that because the Commission afforded partnerships a tax allowance in 1987, Congress intended to continue that rate treatment in the 1987 legislation.72

    72 As the Commission explains in the Remand Order, Congress did not provide explicit instructions to federal agencies regarding how to address section 7704's tax treatment in setting regulated entity rates as, for instance, it did in the Revenue Act of 1964. See Alabama-Tennessee Natural Gas Co. v. FPC, 359 F.2d 318, 333 (5th Cir. 1966) (“In the Revenue Acts of 1962 and 1964 Congress demonstrated that when it desires a tax statute to restrict the ratemaking authority of federal regulatory agencies it does so in precise language.”). Courts are hesitant to find that Congress implicitly intended to restrict an agency's discretion in carrying out its statutory obligations. See Alabama-Tennessee Natural Gas Co. v. FPC, 359 F.2d at 335 (“It is unlikely to suppose that Congress amended the Natural Gas Act by a reference in the Internal Revenue Code; it is unreasonable to read Section 167 [of the Code] as a mandate reducing the Commission's responsibility to fix fair rates according to its usual ratemaking policies in favor of the consumer”); see also Cheney R. Co. v. ICC, 902 F.2d 66, 69 (DC Cir. 1990) (“in an administrative setting, . . . Congress is presumed to have left to reasonable agency discretion questions that it has not directly resolved”).

    40. Nor do the pipeline commenters present any legislative history to support their claim. Regarding the letter from Senator Baucus, evidence of legislative intent that occurs subsequent to, and in this case years after, the 1987 enactment of section 7704 is entitled to little, if any weight.73 The MLPA also points to other legislation by Congress in recent years to demonstrate ongoing support for the use of MLPs to raise capital in the energy sector. These statutes do not include any specific provisions related to MLP pipeline rate treatment.74

    73See Thomas v. Network Solutions, Inc., 176 F. 3d 500, 507 n.10 (D.C. Cir. 1999) (referring to letters from members of Congress written after the legislation in question was passed and noting that “[s]uch isolated post-enactment statements, to the extent that they are legislative history, carry little weight”); U.S. v. United Mine Workers of America, 330 U.S. 258, 282 (1947) (remarks of senators in 1943 were not an authoritative source of evidence of Congress' legislative intent in enacting a 1932 statute); D.C. v. Heller, 554 U.S. 570, 605 (2008) (“post-enactment legislative history . . . a deprecatory contradiction in terms, refers to statements of those who drafted or voted for the law that are made after its enactment and hence could have no effect on the congressional vote”); Barber v. Thomas, 560 U.S. 474, 486 (2010) (“whatever interpretive force one attaches to legislative history, the Court normally gives little weight to statements, such as those of the individual legislators, made after the bill in question has become a law”); Friends of Earth, Inc. v. E.P.A., 446 F.3d 140, 147 (D.C. Cir. 2006) (“`[P]ost-enactment legislative history,' after all, `is not only oxymoronic but inherently entitled to little weight'”) (quoting Cobell v. Norton, 428 F.3d 1070, 1075 (D.C. Cir. 2005)).

    74See MLPA Initial Comments at 4 (citing the American Jobs Creation Act, Emergency Economic Stabilization Act of 2008, and the Tax Reform Act of 2014).

    41. In conclusion, removing the income tax allowance will not eviscerate the preferential tax treatment that Congress gave entities engaged in natural resource activities 75 by permitting them to operate as publicly-traded partnerships with pass-through taxation, including the ability to reach a broader base of investors and defer certain tax obligations.76 Even in the absence of an income tax allowance, the energy sector will benefit from the MLP business form by enabling MLP-owned pipelines to provide lower tariff rates to shippers, including those engaged in production, marketing and refining.

    75 An MLP must receive at least 90 percent of its income from certain qualifying sources including “the exploration, development, mining or production, processing, refining, transportation (including pipelines transporting gas, oil, or products thereof), or the marketing of any mineral or natural resource (including fertilizer, geothermal energy, and timber), industrial source carbon dioxide, or the transportation or storage of [certain fuels].” 26 U.S.C. 7704.

