Federal Register Vol. 83, No.63,

Federal Register Volume 83, Issue 63 (April 2, 2018)

Page Range13817-14172
FR Document

83_FR_63
Current View
Page and SubjectPDF
83 FR 13974 - Free Application for Federal Student Aid (FAFSA®) Information To Be Verified for the 2019-2020 Award YearPDF
83 FR 14060 - Sunshine Act MeetingPDF
83 FR 13951 - Swiss-U.S. Privacy Shield; Invitation for Applications for Inclusion on the Supplemental List of ArbitratorsPDF
83 FR 13975 - Higher Education Hurricane and Wildfire Relief Program Application; Reopening of Comment PeriodPDF
83 FR 14066 - Sunshine Act MeetingsPDF
83 FR 14106 - Proposed Collection; Comment Request for Forms 12339, 12339-B, 12339-C, and 13775PDF
83 FR 13959 - Request for Information Regarding Bureau Guidance and Implementation SupportPDF
83 FR 14025 - Notice of Public Meeting for the Utah Resource Advisory Council/Recreation Resource Advisory CouncilPDF
83 FR 14105 - Proposed Collection; Comment Request for Regulation ProjectPDF
83 FR 13862 - Extension of Expiration Dates for Two Body System ListingsPDF
83 FR 14108 - Proposed Collection; Comment Request for Form 8892PDF
83 FR 14107 - Proposed Collection; Comment Request for Regulation ProjectPDF
83 FR 14017 - Meeting of the National Vaccine Advisory CommitteePDF
83 FR 13989 - Agency Information Collection Activities; Submission for OMB Review; Public Comment Request; Older American Act Title III and Title VII (Chapters 3 and 4) Annual State Program Reporting (Annual Performance Data Collection); This is a Revision to the Existing State Program Report (OMB Approval 0985-0008)PDF
83 FR 14073 - Submission for OMB Review; Comment RequestPDF
83 FR 14099 - Renewal of Cultural Property Advisory Committee CharterPDF
83 FR 13878 - Approval and Promulgation of Air Quality Implementation Plans; State of Maryland; Control of Emissions From Existing Commercial and Industrial Solid Waste Incinerator UnitsPDF
83 FR 14020 - Current List of HHS-Certified Laboratories and Instrumented Initial Testing Facilities Which Meet Minimum Standards To Engage in Urine Drug Testing for Federal AgenciesPDF
83 FR 14017 - National Advisory Committee on Rural Health and Human ServicesPDF
83 FR 13976 - CCPS Transportation, LLC; Notice of Petition for Declaratory OrderPDF
83 FR 13985 - Texas Gas Transmission, LLC; Notice of ApplicationPDF
83 FR 13975 - Gerald and Glenda Ohs, Gerald Ohs; Notice of Application for Partial Transfer of License and Soliciting Comments, Motions To Intervene, and ProtestsPDF
83 FR 13983 - Green River Devco LP; Notice of Request for Temporary WaiverPDF
83 FR 13988 - Agency Information Collection Activities: Proposed Collection; Comment RequestPDF
83 FR 14063 - Advisory Committee on Reactor Safeguards (ACRS); Meeting of the ACRS Subcommittee on Planning and Procedures; Notice of MeetingPDF
83 FR 14065 - New Postal ProductPDF
83 FR 14099 - Data Collection Available for Public CommentsPDF
83 FR 14099 - Reporting and Recordkeeping Requirements Under OMB ReviewPDF
83 FR 14101 - Notice of Final Federal Agency Actions on Proposed Highway in CaliforniaPDF
83 FR 13974 - Agency Information Collection Activities; Comment Request; Income Driven Repayment Plan Request for the William D. Ford Federal Direct Loans and Federal Family Education Loan ProgramsPDF
83 FR 13947 - Polyethylene Terephthalate Film, Sheet, and Strip From the People's Republic of China: Rescission of Antidumping Duty Administrative Review; 2016-2017PDF
83 FR 13974 - Agency Information Collection Activities; Comment Request; Federal Student Loan Program: Internship/Residency and Loan Debt Burden Forbearance FormsPDF
83 FR 13973 - Agency Information Collection Activities; Comment Request; Federal Student Loan Program Deferment Request FormsPDF
83 FR 14101 - Petition for Waiver of CompliancePDF
83 FR 13977 - Delta Solar II, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
83 FR 13975 - Delta Solar I, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
83 FR 13979 - Imperial Valley Solar 2, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
83 FR 13980 - Combined Notice of Filings #2PDF
83 FR 13978 - Combined Notice of Filings #1PDF
83 FR 13978 - Trishe Wind Ohio, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
83 FR 13981 - Walleye Energy, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
83 FR 13983 - Combined Notice of Filings #1PDF
83 FR 13976 - Combined Notice of Filings #1PDF
83 FR 13983 - NRG Cottonwood Tenant LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
83 FR 14043 - Angela L. Lorenzo, P.A.: Decision and OrderPDF
83 FR 14028 - Bernard Wilberforce Shelton, M.D.; Decision and OrderPDF
83 FR 13943 - Notice of Intent To Renew Information CollectionPDF
83 FR 14102 - Agency Information Collection; Activity Under OMB Review; Report of Financial and Operating Statistics for Small Aircraft OperatorsPDF
83 FR 14023 - Endangered and Threatened Wildlife and Plants; Draft Recovery Plan for Four Invertebrate Species of the Pecos River ValleyPDF
83 FR 14065 - Submission for Review: Standard Form 2800-Application for Death Benefits Under the Civil Service Retirement System (CSRS); Standard Form 2800A-Documentation and Elections in Support of Application for Death Benefits When Deceased Was an Employee at the Time of Death (CSRS)PDF
83 FR 14100 - Town Hall Meeting on Modernizing the Columbia River Treaty RegimePDF
83 FR 13955 - Programmatic Environmental Impact Statement (PEIS) for the Marine Mammal Health and Stranding Response ProgramPDF
83 FR 13948 - Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Advance Notification of Sunset ReviewPDF
83 FR 13949 - Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity To Request Administrative ReviewPDF
83 FR 14025 - National Register of Historic Places; Notification of Pending Nominations and Related ActionsPDF
83 FR 13952 - 1-Hydroxyethylidene-1, 1-Diphosphonic Acid From the People's Republic of China; Cold-Rolled Steel Flat Products From Japan; Hydrofluorocarbon Blends From the People's Republic of China; Light-Walled Rectangular Pipe and Tube From the People's Republic of China: Opening of Scope Segments and Opportunity To CommentPDF
83 FR 14100 - Release of Waybill DataPDF
83 FR 13957 - Proposed Information Collection; Comment Request; Office of National Marine Sanctuaries Visitor Centers SurveyPDF
83 FR 13958 - Submission for OMB Review; Comment RequestPDF
83 FR 13986 - Formations of, Acquisitions by, and Mergers of Bank Holding CompaniesPDF
83 FR 13986 - Notice of Proposals To Engage in or to Acquire Companies Engaged in Permissible Nonbanking ActivitiesPDF
83 FR 14100 - Fourteenth RTCA SC-230 Airborne Weather Detection Systems PlenaryPDF
83 FR 13903 - Elimination of Obligation To File Broadcast Mid-Term Report (Form 397) Under Section 73.2080(f)(2)PDF
83 FR 13944 - Information Collection Request; Assignment of Payment and Joint Payment AuthorizationPDF
83 FR 13946 - Large Diameter Welded Pipe From India, the People's Republic of China, the Republic of Korea, and the Republic of Turkey: Postponement of Preliminary Determinations in the Countervailing Duty InvestigationsPDF
83 FR 13992 - Agency Information Collection Activities; Proposed Collection; Comment Request; Regulations Under the Federal Import Milk ActPDF
83 FR 14064 - Information Collection: Requests to Non-Agreement States for InformationPDF
83 FR 14028 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Extension without Change of a Currently Approved Collection; Records of Acquisition and Disposition, Registered Importers of Arms, Ammunition & Implements of War on the U.S. Munitions Import ListPDF
83 FR 13885 - Airworthiness Directives; Airbus AirplanesPDF
83 FR 14021 - Agency Information Collection Activities: Submission for OMB Review; Comment Request; Crisis Counseling Assistance and Training ProgramPDF
83 FR 14062 - Agency Information Collection Activities: Proposed Collection; Comment Request; Generic Clearance for the Collection of Qualitative Feedback on Agency Service DeliveryPDF
83 FR 14100 - Research, Engineering and Development Advisory Committee MeetingPDF
83 FR 13849 - Implementation of the February 2017 Australia Group (AG) Intersessional Decisions and the June 2017 AG Plenary Understandings; Addition of India to the AGPDF
83 FR 14104 - Agency Information Collection Activities: Information Collection Renewal; Comment Request; Procedures To Enhance the Accuracy and Integrity of Information Furnished to Consumer Reporting Agencies Under Section 312 of the Fair and Accurate Credit Transactions ActPDF
83 FR 14016 - Mallinckrodt Inc. et al.; Withdrawal of Approval of Five New Drug ApplicationsPDF
83 FR 13982 - Notice of Commission Staff AttendancePDF
83 FR 13979 - Notice of Preliminary Permit Application Accepted for Filing and Soliciting Comments, Motions To Intervene, and Competing Applications; RAMM Power Group, LLCPDF
83 FR 13981 - Combined Notice of FilingsPDF
83 FR 13984 - Combined Notice of Filings #1PDF
83 FR 14103 - Agency Information Collection Activities: Information Collection Renewal; Comment Request; Guidance on Stress Testing for Banking Organizations With More Than $10 Billion in Total Consolidated AssetsPDF
83 FR 14018 - Proposed Collection; 60-Day Comment Request; The Genetic Testing RegistryPDF
83 FR 13919 - Endangered and Threatened Wildlife and Plants; Reclassifying the Hawaiian Goose From Endangered to Threatened With a 4(d) RulePDF
83 FR 14096 - Self-Regulatory Organizations; Cboe C2 Exchange, Inc.; Notice of Filing and Order Granting Accelerated Approval of a Proposed Rule Change Concerning an Affiliation Between the Exchange and Cboe Trading and To Adopt Rules To Permit Inbound Routing by Cboe TradingPDF
83 FR 14066 - Self-Regulatory Organizations; Cboe Exchange, Inc.; Order Approving a Proposed Rule Change To Amend Rules Related to the Complex Order BookPDF
83 FR 14074 - Self-Regulatory Organizations; Investors Exchange LLC; Notice of Filing of Proposed Rule Change To Establish a New Optional Listing Category on the Exchange, “LTSE Listings on IEX”PDF
83 FR 14068 - Aberdeen Asset Management Inc., et al.PDF
83 FR 13969 - Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces; Notice of Federal Advisory Committee MeetingPDF
83 FR 14026 - Uncoated Groundwood Paper From Canada Scheduling of the Final Phase of Countervailing Duty and Anti-Dumping Duty InvestigationsPDF
83 FR 14022 - 60-Day Notice of Proposed Information Collection: HUD Acquisition Regulation (HUDAR) (48 CFR 24)PDF
83 FR 13865 - Drawbridge Operation Regulation; Lake Washington Ship Canal, Seattle, WAPDF
83 FR 13866 - Drawbridge Operation Regulation; Willamette River at Portland, ORPDF
83 FR 13972 - Agency Information Collection Activities; Comment Request; U.S. Department of Education Grant Performance Report Form (ED 524B)PDF
83 FR 13869 - Approval of California Air Plan Revisions, San Diego County Air Pollution Control DistrictPDF
83 FR 13867 - Approval of California Air Plan Revisions, Yolo-Solano Air Quality Management DistrictPDF
83 FR 13872 - Air Plan Approval; KY: Removal of Reliance on Reformulated Gasoline in the Kentucky Portion of the Cincinnati-Hamilton AreaPDF
83 FR 14019 - National Library of Medicine Notice of Closed MeetingsPDF
83 FR 14019 - National Institute of Allergy and Infectious Diseases; Notice of Closed MeetingsPDF
83 FR 14018 - National Eye Institute; Notice of Closed MeetingPDF
83 FR 13904 - Civil PenaltiesPDF
83 FR 14045 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Mine Safety and Health Administration Grant Performance Reports Office of the SecretaryPDF
83 FR 13986 - CDC/HRSA Advisory Committee on HIV, Viral Hepatitis and STD Prevention and Treatment (CHACHSPT)PDF
83 FR 13987 - Board of Scientific Counselors, Office of Public Health Preparedness and Response, (BSC, OPHPR)PDF
83 FR 13987 - Board of Scientific Counselors, Office of Infectious Diseases (BSC, OID)PDF
83 FR 13875 - Air Plan Approval; Florida; Stationary Sources Emissions MonitoringPDF
83 FR 13865 - Drawbridge Operation Regulation; Hackensack River, Jersey City, New JerseyPDF
83 FR 13871 - Approval of California Air Plan Revisions, Northern Sierra Air Quality Management DistrictPDF
83 FR 13994 - Prescription Polyethylene Glycol 3350; Denial of a Hearing and Order Withdrawing Approval of Abbreviated New Drug ApplicationsPDF
83 FR 13866 - Drawbridge Operation Regulation; Sacramento River, Sacramento, CAPDF
83 FR 13970 - Arms Sales NotificationPDF
83 FR 13867 - Drawbridge Operation Regulation; Willamette River, Portland, ORPDF
83 FR 14047 - Notice of Revisions to Performance Area Four of LSC's Performance CriteriaPDF
83 FR 13990 - Food and Drug Administration Prescription Drug User Fee Act VI Benefit-Risk Implementation Plan; Request for CommentsPDF
83 FR 13967 - Arms Sales NotificationPDF
83 FR 13965 - Arms Sales NotificationPDF
83 FR 13826 - Civil Monetary Penalty Adjustments for InflationPDF
83 FR 13947 - President's Advisory Council on Doing Business In Africa (PAC-DBIA)PDF
83 FR 13883 - Airworthiness Directives; Airbus Helicopters Deutschland GmbH (Previously Eurocopter Deutschland GmbH) HelicoptersPDF
83 FR 13817 - Government Accountability Office, Administrative Practice and Procedure, Bid Protest Regulations, Government ContractsPDF
83 FR 13863 - Medical Devices; Technical AmendmentPDF
83 FR 13888 - Spectrum HorizonsPDF
83 FR 13945 - Emergency Food Assistance Program; Availability of Foods for Fiscal Year 2018PDF
83 FR 14110 - Milk in California; Proposal To Establish a Federal Milk Marketing OrderPDF
83 FR 13843 - Removal of Transferred OTS Regulations Regarding Consumer Protection in Sales of InsurancePDF
83 FR 13880 - Annual Stress Test-Applicability Transition for Covered Banks With $50 Billion or More in Assets; Technical and Conforming ChangesPDF
83 FR 13839 - Removal of Transferred OTS Regulations Regarding Minimum Security Procedures Amendments to FDIC RegulationsPDF
83 FR 14046 - Division of Coal Mine Workers' Compensation; Proposed Collection; Comment Request: Request To Be Selected as Payee (CM-910)PDF