    76 Pipeline commenters explain that the MLP structure permits risk sharing by combining pass-through taxation and publicly-traded units which allows MLPs to reach a broader base of investors and facilitates raising capital for infrastructure projects. AOPL Initial Comments at 6, 39, 13; MLPA Initial Comments at 2-3.

    b. Preserving the Income Tax Allowance for MLP Pipelines Does Not Create Parity

    42. Pipeline commenters claim that removing the income tax allowance would put MLP pipelines at a competitive disadvantage relative to corporate pipelines.77

    77 AOPL Initial Comments at 43; INGAA Initial Comments at 7, 15; MLPA Initial Comments at 15.

    43. The court in United Airlines reached the opposite conclusion. The court determined that granting MLP pipelines an income tax allowance results in inequitable returns for partners as compared to corporate shareholders because this policy allows partnership pipelines, unlike corporate pipelines, to recover their income tax costs twice.78 Therefore, removal of the income tax allowance for MLP pipelines restores parity between MLPs and corporations by ensuring that a pipeline recovers its income tax costs only once regardless of business form.79

    78United Airlines, 827 F.3d at 136.

    79 While comments have presented hypotheticals in an attempt to show that MLPs require such a double recovery, they suffer from the same defects as the pipelines' other arguments. For instance, while SFPP attempts to include a hypothetical showing that an income tax allowance is necessary to equalize returns, this hypothetical depends upon the faulty investor gross-up theory discussed above. See SFPP Initial Comments, Vander Weide Affidavit at 12 (Table 2, Lines 11-15, showing the before-tax DCF ROE and investor's pre-tax return equaling the investor's after-tax return).

    c. Preserving the Income Tax Allowance Is Not Necessary for Pipelines To Attract Capital

    44. Pipelines claim that removal of the income tax allowance for MLPs will deny pipelines adequate recovery under Hope and deter investment.80 This is not the case. Notwithstanding the absence of an income tax allowance, MLP pipelines will continue to recover their costs and a reasonable return for investors. United Airlines and the Remand Order merely deny MLP pipelines the double recovery of their income tax costs.

    80 INGAA Initial Comments at 27-28; AOPL Initial Comments at 7, 35-37.

    B. Conclusion

    45. As discussed above, the Commission finds that granting an MLP an income tax allowance results in an impermissible double recovery. This Revised Policy Statement does not address other, non-MLP partnership or other pass-through business forms.81 While any such entity claiming an income tax allowance will need to address the concerns raised by the court in United Airlines, the Commission will address income tax allowance issues involving non-MLP partnership forms in subsequent proceedings.

    81See, e.g., Initial Comments of the United Airlines Petitioners and Allied Shippers at 14 (“A generic proceeding is not well-suited to addressing the wide array of possible organizational forms and their respective tax implications. The better approach would be to examine the appropriate tax allowance treatment on a case-by-case basis in adjudicatory proceedings in which various business structures and their consequences can be examined in detail on an individual, case-specific basis.”); Liquids Shipper Group Initial Comments at 7 (“To the extent there may be individual and complex pipeline ownership structures that include both partnerships and corporations, the application of the FERC's policy can be determined on a case-by-case basis, addressing those unique circumstances.”).

    46. This Revised Policy Statement will affect both oil and natural gas MLP pipelines on a going-forward basis. Some late-filed comments proposed that the Commission take immediate action to require natural gas and oil pipelines to reduce rates to reflect the Tax Cuts and Jobs Act. As noted above, the Commission is concurrently issuing a Notice of Proposed Rulemaking that addresses the effects upon interstate natural gas pipeline rates of the post-United Airlines' policy changes and the Tax Cuts and Jobs Act of 2017.82 While the Commission is not taking similar industry-wide action regarding oil pipeline rates, these issues will be addressed in due course. When oil pipelines file Form No. 6, page 700 on April 18, 2018, they must report an income tax allowance consistent with United Airlines and the Commission's subsequent holdings denying an MLP an income tax allowance.83 Based upon page 700 data, the Commission will incorporate the effects of the post-United Airlines' policy changes (as well as the Tax Cuts and Jobs Act of 2017)  84 on industry-wide oil pipeline costs in the 2020 five-year review of the oil pipeline index level.85 In this way the Commission will ensure that the industry-wide reduced costs are incorporated on an industry-wide basis as part of the index review. To the extent the Commission issues subsequent orders affecting the income tax policy for other partnership or pass-through business forms, oil pipelines should similarly reflect those policy changes on Form No. 6, page 700.

    82See Docket No. RM18-11-000.

    83 Due to these findings that including an income tax allowance in the cost of service leads to a double-recovery, there is no basis for an MLP pipeline to claim an income tax allowance in the summary Form No. 6, page 700 cost of service for the 2016 or 2017 data listed in the April 18, 2018 filing.

    84 The Tax Cuts and Jobs Act changed oil pipeline tax costs effective January 1, 2018, and the resulting reduction to tax costs should be reflected in the tax allowance (page 700, lines 8 and 8a) in the 2018 data reported in Form No. 6, page 700, to be filed on April 18, 2019.

    85 The overwhelming majority of oil pipelines set their rates using indexing, not cost-of-service ratemaking using an oil pipeline's particular costs. Under indexing, oil pipelines may adjust their rates annually, so long as those rates remain at or below the applicable ceiling levels. The ceiling levels change every July 1 based on an index that tracks industry-wide cost changes. 18 CFR 342.3. Currently, the index level is based upon the Producer's Price Index for Finished Goods plus 1.23. The index will be re-assessed in 2020 based upon industry-wide oil pipeline cost changes between 2014 and 2019. E.g. Five-Year Review of the Oil Pipeline Index, 153 FERC ¶ 61,312 (2015) aff'd, Assoc. of Oil Pipe Lines v. FERC, 876 F.3d 336 (D.C. Cir. 2017). The industry-wide data filed in the latter years of the 2014-2019 period should reflect the Commission's post-United Airlines policy changes as well as the Tax Cuts and Jobs Act.

    47. In addition, the Commission emphasizes that the post-United Airlines' policy changes (as well as the Tax Cuts and Jobs Act of 2017) will be reflected in initial oil and gas pipeline cost-of-service rates and cost-of-service rate changes on a going-forward basis under the Commission's existing ratemaking policies,86 including cost-of-service rate proceedings resulting from shipper-initiated complaints.

    86See, e.g., 18 CFR 154.312(m), 154.313(e)(13), 384.123; 342.2, 342.4(a); 18 CFR part 346.

    III. Document Availability

    48. In addition to publishing the full text of this document in the Federal Register, the Commission provides all interested persons an opportunity to view and/or print the contents of this document via the internet through FERC's Home Page (http://www.ferc.gov) and in FERC's Public Reference Room during normal business hours (8:30 a.m. to 5:00 p.m. Eastern time) at 888 First Street NE, Room 2A, Washington, DC 20426.

    49. From FERC's Home Page on the internet, this information is available on eLibrary. The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number excluding the last three digits of this document in the docket number field.

    50. User assistance is available for eLibrary and the FERC's website during normal business hours from FERC Online Support at 202-502-6652 (toll free at 1-866-208-3676) or email at [email protected], or the Public Reference Room at (202) 502-8371, TTY (202) 502-8659. Email the Public Reference Room at [email protected]

    IV. Effective Date

    51. This Revised Policy Statement will become applicable March 21, 2018.

    By the Commission.

    Issued: March 15, 2018. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2018-05668 Filed 3-20-18; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. ER18-1077-000] GASNA 36P, LLC ; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 Authorization

    This is a supplemental notice in the above-referenced proceeding of GASNA 36P, LLC`s application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.

    Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.

    Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is April 4, 2018.

    The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at http://www.ferc.gov. To facilitate electronic service, persons with internet access who will eFile a document and/or be listed as a contact for an intervenor must create and validate an eRegistration account using the eRegistration link. Select the eFiling link to log on and submit the intervention or protests.

    Persons unable to file electronically should submit an original and 5 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426.

    The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for electronic review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the website that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email [email protected] or call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

    Dated: March 15, 2018. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2018-05677 Filed 3-20-18; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. RP18-441-000] Midwestern Gas Transmission Company; Notice of Initiation of Section 5 Proceeding

    On March 15, 2018, the Commission issued an order in Docket No. RP18-441-000, pursuant to section 5 of the Natural Gas Act, 15 U.S.C. 717d (2012), instituting an investigation into the justness and reasonableness of Midwestern Gas Transmission Company's (Midwestern) currently effective tariff rates. The Commission's order directs Midwestern to file a full cost and revenue study within 75 days of the issuance of the order. Midwestern Gas Transmission Company, 162 FERC 61,219 (2018).

    Any interested person desiring to be heard in Docket No. RP18-441-000 must file a notice of intervention or motion to intervene, as appropriate, with the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, in accordance with Rule 214 of the Commission's Rules of Practice and Procedure, 18 CFR 385.214, within 30 days of the date of issuance of the order.