Issue

83 63 Monday, April 2, 2018 Contents Agricultural Marketing Agricultural Marketing Service PROPOSED RULES Milk in California: Establishment of Federal Milk Marketing Order, 14110-14172 2018-06167 Agricultural Research Agricultural Research Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 13943 2018-06616 Agriculture Agriculture Department See

Agricultural Marketing Service

See

Agricultural Research Service

See

Commodity Credit Corporation

See

Farm Service Agency

See

Food and Nutrition Service

Alcohol Tobacco Firearms Alcohol, Tobacco, Firearms, and Explosives Bureau NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Records of Acquisition and Disposition, Registered Importers of Arms, Ammunition and Implements of War on U.S. Munitions Import List, 14028 2018-06593 Consumer Financial Protection Bureau of Consumer Financial Protection NOTICES Requests for Information: Bureau Guidance and Implementation Support, 13959-13965 2018-06674 Centers Disease Centers for Disease Control and Prevention NOTICES Meetings: Advisory Committee on HIV, Viral Hepatitis and STD Prevention and Treatment, 13986-13987 2018-06547 Board of Scientific Counselors Office of Infectious Diseases, 13987 2018-06545 Board of Scientific Counselors Office of Public Health Preparedness and Response, 13987-13988 2018-06546 Centers Medicare Centers for Medicare & Medicaid Services NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 13988-13989 2018-06645 Coast Guard Coast Guard RULES Civil Monetary Penalty Adjustments for Inflation, 13826-13839 2018-06486 Drawbridge Operations: Hackensack River, Jersey City, NJ, 13865 2018-06540 Lake Washington Ship Canal, Seattle, WA, 13865-13866 2018-06562 Sacramento River, Sacramento, CA, 13866-13867 2018-06536 Willamette River, Portland, OR, 13866-13867 2018-06534 2018-06561 Commerce Commerce Department See

Industry and Security Bureau

See

International Trade Administration

See

National Oceanic and Atmospheric Administration

Commodity Credit Commodity Credit Corporation NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Assignment of Payment and Joint Payment Authorization, 13944-13945 2018-06597 Community Living Administration Community Living Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Older American Act Title III and Title VII (Chapters 3 and 4) Annual State Program Reporting, 13989-13990 2018-06662 Comptroller Comptroller of the Currency NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Guidance on Stress Testing for Banking Organizations with More than 10 Billion Dollars in Total Consolidated Assets, 14103-14104 2018-06573 Procedures to Enhance Accuracy and Integrity of Information Furnished to Consumer Reporting Agencies under Fair and Accurate Credit Transactions Act, 14104-14105 2018-06580 Defense Department Defense Department NOTICES Arms Sales, 13965-13972 2018-06529 2018-06530 2018-06535 Meetings: Defense Advisory Committee on Investigation Prosecution and Defense of Sexual Assault in Armed Forces, 13969-13970 2018-06566 Drug Drug Enforcement Administration NOTICES Decisions and Orders: Angela L. Lorenzo, P.A., 14043-14045 2018-06618 Bernard Wilberforce Shelton, M.D., 14028-14043 2018-06617 Education Department Education Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Federal Student Loan Program Deferment Request Forms, 13973 2018-06634 Federal Student Loan Program: Internship/Residency and Loan Debt Burden Forbearance Forms, 13974 2018-06635 Higher Education Hurricane and Wildfire Relief Program Application; Reopening of Comment Period, 13975 2018-06729 Income Driven Repayment Plan Request for William D. Ford Federal Direct Loans and Federal Family Education Loan Programs, 13974-13975 2018-06637 U.S. Department of Education Grant Performance Report Form, 13972-13973 2018-06560 Free Applications for Federal Student Aid: Information to be Verified for 2019-2020 Award Year, 13974 C1--2018--06278 Energy Department Energy Department See

Federal Energy Regulatory Commission

Environmental Protection Environmental Protection Agency RULES Air Quality State Implementation Plans; Approvals and Promulgations: California; Northern Sierra Air Quality Management District, 13871-13872 2018-06538 California; San Diego County Air Pollution Control District, 13869-13871 2018-06559 California; Yolo-Solano Air Quality Management District, 13867-13869 2018-06558 Florida; Stationary Sources Emissions Monitoring, 13875-13878 2018-06542 Kentucky; Removal of Reliance on Reformulated Gasoline in Kentucky Portion of Cincinnati-Hamilton Area, 13872-13875 2018-06557 Maryland; Control of Emissions from Existing Commercial and Industrial Solid Waste Incinerator Units, 13878-13879 2018-06653 Farm Service Farm Service Agency NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Assignment of Payment and Joint Payment Authorization, 13944-13945 2018-06597 Federal Aviation Federal Aviation Administration PROPOSED RULES Airworthiness Directives: Airbus Airplanes, 13885-13888 2018-06590 Airbus Helicopters Deutschland GmbH (Previously Eurocopter Deutschland GmbH) Helicopters, 13883-13885 2018-06448 NOTICES Meetings: Fourteenth RTCA SC-230 Airborne Weather Detection Systems Plenary, 14100 2018-06600 Research, Engineering and Development Advisory Committee, 14100-14101 2018-06586 Federal Communications Federal Communications Commission PROPOSED RULES Elimination of Obligation to File Broadcast Mid-Term Report, 13903-13904 2018-06599 Spectrum Horizons, 13888-13903 2018-06179 Federal Deposit Federal Deposit Insurance Corporation RULES Removal of Transferred OTS Regulations Regarding Consumer Protection in Sales of Insurance, 13843-13849 2018-06163 Removal of Transferred OTS Regulations Regarding Minimum Security Procedures, 13839-13843 2018-06161 PROPOSED RULES Annual Stress Tests: Applicability Transition for Covered Banks with 50 Billion Dollars or More in Assets; Technical and Conforming Changes, 13880-13883 2018-06162 Federal Emergency Federal Emergency Management Agency NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Crisis Counseling Assistance and Training Program, 14021-14022 2018-06588 Federal Energy Federal Energy Regulatory Commission NOTICES Applications: Texas Gas Transmission, LLC, 13985-13986 2018-06648 Combined Filings, 13976-13985 2018-06575 2018-06576 2018-06620 2018-06621 2018-06624 2018-06625 Initial Market-Based Rate Filings Including Requests for Blanket Section 204 Authorizations: Delta Solar I, LLC, 13975 2018-06627 Delta Solar II, LLC, 13977-13978 2018-06628 Imperial Valley Solar 2, LLC, 13979-13980 2018-06626 NRG Cottonwood Tenant, LLC, 13983 2018-06619 Trishe Wind Ohio, LLC, 13978 2018-06623 Walleye Energy, LLC, 13981 2018-06622 License Transfer Applications: Gerald and Glenda Ohs; Gerald Ohs, 13975-13976 2018-06647 Petitions for Declaratory Orders: CCPS Transportation, LLC, 13976 2018-06649 Preliminary Permit Applications: RAMM Power Group, LLC, 13979 2018-06577 Requests for Temporary Waivers: Green River Devco, LP, 13983 2018-06646 Staff Attendances, 13982-13983 2018-06578 Federal Highway Federal Highway Administration NOTICES Final Federal Agency Actions on Proposed Highways in California, 14101 2018-06639 Federal Railroad Federal Railroad Administration NOTICES Petitions for Waivers of Compliance, 14101-14102 2018-06629 Federal Reserve Federal Reserve System NOTICES Formations of, Acquisitions by, and Mergers of Bank Holding Companies, 13986 2018-06602 Proposals to Engage in or to Acquire Companies Engaged in Permissible Nonbanking Activities, 13986 2018-06601 Fish Fish and Wildlife Service PROPOSED RULES Endangered and Threatened Species: Reclassifying Hawaiian Goose from Endangered to Threatened, 13919-13942 2018-06571 NOTICES Endangered and Threatened Species: Draft Recovery Plan for Four Invertebrate Species of Pecos River Valley, 14023-14025 2018-06614 Food and Drug Food and Drug Administration RULES Medical Devices: Technical Amendment, 13863-13865 2018-06308 NOTICES Abbreviated New Drug Applications; Approval Withdrawals: Prescription Polyethylene Glycol 3350, 13994-14016 2018-06537 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Regulations under the Federal Import Milk Act, 13992-13994 2018-06595 New Drug Applications: Mallinckrodt Inc. et al.; Withdrawal of Approval, 14016-14017 2018-06579 Prescription Drug User Fee Act VI Benefit-Risk Implementation Plan, 13990-13992 2018-06531 Food and Nutrition Food and Nutrition Service NOTICES Emergency Food Assistance Program: Availability of Foods for Fiscal Year 2018, 13945-13946 2018-06177 Government Accountability Government Accountability Office RULES Administrative Practice and Procedure, Bid Protest Regulations, Government Contracts, 13817-13826 2018-06413 Health and Human Health and Human Services Department See

Centers for Disease Control and Prevention

See

Centers for Medicare & Medicaid Services

See

Community Living Administration

See

Food and Drug Administration

See

Health Resources and Services Administration

See

National Institutes of Health

See

Substance Abuse and Mental Health Services Administration

NOTICES Meetings: National Vaccine Advisory Committee, 14017-14018 2018-06663
Health Resources Health Resources and Services Administration NOTICES Meetings: National Advisory Committee on Rural Health and Human Services, 14017 2018-06651 Homeland Homeland Security Department See

Coast Guard

See

Federal Emergency Management Agency

See

Transportation Security Administration

RULES Civil Monetary Penalty Adjustments for Inflation, 13826-13839 2018-06486
Housing Housing and Urban Development Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 14022-14023 2018-06563 Industry Industry and Security Bureau RULES Implementation of February 2017 Australia Group (AG) Intersessional Decisions and June 2017 AG Plenary Understandings; Addition of India to AG, 13849-13862 2018-06581 Interior Interior Department See

Fish and Wildlife Service

See

Land Management Bureau

See

National Park Service

Internal Revenue Internal Revenue Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 14105-14108 2018-06664 2018-06665 2018-06666 2018-06670 2018-06672 2018-06675 International Trade Adm International Trade Administration NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: 1-Hydroxyethylidene-1, 1-Diphosphonic Acid from the People's Republic of China; Cold-Rolled Steel Flat Products from Japan; Hydrofluorocarbon Blends from the People's Republic of China; Light-Walled Rectangular Pipe and Tube from the People's Republic of China, 13952-13955 2018-06607 Advance Notification of Sunset Review, 13948-13949 2018-06610 Large Diameter Welded Pipe from India, the People's Republic of China, Republic of Korea, and Republic of Turkey, 13946-13947 2018-06596 Opportunity to Request Administrative Review, 13949-13951 2018-06609 Polyethylene Terephthalate Film, Sheet, and Strip from the People's Republic of China, 13947-13948 2018-06636 Meetings: President's Advisory Council on Doing Business in Africa, 13947 2018-06477 Requests for Applications: Swiss-U.S. Privacy Shield; Inclusion on Supplemental List of Arbitrators, 13951-13952 2018-06737 International Trade Com International Trade Commission NOTICES Investigations; Determinations, Modifications, and Rulings, etc.: Uncoated Groundwood Paper from Canada, 14026-14028 2018-06565 Justice Department Justice Department See

Alcohol, Tobacco, Firearms, and Explosives Bureau

See

Drug Enforcement Administration

Labor Department Labor Department See

Workers Compensation Programs Office

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Mine Safety and Health Administration Grant Performance Reports, 14045-14046 2018-06549
Land Land Management Bureau NOTICES Meetings: Utah Resource Advisory Council/Recreation Resource Advisory Council, 14025 2018-06673 Legal Legal Services Corporation NOTICES Meetings; Sunshine Act, 14060-14062 2018-06782 Performance Criteria: Revisions to Performance Area Four, 14047-14060 2018-06532 Merit Merit Systems Protection Board NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals Generic Clearance for Collection of Qualitative Feedback on Agency Service Delivery, 14062-14063 2018-06587 National Highway National Highway Traffic Safety Administration PROPOSED RULES Civil Penalties, 13904-13919 2018-06550 National Institute National Institutes of Health NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Genetic Testing Registry, 14018 2018-06572 Meetings: National Eye Institute, 14018-14019 2018-06553 National Institute of Allergy and Infectious Diseases, 14019 2018-06554 National Library of Medicine, 14019 2018-06555 National Oceanic National Oceanic and Atmospheric Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 13958-13959 2018-06603 2018-06604 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Office of National Marine Sanctuaries Visitor Centers Survey, 13957-13958 2018-06605 Environmental Impact Statements; Availability, etc.: Marine Mammal Health and Stranding Response Program, 13955-13957 2018-06611 National Park National Park Service NOTICES National Register of Historic Places: Pending Nominations and Related Actions, 14025-14026 2018-06608 Nuclear Regulatory Nuclear Regulatory Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Requests to Non-Agreement States for Information, 14064-14065 2018-06594 Meetings: Advisory Committee on Reactor Safeguards Subcommittee on Planning and Procedures, 14063-14064 2018-06644 Personnel Personnel Management Office NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Application for Death Benefits under Civil Service Retirement System; and Documentation and Elections in Support of Application for Death Benefits When Deceased Was Employee at Time of Death, 14065 2018-06613 Postal Regulatory Postal Regulatory Commission NOTICES New Postal Products, 14065-14066 2018-06643 Securities Securities and Exchange Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 14073-14074 2018-06658 Applications: Aberdeen Asset Management, Inc., et al., 14068-14073 2018-06567 Meetings; Sunshine Act, 14066 2018-06695 Self-Regulatory Organizations; Proposed Rule Changes: Cboe C2 Exchange, Inc., 14096-14098 2018-06570 Cboe Exchange, Inc., 14066-14068 2018-06569 Investors Exchange, LLC, 14074-14096 2018-06568 Small Business Small Business Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 14099 2018-06641 2018-06642 Social Social Security Administration RULES Extension of Expiration Dates for Two Body System Listings, 13862-13863 2018-06671 State Department State Department NOTICES Charter Renewals: Cultural Property Advisory Committee, 14099-14100 2018-06656 Meetings: Modernizing Columbia River Treaty Regime, 14100 2018-06612 Substance Substance Abuse and Mental Health Services Administration NOTICES Certified Laboratories and Instrumented Initial Testing Facilities: List of Facilities that Meet Minimum Standards to Engage in Urine Drug Testing for Federal Agencies, 14020-14021 2018-06652 Surface Transportation Surface Transportation Board NOTICES Releases of Waybill Data, 14100 2018-06606 Transportation Department Transportation Department See

Federal Aviation Administration

See

Federal Highway Administration

See

Federal Railroad Administration

See

National Highway Traffic Safety Administration

See

Transportation Statistics Bureau

Security Transportation Security Administration RULES Civil Monetary Penalty Adjustments for Inflation, 13826-13839 2018-06486 Transportation Statistics Transportation Statistics Bureau NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Report of Financial and Operating Statistics for Small Aircraft Operators, 14102-14103 2018-06615 Treasury Treasury Department See

Comptroller of the Currency

See

Internal Revenue Service

Workers' Workers Compensation Programs Office NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Request to be Selected as Payee, 14046-14047 2018-05624 Separate Parts In This Issue Part II Agriculture Department, Agricultural Marketing Service, 14110-14172 2018-06167 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 63 Monday, April 2, 2018 Rules and Regulations GOVERNMENT ACCOUNTABILITY OFFICE 4 CFR Part 21 Government Accountability Office, Administrative Practice and Procedure, Bid Protest Regulations, Government Contracts AGENCY:

Government Accountability Office.

ACTION:

Final rule.

SUMMARY:

This document amends the Government Accountability Office's (GAO) Bid Protest Regulations, promulgated in accordance with the Competition in Contracting Act of 1984 (CICA), to implement the requirements in sec. 1501 of the Consolidated Appropriations Act for Fiscal Year 2014, which was enacted on January 14, 2014. These amendments implement the legislation's direction to establish and operate an electronic filing and document dissemination system for the filing of bid protests with GAO. The amendments also include administrative changes to reflect current practice, to streamline the bid protest process, and to make clerical corrections.

DATES:

This rule is effective: May 1, 2018.

FOR FURTHER INFORMATION CONTACT:

Ralph O. White (Managing Associate General Counsel, [email protected]), Kenneth E. Patton (Managing Associate General Counsel, [email protected]) or Jonathan L. Kang (Senior Attorney, [email protected]).