    Dated: March 15, 2018. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2018-05678 Filed 3-20-18; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Combined Notice of Filings

    Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:

    Filings Instituting Proceedings

    Docket Numbers: RP17-363-006.

    Applicants: Eastern Shore Natural Gas Company.

    Description: Compliance filing Settlement Compliance Filing to be effective 4/1/2018.

    Filed Date: 3/1/18.

    Accession Number: 20180301-5260.

    Comments Due: 5 p.m. ET 3/13/18.

    Docket Numbers: RP18-558-000.

    Applicants: Midcontinent Express Pipeline LLC.

    Description: Compliance filing 2018 Annual Penalty Revenue Crediting Report.

    Filed Date: 3/13/18.

    Accession Number: 20180313-5064.

    Comments Due: 5 p.m. ET 3/26/18.

    Docket Numbers: RP18-560-000.

    Applicants: Texas Eastern Transmission, LP.

    Description: § 4(d) Rate Filing: Negotiated Rates—Colonial Energy K911486 eff 4-1-2018 to be effective 4/1/2018.

    Filed Date: 3/15/18.

    Accession Number: 20180315-5003.

    Comments Due: 5 p.m. ET 3/27/18.

    The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.

    Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.

    eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at: http://www.ferc.gov/docs-filing/efiling/filing-req.pdf. For other information, call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

    Dated: March 15, 2018. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2018-05673 Filed 3-20-18; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Notice of Institution of Section 206 Proceeding and Refund Effective Date Docket No. AEP Appalachian Transmission Company, Inc EL18-62-000 AEP Indiana Michigan Transmission Company, Inc AEP Kentucky Transmission Company, Inc AEP Ohio Transmission Company, Inc AEP West Virginia Transmission Company, Inc AEP Oklahoma Transmission Company, Inc EL18-63-000 AEP Southwestern Transmission Company, Inc Baltimore Gas and Electric Company EL18-64-000 Black Hills Power, Inc EL18-65-000 Citizens Sunrise Transmission LLC EL18-66-000 San Diego Gas & Electric Company EL18-67-000 Transource Maryland, LLC EL18-68-000 Transource Pennsylvania, LLC EL18-69-000 Transource West Virginia, LLC EL18-70-000 UNS Electric, Inc EL18-71-000, (not consolidated)

    On March 15, 2018, the Commission issued an order in Docket Nos. EL18-62-000, EL18-63-000, EL18-64-000, EL18-65-000, EL18-66-000, EL18-67-000, EL18-68-000, EL18-69-000, EL18-70-000, and EL18-71-000 pursuant to section 206 of the Federal Power Act (FPA), 16 U.S.C. 824e (2012), instituting an investigation into the justness and reasonableness of each of the above-captioned public utilities' transmission formula rates under its open access transmission tariff or transmission owner tariff on file with the Commission. AEP Appalachian Transmission Company, Inc., et al., 162 FERC 61,225 (2018).

    The refund effective date in Docket Nos. EL18-62-000, EL18-63-000, EL18-64-000, EL18-65-000, EL18-66-000, EL18-67-000, EL18-68-000, EL18-69-000, EL18-70-000, and EL18-71-000, established pursuant to section 206(b) of the FPA, will be the date of publication of this notice in the Federal Register.

    Any interested person desiring to be heard in Docket Nos. EL18-62-000, EL18-63-000, EL18-64-000, EL18-65-000, EL18-66-000, EL18-67-000, EL18-68-000, EL18-69-000, EL18-70-000, and EL18-71-000 must file a notice of intervention or motion to intervene, as appropriate, with the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, in accordance with Rule 214 of the Commission's Rules of Practice and Procedure, 18 CFR 385.214, within 21 days of the date of issuance of the order.

    Dated: March 15, 2018. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2018-05674 Filed 3-20-18; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. RM18-12-000] Inquiry Regarding the Effect of the Tax Cuts and Jobs Act on Commission-Jurisdictional Rates AGENCY:

    Federal Energy Regulatory Commission, Department of Energy.

    ACTION:

    Notice of inquiry.

    SUMMARY:

    The Federal Energy Regulatory Commission (Commission) is seeking comment on the effect of the Tax Cuts and Jobs Act of 2017 on Commission-jurisdictional rates. Of particular interest is whether, and if so how, the Commission should address changes relating to accumulated deferred income taxes and bonus depreciation.