SUPPLEMENTARY INFORMATION: Background

On April 16, 2016, GAO published a proposed rule (81 FR 22197) to amend its Bid Protest Regulations. The supplementary information included with the proposed rule explained that the proposed revisions to GAO's Bid Protest Regulations were promulgated in accordance with CICA, as the result of a statutory requirement imposed by the Consolidated Appropriations Act for 2014, Public Law 113-76, 128 Stat. 5 (Jan. 14, 2014). Section 1501 of this act directs GAO to establish and operate an electronic filing and document dissemination system, “under which, in accordance with procedures prescribed by the Comptroller General—(A) a person filing a protest under this subchapter may file the protest through electronic means; and (B) all documents and information required with respect to the protest may be disseminated and made available to the parties to the protest through electronic means.” Public Law 113-76, div. I, title I, sec. 1501, 128 Stat. 5, 433-34 (Jan. 17, 2014). The proposed rule advised that GAO was developing the system, which is called the Electronic Protest Docketing System (EPDS). As of the effective date of this final rule, EPDS will be the sole means for filing a bid protest at GAO (with the exception of protests containing classified information) and will enable parties to a bid protest and GAO to file and receive documents. Additional guidance for the use of EPDS is provided by GAO in the EPDS Instructions, which are available at https://epds.gao.gov/login.

In addition to directing GAO to establish and operate an electronic filing and document dissemination system, sec. 1501 of the Consolidated Appropriations Act for 2014 authorizes GAO to “require each person who files a protest under this subchapter to pay a fee to support the establishment and operation of the electronic system under this subsection.” Public Law 113-76, div. I, title I, sec. 1501, 128 Stat. 5, 434 (Jan. 17, 2014). The proposed rule advised that GAO will require persons filing a protest to pay a fee to file a protest through EPDS, and that GAO anticipates that the fee will be $350. Additional guidance regarding procedures for payment of the fee is available in the EPDS Instructions.

Finally, the proposed rule addressed other administrative changes to reflect current practice and to streamline the bid protest process.

Summary of Comments

GAO received a total of 34 timely comments by the closing date of May 16, 2016. GAO received 6 comments from federal agencies; 11 comments from businesses (including 2 comments from the same business on different dates), all of which were identified as small businesses; 2 comments from professional associations; 3 comments from law firms and consulting firms; and 12 comments from individuals or anonymous commentators. In adopting this final rule, GAO has carefully considered all comments received.

Electronic Protest Docketing System (EPDS) Request for More Details

Seven commentators requested additional information as to how EPDS will function. For example, the commentators asked for information concerning how the implementation of EPDS will occur, how to pay the fee, how documents will be uploaded and distributed through EPDS, how agencies will be notified by GAO of the filing of a protest, and the security provisions for EPDS.

GAO response: The purpose of the proposed revisions to our regulations is to implement sec. 1501 of the Consolidated Appropriations Act for Fiscal Year 2014 and to make certain administrative changes to reflect current practice and to streamline the bid protest process. GAO has issued guidance regarding EPDS, including the transition to EPDS, at https://epds.gao.gov/login. Additional information regarding the procedures for using EPDS is available in the EPDS Instructions.

Classified Documents

GAO proposed to revise redesignated paragraph (g) of 4 CFR 21.1 to clarify how a document is “filed” under GAO's Bid Protest Regulations by specifying that EPDS will be the sole method for filing a document with GAO for a bid protest—with the exception of protests containing classified material, as explained in a sentence added to the revised paragraph (h) of 4 CFR 21.1. The revisions throughout this final rule reflect that all filings are presumed to be made through EPDS (with the exception of protests containing classified material), which will enable the parties and GAO to file and receive documents.

Two commentators suggested that the proposed rule at paragraph (h) of 4 CFR 21.1, which states that classified documents “may not” be filed through EPDS, should be revised to use more expressly prohibitive language.

GAO response: GAO agrees with the suggestion and will revise our regulations to state that documents with classified material “shall not” be filed through EPDS.

One commentator requested that GAO clarify that the prohibition on filing documents containing “classified” material does not refer to proprietary or source-selection sensitive information.

GAO response: GAO does not believe that the rule requires clarification, but affirms here that the term “classified” refers to information deemed classified by a United States government agency for national security reasons, and not to information that is proprietary or source-selection sensitive.

One commentator requested that we revise the rules to provide for alternative filing procedures for documents that contain classified material.

GAO response: As discussed above, the EPDS Instructions provide guidance regarding the use of EPDS. Consistent with current practice, the EPDS Instructions direct parties to contact GAO for guidance in filing documents that contain classified material.

Exclusive Use of EPDS

One commentator opposed the proposed rule in redesignated paragraph (g) of 4 CFR 21.1 that EPDS will be the sole means for filing documents in a bid protest. The commentator expressed concern that some documents may be unsuitable due to size or other formatting issues for electronic submission.

GAO response: GAO confirms that EPDS will be the sole means for filing documents in connection with a protest, with two exceptions: (1) Documents containing classified material, and (2) documents that, for reasons of size or format, are not suitable for filing through EPDS. The EPDS Instructions address the process for filing these two categories of documents.

Additional Corrections

The final rule makes additional minor corrections to paragraphs (c), (f), and (h) of 4 CFR 21.3 to reflect that documents must be filed through EPDS.

Filing Fee for Bid Protests

The proposed rule advised that GAO anticipates requiring persons filing a protest to pay a fee to file a protest through EPDS, which, as discussed above, will be the sole means for filing a bid protest at GAO. GAO advised that the anticipated fee will be $350. The EPDS Instructions address how persons filing a protest must pay the fee, and the circumstances under which the fee will apply. A fee will be required for filing a protest. At this time, additional fees will not be required for supplemental protests, requests for reconsideration, requests for recommendation for reimbursement of costs, or requests for recommendation on the amount of costs.

Support and Opposition to the Fee

GAO received six comments in favor of the proposed fee.

Five commentators advocated for a higher fee. One commentator proposed requiring an additional, potentially higher fee for each supplemental protest, because, in the commentator's view, protesters routinely supplement their protests with more arguments in an attempt to circumvent timeliness or engage in “gamesmanship.” One commentator proposed requiring protesters to file fees based on a graduated scale to discourage what the commentator viewed as “serial” or frequent protesters. Under the proposed graduated scale, a protester would be required to file higher fees if it files multiple protests during the course of a year, e.g., a base fee for the first five protests, twice the base fee for more than five but less than eight protests, and four times the base fee for more than eight protests.

One commentator suggested that a fee of up to $1,000 would be appropriate, and that the overall goal of the fee should be the reduction of GAO's caseload, which would in turn permit GAO to issue decisions in fewer days. The same commentator suggested that a fee that was based on a percentage of the value of the procurement could be appropriate.

One commentator supported the fee and expressed the view that a fee could discourage “frivolous” protests.

Fifteen commentators opposed the proposed fee. All of the commentators opposed to the fee recommended that GAO either establish a lower fee for small businesses or waive the fee for small businesses.

Fourteen commentators opposed the fee on the basis that the fee creates a barrier to filing protests for small businesses, some of which stated that they lack the resources to pay the fee. In particular, one commentator argued that a $350 fee would make a protest economically infeasible for small businesses seeking the award of very small contracts.

Two commentators argued that because GAO is funded through appropriated funds a separate fee for bid protests is not warranted.

One commentator argued that a fee is not justified because GAO's bid protest forum is not staffed by judges, and that a fee should not be imposed in a manner similar to that imposed by a court. Another commentator argued that a fee is not justified because GAO does not have the same authority to enforce its decisions as a court.

One commentator argued that the fee is an attempt by GAO to discourage bid protests and thereby limit oversight over improper contracting actions by agencies. The commentator opposed the fee based on what the commentator views as GAO's failure to be an effective forum for the resolution of protests concerning small businesses, veteran-owned small businesses, and service-disabled veteran-owned small businesses. The commentator also opposed the fee on the basis that GAO failed to conduct adequate outreach to service-disabled veteran-owned small businesses—in particular, the commentator.

One commentator, while not expressly opposed to the fee, proposed a periodic reassessment of the fee to consider its impact on small business.

GAO response: GAO has considered all of the comments submitted regarding the proposed fee for filing a protest through EPDS. Additionally, GAO solicited views concerning the proposed fee from a number of business groups and associations that represent small businesses, including veteran-owned businesses, women-owned businesses, and minority-owned businesses. Further, although GAO is not subject to the Administrative Procedures Act, GAO voluntarily issued the proposed rule (81 FR 22197, Apr. 16, 2016) and invited comments.

As discussed in the proposed rule, sec. 1501 of the Consolidated Appropriations Act for 2014 directs GAO to establish and operate an electronic filing and document dissemination system, and authorizes GAO to “require each person who files a protest under this subchapter to pay a fee to support the establishment and operation of the electronic system under this subsection.” Public Law 113-76, div. I, title I, sec. 1501, 128 Stat. 5, 434 (Jan. 17, 2014). GAO derived the $350 fee using a methodology that took into account development costs for EPDS, estimates of hosting and maintenance costs, estimates of future bid protest filings, and a recovery period for development costs of approximately seven years.

GAO does not intend for the fee to discourage or reduce the number of protests. Rather, the proposed fee will cover the costs of establishing and operating EPDS. GAO does not agree with the proposals to charge a fee that is higher than necessary to address the costs of EPDS or for the purpose of discouraging protests. With regard to a lower fee or fee waiver for small businesses, GAO has concluded that the anticipated fee of $350 is appropriate given the costs of the system. Additionally, GAO has concluded that the interest of administrative efficiency supports imposition of a uniform fee for all protests.

GAO will monitor the fee to ensure that it is properly calibrated to recover the costs of establishing and maintaining the system. Any adjustment to the fee based on the review will reflect changes in the costs of EPDS, as is consistent with the statutory direction.

Other Comments on the Fee

In addition to the comments regarding the requirement for a fee and the amount of the fee, GAO received six additional comments.

One commentator proposed that the requirement to pay a fee be expressly incorporated into 4 CFR 21.1, and that the regulation specify that failure to pay the fee will result in dismissal of a protest.

GAO response: GAO believes that the proposed rule makes clear that filing protests through EPDS is mandatory, other than classified protests, and GAO has advised that filing a protest through EPDS will require a fee. The EPDS Instructions provide additional guidance for the use of EPDS. GAO confirms that EPDS will not permit the filing of a protest without confirmation of payment. GAO also confirms that the filing of classified protests will also require payment of a fee.

Three commentators recommended that protesters be automatically refunded or reimbursed the fee if GAO sustains a protest.

GAO response: GAO does not agree that the fee should be automatically reimbursed by GAO if a protest is sustained. Instead, paragraph (d) of 4 CFR 21.8 provides that, if GAO sustains a protest, GAO may recommend that the agency reimburse the protester's costs of pursuing its protest. Additionally, paragraph (e) of 4 CFR 21.8 provides that, where an agency takes corrective action in response to a protest, the protester may request that GAO recommend that the agency reimburse the protester's costs of pursuing its protest. Fees will be reimbursable costs of pursuing a protest in the event GAO recommends that the agency reimburse protest costs.

Two commentators proposed that protesters be automatically refunded or reimbursed the fee if an agency takes corrective action in response to a protest.

GAO response: GAO does not agree that the fee should be automatically reimbursed by GAO if an agency takes corrective action in response to a protest. Instead, paragraph (e) of 4 CFR 21.8 provides that, if an agency decides to take corrective action in response to a protest, the protester may request that GAO recommend that the agency reimburse the protester's costs of pursuing the protest. Fees will be reimbursable costs of pursuing a protest in the event GAO recommends that the agency reimburse protest costs.

Filing a Protest

One commentator asked whether, in light of the requirement to file all documents with GAO through EPDS, protesters will continue to be required to provide a copy of the protest to the contracting officer, as required by paragraph (e) of 4 CFR 21.1.

GAO response: GAO did not revise the requirement to provide a copy of the protest to the contracting officer, as required by paragraph (e) of 4 CFR 21.1. GAO believes that this requirement, which is separate from the requirement to file documents with GAO through EPDS, remains an important requirement so that contracting officers are provided prompt notice of protests, which enables them to meet their obligations to notify interested parties, as required by Federal Acquisition Regulation section 33.104(a)(2) and paragraph (a) of 4 CFR 21.3.

One commentator requested that redacted versions of protests should be posted in EPDS in a manner that is available to the public.

GAO response: EPDS does not allow access to documents, redacted or otherwise, to non-parties.

Time for Filing

GAO proposed to revise paragraph (a) of 4 CFR 21.2 to clarify that where a basis for challenging a solicitation becomes known after the solicitation's closing date, but the solicitation does not establish a new closing date, the protest must be filed within 10 days of when the protester knew or should have known of that basis—regardless of whether the time period for filing other protest claims was “tolled” because a required debriefing had been requested. The revision was proposed to address a conflict as to which of our timeliness rules—21.2(a)(1) or 21.2(a)(2)—takes precedence where a solicitation impropriety becomes apparent after proposals have been submitted, but there is no opportunity to submit revised proposals. Our Office addressed this issue in two decisions: Protect the Force, Inc.—Reconsideration, B-411897.3, Sept. 30, 2015, 2015 CPD ¶ 306, and Armorworks Enterprises, LLC, B-400394, B-400394.2, Sept. 23, 2008, 2008 CPD ¶ 176. The revision as proposed makes 4 CFR 21.2(a)(2) consistent with the policy outlined in those decisions.

One commentator opposed the proposed revision to paragraph (a)(2) of 4 CFR 21.2 and argued that the policy established in the two decisions should be reversed. The commentator argued that allowing protests concerning this type of solicitation impropriety to be “tolled” until after a required and requested debriefing has been provided would avoid the possibility of a protester with “mixed” protest claims (i.e., claims of an alleged solicitation impropriety as well as claims concerning the source selection) from being required to file two separate protests.

GAO response: GAO believes the revision is necessary to reflect our decisions and to avoid the conflict in the current rules. As an initial matter, the circumstance described by the commentator arises in exceedingly few protests. In any event, and as discussed in the two decisions that address this issue, there is sound policy underlying the proposed revision. Namely, the revision advances the principle that allegations of solicitation improprieties should be resolved as early as possible in the procurement process in order to promote fairness and efficiency. Further, adopting the policy advocated by the commentator could result in protesters and agencies unnecessarily expending time and resources on actions—such as preparing a protest concerning a source selection decision, in the protester's case, and preparing and providing debriefings, in the agency's case—in instances where there is merit in the allegation regarding the solicitation impropriety. For these reasons, we decline to eliminate the revision as requested by the commentator.

Communication Among Parties

GAO proposed to revise paragraph (a) of 4 CFR 21.3 to require that parties to a protest provide copies of all protest communications “to the agency and to other participating parties” either through EPDS or email.

Three commentators expressed concern that the proposed revision would require parties to copy all other parties on all exchanges concerning the protest, including strategy or settlement communications.

GAO response: The proposed revision to paragraph (a) of 4 CFR 21.3 was not intended to prohibit the parties from engaging in communications that do not involve GAO, or communications between some, but not all parties. Rather, the rule was intended to update the current rule to include EPDS. The current rule requires all parties to be copied on all protest communications, which, in practice, means that when a party communicates with GAO, it must copy the other parties. To avoid confusion, GAO will revise the final rule to provide that parties must copy all other parties on communications with GAO.

Two commentators requested clarification as to how GAO will communicate with parties after the implementation of EPDS.

GAO response: As discussed above, the EPDS Instructions provide guidance regarding the use of EPDS. EPDS will provide email notification to parties of communications by GAO to the parties transmitted through EPDS. GAO also anticipates that some communications to the parties will continue to be made through email and telephone, as appropriate.

Additional Documents

GAO proposed to revise paragraph (c) of 4 CFR 21.3 to clarify that if the fifth day for filing the agency's required response to a protester's request for documents falls on a weekend or federal holiday, the response shall be filed on the last business day that precedes the weekend or federal holiday.

Calculating the Due Date

One commentator expressed support for the revision to paragraph (c) because it avoids a potential ambiguity as to the due date for the agency's response.

One commentator objected to the revision to paragraph (c) because it results in less time for agencies to prepare their responses to document requests and allows protesters more time to object to an agency's list of documents to be filed.

GAO response: GAO believes that a revision to the date for the agency's response is required due to a potential ambiguity when the due date falls on a weekend or federal holiday. The resolution of the ambiguity necessarily results in either a longer or shorter time for agencies to respond. GAO concludes that a potentially shorter time for the agency's response, and potentially longer time for the protester to identify concerns or objections regarding the agency's response, is consistent with our statutory obligation to resolve protests within 100 days.

Filing Before the Due Date

One commentator suggested that the requirement to file an agency's response “on the last business day . . .”, should be revised to require filing “by the last business day . . .”, to reflect an agency may file its response earlier.

GAO response: GAO agrees that the use of the term “by,” rather than “on” is appropriate and will revise paragraph (c) of 4 CFR 21.3 in the final rule to reflect this change.

Submission of the Agency Report

One commentator expressed the view that paragraph (d) of 4 CFR 21.3, which requires the agency report to “include” a contracting officer's statement, inadvertently suggests that the memorandum of law is part of the contracting officer's statement.

GAO response: Although this language was not proposed for revision, and does not appear to have caused confusion for agencies in the preparation of their agency reports, GAO agrees that placing the phrase “including a best estimate of the contract value” in parentheses avoids any implication that the contracting officer is responsible for preparing a memorandum of law. This revision is reflected in the final rule.

One commentator objected to the revision to paragraph (d) of 4 CFR 21.3, which currently requires the agency report to include a copy of the protest. The commentator argued that the protest is a relevant document that should be included in the report.

GAO response: We believe that inclusion of a copy of the protest is no longer required because this document will already have been filed through EPDS. This revision is reflected in the final rule.

Protective Orders Filing Redactions

GAO proposed to redesignate paragraph (b) of 4 CFR 21.4 as paragraph (c), redesignate paragraph (c) as paragraph (d), redesignate paragraph (d) as paragraph (e), and add a new paragraph (b). New paragraph (b) provides that when parties file documents that are covered by a protective order, the parties must provide copies of proposed redacted versions of the document to the other parties within 1 day after the protected version is filed. Proposed redacted versions of documents should not be filed through EPDS; rather, the party responsible for preparing the proposed redacted version of the document should provide the document to the other parties by email or facsimile. New paragraph (b) provides that, where appropriate, the exhibits to the agency report or other documents may be proposed for redaction in their entirety. Additionally, new paragraph (b) provides that the party that files the protected document must file through EPDS within 5 days a final, agreed-to redacted version of the document. New paragraph (b) also directs the parties to seek GAO's resolution of any disputes concerning redacted documents.

Five commentators expressed concern that requirements to prepare and review proposed and final redacted versions of documents will place a burden on parties because of the resources required to prepare and approve the redactions. One commentator argued that a requirement to prepare redacted versions of all documents filed under a protective order would be inconsistent with GAO's statutory mandate under CICA to provide for the inexpensive resolution of bid protests.

Two commentators expressed the view that the “current practice” for parties filing protected documents is for the parties to negotiate among themselves as to which documents should remain under the protective order in their entirety and which documents should be redacted for release outside the protective order. These commentators suggested that the proposed rule in new paragraph (b) be revised to allow the parties “flexibility” in deciding which documents to redact. One commentator expressed concern that the requirement that the agency prepare redacted versions that inform pro se parties will be burdensome. Another commentator expressed specific concern with regard to pro se intervenors where there is a protester represented by counsel admitted to a protective order.

GAO response: Paragraph 2 of GAO's standard protective order requires parties to file proposed redacted versions of every document marked protected. GAO recognizes, however, that the practice among parties in many protests is to agree not to prepare redacted versions of all documents. GAO also recognizes that preparation of redacted versions of documents requires resources on the part of the parties that prepare them and on the part of the other parties who must review them. GAO will revise new paragraph (b) of 4 CFR 21.4 to provide that when a party files a document in EPDS that is marked protected, that party must, at the request of another party, provide a proposed redacted version of the document to the requesting party within 2 days. This revision is intended to balance the legitimate interest in providing public versions of documents against the parties' costs of preparing and reviewing such documents.

One commentator requested that new paragraph (b) of 4 CFR 21.4 expressly permit party-specific redactions, for example, redactions that may be released only to either the protester or intervenor.

GAO response: GAO has not opposed the preparation and approval of party-specific redactions. Neither 4 CFR 21.4 nor the protective order prohibit this practice, and GAO does not see a need to address this matter in the rule.

One commentator noted that the proposed rule stated that “Proposed redacted versions of documents should not be filed through EPDS; rather, the party responsible for preparing the proposed redacted version of the document should provide the document to the other parties by email or facsimile.” The commentator suggested that there is no reason to limit the non-EPDS exchanges between the parties to email or facsimile.