    DATES:

    Comments are due May 21, 2018.

    ADDRESSES:

    Comments, identified by docket number, may be filed electronically at http://www.ferc.gov in acceptable native applications and print-to-PDF, but not in scanned or picture format. For those unable to file electronically, comments may be filed by mail or hand-delivery to: Federal Energy Regulatory Commission, Secretary of the Commission, 888 First Street NE, Washington, DC 20426. The Comment Procedures section of this document contains more detailed filing procedures.

    FOR FURTHER INFORMATION CONTACT:

    Natalie Tingle-Stewart (Technical Information), Office of Energy Market Regulation, 888 First Street NE, Washington, DC 20426, (202) 502-8267, [email protected] Kristen Fleet (Technical Information (Electric)), Office of Energy Market Regulation, 888 First Street NE, Washington, DC 20426, (202) 502-8063, [email protected] Monil Patel (Technical Information (Oil)), Office of Energy Market Regulation, 888 First Street NE, Washington, DC 20426, (202) 502-8296, [email protected] James Sarikas (Technical Information (Natural Gas)), Office of Energy Market Regulation, 888 First Street NE, Washington, DC 20426, (202) 502-6831, [email protected] Steven Hunt (Accounting Information), Office of Enforcement, 888 First Street NE, Washington, DC 20426, (202) 502-6084, [email protected] Jonathan Taylor (Legal Information), Office of the General Counsel, 888 First Street NE, Washington, DC 20426, (202) 502-6649, [email protected] SUPPLEMENTARY INFORMATION:

    1. In this Notice of Inquiry (NOI), the Commission seeks comment on the effect of the Tax Cuts and Jobs Act of 2017 (Tax Cuts and Jobs Act) on Commission-jurisdictional rates. Of particular interest is whether, and if so how, the Commission should address changes relating to accumulated deferred income taxes (ADIT) and bonus depreciation.

    I. Background A. Tax Cuts and Jobs Act

    2. On December 22, 2017, the President signed into law the Tax Cuts and Jobs Act,1 which provides a number of changes to the federal tax system.2 One of the significant changes with widespread effects on Commission-jurisdictional rates is the reduction of the federal corporate income tax rate from a maximum 35 percent to a flat 21 percent rate, effective January 1, 2018.3 Because of the reduced federal corporate income tax rate, the current balance of ADIT, that is, the dollar amounts of taxes that public utilities, interstate natural gas pipelines, and oil pipelines collected from customers in anticipation of paying the Internal Revenue Service (IRS), does not accurately reflect the current income tax liability. Additionally, the Tax Cuts and Jobs Act prohibits the use of bonus depreciation for assets acquired in the trade or business of the furnishing or sale of electrical energy or transportation of natural gas by pipeline.

    1 Tax Cuts and Jobs Act, Public Law 115-97, 131 Stat. 2054 (2017).

    2 The Commission has previously addressed a major change in the tax law when Congress passed the Tax Reform Act of 1986. See Rate Changes Related to the Federal Corporate Income Tax Rate for Public Utilities, Order No. 475, FERC Stats. & Regs. ¶ 30,752, order on reh'g, 41 FERC ¶ 61,029 (1987).

    3 Section 13001 of the Tax Cuts and Jobs Act.

    B. Requests for Commission Action

    3. In light of the Tax Cuts and Jobs Act, the Commission received letters from several entities requesting that the Commission act to ensure that the economic benefits related to the reduction in the federal corporate income tax rate are passed through to customers.4 These entities request, among other things, that the Commission investigate the continued justness and reasonableness of applicable Commission-jurisdictional rates and explore ways to adjust the transmission or transportation revenue requirements of Commission-jurisdictional entities to prevent customers from overpaying for service.

    4 These entities include State Advocates (States, state agencies, and state consumer advocates), Organization of PJM States, Inc., Organization of MISO States, American Public Gas Association, Process Gas Consumers Group, Natural Gas Supply Association, Natural Gas Indicated Shippers, Liquids Shippers Group, Oklahoma Attorney General, Gordon Gooch (pro se consumer), Advanced Energy Buyers Group, National Association of State Energy Officials, The R-Street Institute, Office of the Ohio Consumers' Counsel, and the Governor of Delaware. The Interstate Natural Gas Association of America, Edison Electric Institute and the Industrial Energy Consumers of America also sent letters to the Commission in reference to the effects of the Tax Cuts and Jobs Act.