GAO response: Although this instruction was not included in the text of the revised regulation, GAO agrees with the commentator that there is no reason to limit the non-EPDS exchanges between the parties to email or facsimile.

Issues Not for Consideration Protests of Orders Issued Under Task or Delivery Order Contracts

GAO proposed to add paragraph (l) of 4 CFR 21.5 to reference the provisions of 10 U.S.C. 2304c(e)(1) and 41 U.S.C. 4106(f)(1), which limit GAO's jurisdiction to hear protests in connection with the issuance or proposed issuance of a task or delivery order issued under indefinite-delivery, indefinite-quantity contracts where the order is valued at dollar thresholds established by the statutory provisions, unless it is alleged that the order increases the scope, period, or maximum value of the contract under which the order was issued.

One commentator proposed that paragraph (l) of 4 CFR 21.5 be revised to clarify that GAO has jurisdiction to hear protests concerning orders issued under the Federal Supply Schedule (FSS).

GAO response: The proposed rule states that GAO's jurisdiction to review protests of orders issued under task or delivery order contracts is limited by the provisions of 10 U.S.C. 2304c(e)(1) and 41 U.S.C. 4106(f)(1), which were enacted as part of the Federal Acquisition Streamlining Act of 1994 (FASA), as amended. As GAO has explained in numerous bid protest decisions, the statutory authority under FASA for agencies to award multiple-award task and delivery order contracts and issue orders under those contracts is separate from the statutory authority to award multiple-award FSS contracts and for agencies to issue orders under those contracts. E.g., Severn Cos., Inc., B-275717.2, Apr. 28, 1997, 97-1 CPD ¶ 181. For this reason, we have concluded that the jurisdictional limitations on GAO's review of orders issued under task or delivery order contracts pursuant to FASA does not affect our Office's jurisdiction to hear protests concerning orders issued under the FSS. Because the proposed revision addresses only the jurisdictional limits under FASA, we see no reason to add additional provisions addressing the FSS.

Protests of Awards, or Solicitations for Awards, of Agreements Other Than Procurement Contracts

GAO proposed to add paragraph (m) to 4 CFR 21.5 to clarify that GAO has the authority to review protests that an agency is improperly using a non-procurement instrument.

One commentator proposed that we clarify that our review of protests alleging that an agency is improperly using a non-procurement instrument is limited to whether an agency is improperly using the non-procurement instrument to procure goods or services.

GAO response: We agree that the proposed clarification reflects the longstanding practice by our Office to review such protests and will revise paragraph (m) of 4 CFR 21.5 in the final rule to reflect that GAO will review protests that an agency is improperly using a non-procurement instrument to procure goods or services.

Withholding of Award and Suspension of Contract Performance

GAO proposed to revise 4 CFR 21.6 to require agencies to file a notification in instances where it overrides a requirement to withhold award or suspend contract performance, and to file a copy of any issued determination and finding.

One commentator questioned why GAO proposed to require this information, in light of the statement in the same paragraph that “GAO does not administer the requirements to stay award or suspend contract performance under CICA at 31 U.S.C. 3553(c) and (d).”

GAO response: GAO's proposed rule noted that 31 U.S.C. 3554(b)(2) requires our Office to consider the basis for an agency's override in determining the remedy to recommend in the event we sustain a protest. To further clarify, 31 U.S.C. 3554(b)(2) states that if an agency issues an override based on the “best interests of the United States,” then GAO shall make a recommendation upon sustaining a protest “without regard to any cost or disruption from terminating, recompeting, or reawarding the contract.” Since this statutory provision requires GAO to consider the basis for any agency's override decision, GAO proposed to revise 4 CFR 21.6.

One commentator objected to the requirement to file the override decision, and proposed that agencies be required to advise GAO whether an override decision was based on the “best interests of the United States,” or “urgent and compelling circumstances.”

GAO response: GAO agrees that the statutory requirement for our Office to issue recommendations that take into consideration the basis for an override can also be met if the agency advises GAO of that basis, without providing the decision itself. GAO is therefore issuing this final rule to state that, when an agency issues a determination and finding to override a requirement to withhold award or suspend contract performance, the agency must file either the determination and finding itself or a statement by the official who approved the determination and finding that specifies the statutory basis for the override.

One commentator proposed revising the proposed rule to state that the decision must be filed “unless classified.”

GAO response: GAO does not believe that a revision is required here, as the proposed revision to paragraph (h) of 4 CFR 21.1 states that documents containing classified material cannot be filed through EPDS. As explained above, this proposed revision is further revised in the final rule to make clear that documents containing classified material “shall not” be filed through EPDS.

Remedies Recommendation for Reimbursement of Costs

GAO proposed revising paragraph (e) of 4 CFR 21.8 to provide that a protester must file comments on an agency's response to a request for a recommendation for reimbursement of costs within 10 days and to further provide that GAO will dismiss the request if the protester fails to file comments within 10 days.

One commentator opposed this proposed revision, arguing that GAO should consider requests even where the protester does not file comments on the agency's response. The commentator suggested that the agency's response to the request should be sufficient for GAO to rule on the request.

GAO response: A protester's comments on an agency's response to a request for a recommendation for reimbursement of protest costs are necessary to provide an adequate record for GAO to review in issuing its decision. GAO believes that where a protester fails to respond within 10 days—the same period of time permitted for filing comments on an agency report—it is appropriate to deem the protester as having abandoned its request. GAO does not believe that resolution of an abandoned request is an appropriate use of our Office's resources.

One commentator expressed concern that the requirement in paragraph (e) of 4 CFR 21.8 that agencies respond to a request for a recommendation for reimbursement of costs within 15 days will require agencies to address requests for costs that are contained in the initial protest—thus requiring the agency to address requests for costs within 15 days of a protest's initial filing, that is, before the due date for filing the agency report as required by paragraph (c) of 4 CFR 21.3.

GAO response: We do not agree with the commentator's interpretation of the requirements of paragraph (e) of 4 CFR 21.8. The plain language of paragraph (e) refers to requests filed by protesters for recommendation of reimbursement of costs after GAO dismisses a protest based on an agency's decision to take corrective action. For this reason, we see no basis to conclude that paragraph (e) requires an agency to file a response to a request that is made outside the procedures set forth in that paragraph.

One commentator proposed that we revise paragraph (e) to state that GAO will not recommend reimbursement of costs where an agency takes corrective action in response to a protest prior to providing the agency report. Another commentator proposed that we revise paragraph (e) to state that GAO will not recommend reimbursement of costs unless the agency has unreasonably delayed taking corrective action.

GAO response: Paragraph (e) of 4 CFR 21.8 provides that GAO “may recommend” reimbursement of protest costs where an agency has taken corrective action in response to a protest. The two commentators' suggestions relate to the legal standard applied by our Office in determining when a recommendation for reimbursement is appropriate. The proposed rule is meant to establish the procedure for filing requests for recommendation of reimbursement of costs and does not attempt to set forth the full legal standard that has been applied by our Office. Because it would be impractical to incorporate all circumstances encompassed within our decisions in this rule, we conclude that a revision is not necessary.

Recommendation on the Amount of Costs

One commentator requested that we incorporate a reference to the legislative history concerning the statutory provision at 31 U.S.C. 3554(c), which provides that although reimbursement for a protester's legal fees shall be capped at $150 per hour, small businesses are not subject to this limitation. The commentator noted that the conference committee's report on FASA, which imposed the $150 per hour cap, stated as follows: “The conferees expect the Comptroller General to be vigilant in reviewing attorneys' fees to ensure that they are reasonable. The cap placed on attorneys' fees for businesses other than small business constitutes a benchmark as to what constitutes a `reasonable' level for attorneys' fees for small businesses.” H. Rept. 103-712, section 1403 (Aug. 21, 1994), as reprinted in 1994 U.S.C.C.A.N. 2607, 2621-22.

GAO response: Our Office previously addressed this provision in a decision recommending the amount of attorneys' fees to be reimbursed for a small business whose protest had been sustained. See Public Communications Services, Inc.—Costs, B-400058.4, June 25, 2009, 2009 CPD ¶ 131. In that decision, GAO stated that “we recognize that the FASA conference committee reiterated our Office's responsibility, imposed in 1984 by CICA, to ensure that attorneys' fees sought for reimbursement are reasonable.” Id. at 8. Nonetheless, we concluded “we do not view the benchmark language as imposing an additional limitation (i.e., a cap) on attorneys' fees that are otherwise reasonable,” because “[s]uch an interpretation would be inconsistent with the plain statutory language of FASA which exempts small businesses from the specific cap imposed on large businesses—and we see no evidence that the Congress intended such a result.” Id. Because this matter was fully addressed in Public Communications Services, Inc.—Costs, we see no reason to add the benchmark language to the final regulation.

Express Options, Flexible Alternative Procedures, Accelerated Schedules, Summary Decisions, and Status And Other Conferences

GAO proposed to revise 4 CFR 21.10 to reflect the requirement to file documents through EPDS.

One commentator proposed that we revise the flexible schedule procedures in 4 CFR 21.10 to provide that GAO will seek the “concurrence” of the parties before using an alternate schedule. The commentator notes that the flexible schedule procedures, in particular the express option schedule, may change the parties' filing dates and reduce the amount of time for filings.

GAO response: As a matter of practice, GAO considers the views of the parties when using the flexible schedule procedures in 4 CFR 21.10. However, GAO reserves the right to use these procedures even where the parties do not concur. GAO believes that the use of flexible schedule procedures aids our Office's ability to meet our statutory obligations to provide an inexpensive and expeditious forum for the resolution of protests.

Nonstatutory Protests

Although not addressed in our proposed rule, GAO will revise 4 CFR 21.13(b) to clarify that certain provisions of 4 CFR do not apply to nonstatutory protests. The rule currently states that GAO will not issue recommendations for the payment of costs associated with nonstatutory protests, as otherwise provided for in 4 CFR 21.8(d). The revised rule clarifies that GAO will also not issue recommendations for the payment of costs when an agency takes corrective action in response to a nonstatutory protest, as otherwise provided for in 4 CFR 21.8(e). The revised rule also clarifies that 4 CFR 21.6, which pertains to the withholding of award and the suspension of contract performance pursuant to 31 U.S.C. 3553(c) and (d), does not apply to nonstatutory protests.

List of Subjects in 4 CFR Part 21

Administrative practice and procedure, Appeals, Bid protest regulations, Government contracts.

For the reasons set out in the preamble, title 4, chapter I, subchapter B, part 21 of the Code of Federal Regulations is amended as follows:

PART 21—BID PROTEST REGULATIONS 1. The authority citation for part 21 continues to read as follows: Authority:

31 U.S.C. 3551-3557.

2. In § 21.0: a. Amend paragraph (a)(2) introductory text by adding the abbreviation “(OMB)” between the words Budget and Circular; b. Redesignate paragraphs (a)(2)(A) and (B) as paragraphs (a)(2)(i) and (ii), respectively; c. Amend paragraph (b)(2) by removing “(a)(2)(B)” and adding in its place (a)(2)(ii)”; d. Amend paragraph (c) by removing the word “his” and adding in its place the words “the Architect's”; e. Redesignate paragraphs (f) and (g) as paragraphs (g) and (h), respectively, and add a new paragraph (f); f. Revise newly redesignated paragraph (g).

The addition and revision read as follows:

§ 21.0 Definitions.

(f) Electronic Protest Docketing System (EPDS) is GAO's web-based electronic docketing system. GAO's website [https://epds.gao.gov/login] includes instructions and guidance on the use of EPDS.

(g) A document is filed on a particular day when it is received in EPDS by 5:30 p.m., Eastern Time. Delivery of a protest or other document by means other than those set forth in the online EPDS instructions does not constitute a filing. Filing a document in EPDS constitutes notice to all parties of that filing.

3. Amend § 21.1 by revising paragraphs (b) and (c)(1), the third sentence of paragraph (g), and by adding a new first sentence to paragraph (h) to read as follows:
§ 21.1 Filing a protest.

(b) Protests must be filed through the EPDS.

(c) * * *

(1) Include the name, street address, email address, and telephone and facsimile numbers of the protester,

(g) * * * This information must be identified wherever it appears, and within 1 day after the filing of its protest, the protester must file a final redacted copy of the protest which omits the information.

(h) Protests and other documents containing classified information shall not be filed through the EPDS. * * *

4. Amend § 21.2 by adding a third sentence to paragraph (a)(1); by revising the second sentence of paragraph (a)(2) and the first sentence of paragraph (a)(3) to read as follows:
§ 21.2 Time for filing.

(a)(1) * * * If no closing time has been established, or if no further submissions are anticipated, any alleged solicitation improprieties must be protested within 10 days of when the alleged impropriety was known or should have been known.

(2) * * * In such cases, with respect to any protest basis which is known or should have been known either before or as a result of the debriefing, and which does not involve an alleged solicitation impropriety covered by paragraph (a)(1) of this section, the initial protest shall not be filed before the debriefing date offered to the protester, but shall be filed not later than 10 days after the date on which the debriefing is held.

(3) If a timely agency-level protest was previously filed, any subsequent protest to GAO must be filed within 10 days of actual or constructive knowledge of initial adverse agency action, provided the agency-level protest was filed in accordance with paragraphs (a)(1) and (2) of this section, unless the agency imposes a more stringent time for filing, in which case the agency's time for filing will control. * * *

5. Amend § 21.3 by revising the section heading, paragraphs (a), (c), (d), (e), the first sentence of paragraph (f), paragraph (g), the first sentence of paragraph (h), and paragraph (i) to read as follows:
§ 21.3 Notice of protest, communications among parties, submission of agency report, and time for filing of comments on report.

(a) GAO shall notify the agency within 1 day after the filing of a protest, and, unless the protest is dismissed under this part, shall promptly provide a written confirmation to the agency and an acknowledgment to the protester. The agency shall immediately give notice of the protest to the awardee if award has been made or, if no award has been made, to all bidders or offerors who appear to have a substantial prospect of receiving an award. The agency shall provide copies of the protest submissions to those parties, except where disclosure of the information is prohibited by law, with instructions to communicate further directly with GAO. All parties shall provide copies of all communications with GAO to the agency and to other participating parties either through EPDS or by email. GAO's website [https://epds.gao.gov/login] includes guidance regarding when to file through EPDS versus communicating by email or other means.

(c) The agency shall file a report on the protest within 30 days after receiving notice of the protest from GAO. The report need not contain documents which the agency has previously provided or otherwise made available to the parties in response to the protest. At least 5 days prior to the filing of the report, in cases in which the protester has filed a request for specific documents, the agency shall file a response to the request for documents. If the fifth day prior to the filing of the report falls on a weekend or Federal holiday, the response shall be filed by the last business day that precedes the weekend or holiday. The agency's response shall, at a minimum, identify whether the requested documents exist, which of the requested documents or portions thereof the agency intends to produce, which of the requested documents or portions thereof the agency intends to withhold, and the basis for not producing any of the requested documents or portions thereof. Any objection to the scope of the agency's proposed disclosure or nondisclosure of documents must be filed within 2 days of receipt of this response.

(d) The report shall include the contracting officer's statement of the relevant facts (including a best estimate of the contract value), a memorandum of law, and a list and a copy of all relevant documents, or portions of documents, not previously produced, including, as appropriate: the bid or proposal submitted by the protester; the bid or proposal of the firm which is being considered for award, or whose bid or proposal is being protested; all evaluation documents; the solicitation, including the specifications; the abstract of bids or offers; and any other relevant documents. In appropriate cases, a party may file a request that another party produce relevant documents, or portions of documents, that are not in the agency's possession.

(e) Where a protester or intervenor does not have counsel admitted to a protective order and documents are withheld from the protester or intervenor on that basis, the agency shall file redacted documents that adequately inform the protester and/or intervenor of the basis of the agency's arguments in response to the protest. GAO's website [https://epds.gao.gov/login] provides guidance regarding filing documents where no protective order is issued or where a protester or intervenor does not have counsel admitted to a protective order.

(f) The agency may file a request for an extension of time for the submission of the response to be filed by the agency pursuant to § 21.3(c) or for the submission of the agency report. * * *

(g) The protester may file a request for additional documents after receipt of the agency report when their existence or relevance first becomes evident. Except when authorized by GAO, any request for additional documents must be filed not later than 2 days after their existence or relevance is known or should have been known, whichever is earlier. The agency shall file the requested documents, or portions of documents, within 2 days or explain why it is not required to produce the documents.

(h) Upon a request filed by a party, GAO will decide whether the agency must file any withheld documents, or portions of documents, and whether this should be done under a protective order. * * *

(i)(1) Comments on the agency report shall be filed within 10 days after the agency has filed the report, except where GAO has granted an extension of time, or where GAO has established a shorter period for filing of comments. Extensions will be granted on a case-by-case basis.

(2) The protest shall be dismissed unless the protester files comments within the period of time established in § 21.3(i)(1).

(3) GAO will dismiss any protest allegation or argument where the agency's report responds to the allegation or argument, but the protester's comments fail to address that response.

6. In § 21.4: a. Amend paragraph (a) by removing the word “under” in the fourth sentence and adding in its place the word “to”; and adding a fifth sentence; b. Redesignate paragraphs (b), (c), and (d) as paragraphs (c), (d), and (e), respectively, and add a new paragraph (b); c. Revise the first sentence of newly redesignated paragraph (c); and revise the first and third sentences of newly designated paragraph (d).

The addition and revisions read as follows:

§ 21.4 Protective orders.

(a) * * * GAO generally does not issue a protective order where an intervenor retains counsel, but the protester does not.

(b) Any agency or party filing a document that the agency or party believes to contain protected material shall, if requested by another party, provide to the other parties (unless they are not admitted to the protective order) an initial proposed redacted version of the document within 2 days of the request. Where appropriate, the exhibits to the agency report or other documents may be proposed for redaction in their entirety. The party that authored the document shall file the final redacted version of the document that has been agreed to by all of the parties. Only the final agreed-to version of a redacted document must be filed. If the parties are unable to reach an agreement regarding redactions, the objecting party may submit the matter to GAO for resolution. Until GAO resolves the matter, the disputed information must be treated as protected.

(c) If no protective order has been issued, or a protester or intervenor does not have counsel admitted to a protective order, the agency may withhold from the parties those portions of its report that would ordinarily be subject to a protective order, provided that the requirements of § 21.3(e) are met. * * *

(d) After a protective order has been issued, counsel or consultants retained by counsel appearing on behalf of a party may apply for admission under the order by filing an application. * * * Objections to an applicant's admission shall be filed within 2 days after the application is filed, although GAO may consider objections filed after that time.

7. In § 21.5: a. Amend paragraph (a) by removing “601-613” and adding in its place “7101-7109”; b. Revise paragraph (b) subject heading, paragraph (b)(1), the first sentence of paragraph (b)(2), and paragraph (b)(3); c. Amend paragraph (d) by removing “423” and adding in its place “2101-2107”; d. Amend paragraph (e) by removing the words “in GAO” and adding in their place the words “with GAO”; e. Amend paragraph (f) by removing the word “which” in two places and adding in its place the word “that”; f. Amend paragraph (g) by removing “472” and adding in its place “102”; g. Revise paragraph (h); and h. Add paragraphs (l) and (m).

The revisions and additions read as follows:

§ 21.5 Protest issues not for consideration.

(b) Small Business Administration (SBA) issues. (1) Small business size standards and North American Industry Classification System (NAICS) standards. Challenges of established size standards or the size status of particular firms, and challenges of the selected NAICS code may be reviewed solely by the SBA. 15 U.S.C. 637(b)(6).

(2) Small Business Certificate of Competency Program. Referrals made to the SBA pursuant to sec. 8(b)(7) of the Small Business Act, or the issuance of, or refusal to issue, a certificate of competency under that section will generally not be reviewed by GAO. * * *

(3) Procurements under sec. 8(a) of the Small Business Act. Under that section, since contracts are entered into with the SBA at the contracting officer's discretion and on such terms as are agreed upon by the procuring agency and the SBA, the decision to place or not to place a procurement under the 8(a) program is not subject to review absent a showing of possible bad faith on the part of government officials or that regulations may have been violated. 15 U.S.C. 637(a).

(h) Subcontract protests. GAO will not consider a protest of the award or proposed award of a subcontract except where the agency awarding the prime contract has filed a request that subcontract protests be decided pursuant to § 21.13.

(l) Protests of orders issued under task or delivery order contracts. As established in 10 U.S.C. 2304c(e) and 41 U.S.C. 4106(f), GAO does not have jurisdiction to review protests in connection with the issuance or proposed issuance of a task or delivery order except for the circumstances set forth in those statutory provisions.

(m) Protests of awards, or solicitations for awards, of agreements other than procurement contracts. GAO generally does not review protests of awards, or solicitations for awards, of agreements other than procurement contracts, with the exception of awards or agreements as described in § 21.13; GAO does, however, review protests alleging that an agency is improperly using a non-procurement instrument to procure goods or services.