    C. Commission's Actions

    4. Because the Tax Cuts and Jobs Act, among other things, reduces the federal corporate income tax rate from a maximum 35 percent to a flat 21 percent rate, beginning January 1, 2018, all public utilities, interstate natural gas pipelines, and oil pipelines subject to the federal corporate income tax will compute income taxes owed to the IRS based on a 21 percent tax rate. Most Commission-jurisdictional electric transmission and some non-transmission rates, most interstate natural gas transportation rates, and some oil pipeline rates (and Form No. 6, page 700) 5 are based on cost of service, which comprises all expenses incurred, including income taxes, plus a reasonable return on capital.6 When the tax expense decreases, so does the cost of service. The Commission must ensure that the rates, terms, and conditions of jurisdictional services under the Federal Power Act (FPA),7 the Natural Gas Act (NGA),8 and the Interstate Commerce Act 9 are just, reasonable, and not unduly discriminatory or preferential.

    5 Most oil pipeline rates are indexed. However, these indexed rates can be challenged on a cost-of-service basis and oil pipelines can also file to set their rates on a cost-of-service basis. When this document refers to cost-of-service ratemaking for oil pipelines, it also refers to the reporting practices oil pipelines use in the cost-of-service summary on Form No. 6, page 700.

    6Pub. Sys. v. FERC, 709 F.2d 73, 75 (DC Cir. 1983).

    7 16 U.S.C. 824d-e.

    8 15 U.S.C. 717-717w (2012).

    9 49 app. U.S.C. 1 et seq (1988).

    5. Because the federal corporate income tax rate has been reduced to 21 percent, the electric transmission rates of entities with stated rates or formula rates with fixed line items for the income tax rate will not accurately reflect their cost of service. Similarly, the transportation rates of interstate natural gas pipelines will not accurately reflect their cost of service.

    6. As such, in order to provide more immediate relief to customers of public utilities, pursuant to section 206 of the FPA,10 the Commission is concurrently issuing orders to show cause directing certain entities to propose revisions to the transmission rates in their open access transmission tariffs or transmission owner tariffs to reflect the change in the federal corporate income tax rate, or show cause why they should not be required to do so.11

    10 16 U.S.C. 824e.

    11AEP Appalachian Transmission Company, Inc., 162 FERC ¶ 61,225 (2018); Alcoa Power Generating Inc.—Long Sault Division, 162 FERC ¶ 61,224 (2018).

    7. The Commission also is concurrently issuing a Notice of Proposed Rulemaking (NOPR) 12 regarding natural gas pipelines. In the NOPR, the Commission proposes to require interstate natural gas pipelines to make an informational filing with the Commission regarding the effect on their revenue requirements of the (a) Tax Cuts and Jobs Act and (b) the Revised Policy Statement on Treatment of Income Taxes.13 The Revised Policy Statement establishes a policy that master limited partnerships (MLP) are not permitted to recover an income tax allowance in their cost of service. The NOPR proposes to collect financial information to evaluate the impact of the Tax Cuts and Jobs Act and the Revised Policy Statement on interstate natural gas pipelines' revenue requirement, and to permit such pipelines to voluntarily file rate reductions to reflect the decrease in the federal corporate income tax pursuant to the Tax Cuts and Jobs Act or the elimination of the MLP tax allowance, explain why no action is needed, or take no action other than filing the informational filing.

    12Interstate and Intrastate Natural Gas Pipelines; Rate Changes Relating to Federal Income Tax Rate, 162 FERC ¶ 61,226 (2018).

    13Inquiry Regarding the Commission's Policy for Recovery of Income Tax Costs, 162 FERC ¶ 61,227 (2018) (Revised Policy Statement).

    8. Unlike public utilities and interstate natural gas pipelines, the majority of oil pipelines set their rates using indexing, not cost-of-service ratemaking using an oil pipeline's particular costs. Under indexing, oil pipelines may adjust their rates annually, so long as those rates remain at or below the applicable ceiling levels. The ceiling levels change every July 1 based on an index that tracks industry-wide cost changes.14 Under currently effective requirements governing the schedule for indexing changes, the index will be re-assessed in 2020 based upon industry-wide oil pipeline cost changes between 2014 and 2019.15 While the Commission is not t