8. Revise § 21.6 to read as follows:
§ 21.6 Withholding of award and suspension of contract performance.

When a protest is filed, the agency may be required to withhold award and to suspend contract performance. The requirements for the withholding of award and the suspension of contract performance are set forth in 31 U.S.C. 3553(c) and (d); GAO does not administer the requirements to withhold award or suspend contract performance. An agency shall file a notification in instances where it overrides a requirement to withhold award or suspend contract performance, and it shall file either a copy of any issued determination and finding, or a statement by the individual who approved the determination and finding that explains the statutory basis for the override.

9. Amend § 21.7 by revising the first sentence of paragraph (a) and revising paragraph (e) to read as follows:
§ 21.7 Hearings.

(a) Upon a request filed by a party or on its own initiative, GAO may conduct a hearing in connection with a protest. * * *

(e) GAO does not provide for hearing transcripts. If the parties wish to have a hearing transcribed, they may do so at their own expense, so long as a copy of the transcript is provided to GAO at the parties' expense.

10. Amend § 21.8 by revising paragraph (e), adding a paragraph (f) subject heading, revising paragraphs (f)(2) and (3), and adding paragraphs (f)(4) through (6) to read as follows:
§ 21.8 Remedies.

(e) Recommendation for reimbursement of costs. If the agency decides to take corrective action in response to a protest, GAO may recommend that the agency pay the protester the reasonable costs of filing and pursuing the protest, including attorneys' fees and consultant and expert witness fees. The protester shall file any request that GAO recommend that costs be paid not later than 15 days after the date on which the protester learned (or should have learned, if that is earlier) that GAO had closed the protest based on the agency's decision to take corrective action. The agency shall file a response within 15 days after the request is filed. The protester shall file comments on the agency response within 10 days of receipt of the response. GAO shall dismiss the request unless the protester files comments within the 10-day period, except where GAO has granted an extension or established a shorter period.

(f) Recommendation on the amount of costs.

(2) The agency shall issue a decision on the claim for costs as soon as practicable after the claim is filed.

(3) If the protester and the agency cannot reach agreement regarding the amount of costs within a reasonable time, the protester may file a request that GAO recommend the amount of costs to be paid, but such request shall be filed within 10 days of when the agency advises the protester that the agency will not participate in further discussions regarding the amount of costs.

(4) Within 15 days after receipt of the request that GAO recommend the amount of costs to be paid, the agency shall file a response. The protester shall file comments on the agency response within 10 days of receipt of the response. GAO shall dismiss the request unless the protester files comments within the 10-day period, except where GAO has granted an extension or established a shorter period.

(5) In accordance with 31 U.S.C. 3554(c), GAO may recommend the amount of costs the agency should pay. In such cases, GAO may also recommend that the agency pay the protester the costs of pursuing the claim for costs before GAO.

(6) Within 60 days after GAO recommends the amount of costs the agency should pay the protester, the agency shall file a notification of the action the agency took in response to the recommendation.

11. Amend § 21.9 by revising paragraph (a) to read as follows:
§ 21.9 Time for decision by GAO.

(a) GAO shall issue a decision on a protest within 100 days after it is filed. GAO will attempt to resolve a request for recommendation for reimbursement of protest costs under § 21.8(e), a request for recommendation on the amount of protest costs under § 21.8(f), or a request for reconsideration under § 21.14 within 100 days after the request is filed.

12. Amend § 21.10 by revising paragraph (a), the first sentence of paragraph (c), and paragraphs (d)(1) and (2) and (e) to read as follows:
§ 21.10 Express options, flexible alternative procedures, accelerated schedules, summary decisions, and status and other conferences.

(a) Upon a request filed by a party or on its own initiative, GAO may decide a protest using an express option.

(c) Requests for the express option shall be filed not later than 5 days after the protest or supplemental/amended protest is filed. * * *

(d) * * *

(1) The agency shall file a complete report within 20 days after it receives notice from GAO that the express option will be used.

(2) Comments on the agency report shall be filed within 5 days after receipt of the report.

(e) GAO, on its own initiative or upon a request filed by the parties, may use flexible alternative procedures to promptly and fairly resolve a protest, including alternative dispute resolution, establishing an accelerated schedule, and/or issuing a summary decision.

13. Amend § 21.11 by revising paragraph (a) to read as follows:
§ 21.11 Effect of judicial proceedings.

(a) A protester must immediately advise GAO of any court proceeding which involves the subject matter of a pending protest and must file copies of all relevant court documents.

14. Amend § 21.12 by revising paragraph (b) to read as follows:
§ 21.12 Distribution of decisions.

(b) Decisions will be distributed to the parties through the EPDS.

15. Amend § 21.13 by revising paragraph (b) to read as follows:
§ 21.13 Nonstatutory protests.

(b) The provisions of this part shall apply to nonstatutory protests except for:

(1) Section 21.8(d) and (e) pertaining to recommendations for the payment of costs; and

(2) Section 21.6 pertaining to the withholding of award and the suspension of contract performance pursuant to 31 U.S.C. 3553(c) and (d).

16. Amend § 21.14 by revising paragraph (b) and the second sentence of paragraph (c) to read as follows:
§ 21.14 Request for reconsideration.

(b) A request for reconsideration of a bid protest decision shall be filed not later than 10 days after the basis for reconsideration is known or should have been known, whichever is earlier.

(c) * * * To obtain reconsideration, the requesting party must show that GAO's prior decision contains errors of either fact or law, or must present information not previously considered that warrants reversal or modification of the decision; GAO will not consider a request for reconsideration based on repetition of arguments previously raised.

Thomas H. Armstrong, General Counsel, United States Government Accountability Office.
[FR Doc. 2018-06413 Filed 3-30-18; 8:45 am] BILLING CODE 1610-02-P
DEPARTMENT OF HOMELAND SECURITY 6 CFR Part 27 8 CFR Parts 270, 274a, and 280 19 CFR Part 4 Coast Guard 33 CFR Part 27 Transportation Security Administration 49 CFR Part 1503 RIN 1601-AA80 Civil Monetary Penalty Adjustments for Inflation AGENCY:

Department of Homeland Security.

ACTION:

Final rule.

SUMMARY:

In this final rule, the Department of Homeland Security's (DHS) is making the 2018 annual inflation adjustment to its civil monetary penalties. The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (2015 Act) was signed into law on November 2, 2015. Pursuant to the 2015 Act, all agencies must adjust civil monetary penalties annually and publish the adjustment in the Federal Register. Accordingly, this final rule adjusts DHS's civil monetary penalties for 2018 pursuant to the 2015 Act and OMB guidance. The new penalties will be effective for penalties assessed after April 2, 2018 whose associated violations occurred after November 2, 2015.

DATES:

This rule is effective on April 2, 2018.

FOR FURTHER INFORMATION CONTACT:

Megan Westmoreland, Attorney-Advisor, Office of the General Counsel, U.S. Department of Homeland Security. Phone: 202-447-4384.

SUPPLEMENTARY INFORMATION:

Table of Contents I. Statutory and Regulatory Background II. Overview of Final Rule III. Adjustments by Component A. National Protection and Programs Directorate B. U.S. Customs and Border Protection C. U.S. Immigration and Customs Enforcement D. U.S. Coast Guard E. Transportation Security Administration IV. Administrative Procedure Act V. Regulatory Analyses A. Executive Orders 12866 and 13563 B. Regulatory Flexibility Act C. Unfunded Mandates Reform Act D. Paperwork Reduction Act I. Statutory and Regulatory Background

On November 2, 2015, the President signed into law the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Pub. L. 114-74 section 701 (Nov. 2, 2105)) (2015 Act).1 The 2015 Act amended the Federal Civil Penalties Inflation Adjustment Act of 1990 (28 U.S.C. 2461 note) to improve the effectiveness of civil monetary penalties and to maintain their deterrent effect. The 2015 Act required agencies to: (1) Adjust the level of civil monetary penalties with an initial “catch-up” adjustment through issuance of an Interim Final Rule (IFR) and (2) make subsequent annual adjustments for inflation. Through the “catch-up” adjustment, agencies were required to adjust the maximum amounts of civil monetary penalties to more accurately reflect inflation rates.

1 The 2015 Act was enacted as part of the Bipartisan Budget Act of 2015, Public Law 114-74 (Nov. 2, 2015).

For the subsequent annual adjustments, the 2015 Act requires agencies to increase the penalty amounts by a cost-of-living adjustment. The 2015 Act directs OMB to provide guidance to agencies each year to assist agencies in making the annual adjustments. The 2015 Act requires agencies to make the annual adjustments no later than January 15 of each year and to publish the adjustments in the Federal Register.

Pursuant to the 2015 Act, DHS undertook a review of the civil penalties that DHS and its components administer.2 On July 1, 2016, DHS published an IFR adjusting the maximum civil monetary penalties with an initial “catch-up” adjustment, as required by the 2015 Act. See 81 FR 42987. DHS calculated the adjusted penalties based upon nondiscretionary provisions in the 2015 Act and upon guidance that OMB issued to agencies on February 24, 2016.3 The adjusted penalties were effective for civil penalties assessed after August 1, 2016 (the effective date of the IFR) whose associated violations occurred after November 2, 2015 (the date of enactment of the 2015 Act). On January 27, 2017, DHS published a final rule finalizing the IFR and making the annual adjustment for 2017. See 82 FR 8572.

2 The 2015 Act applies to all agency civil penalties except for any penalty (including any addition to tax and additional amount) under the Internal Revenue Code of 1986 (26 U.S.C. 1 et seq.) and the Tariff Act of 1930 (19 U.S.C. 1202 et seq.). See sec. 4(a)(1) of the 2015 Act. In the case of DHS, several civil penalties that are assessed by U.S. Customs and Border Protection (CBP) and the U.S. Coast Guard fall under the Tariff Act of 1930, and thus DHS did not adjust those civil penalties in this rulemaking.

3 OMB, Implementation of the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, Table A, 24 February 2016. https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/memoranda/2016/m-16-06.pdf (last accessed Dec. 5, 2017).

II. Overview of the Final Rule

This final rule makes the 2018 annual inflation adjustments to civil monetary penalties pursuant to the 2015 Act and pursuant to guidance OMB issued to agencies on December 15, 2017.4 The penalty amounts in this final rule will be effective for penalties assessed after April 2, 2018 where the associated violation occurred after November 2, 2015. Consistent with OMB guidance, the 2015 Act does not change previously assessed penalties that the agency is actively collecting or has collected.

4 OMB, Implementation of the 2018 annual adjustment pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, December 15, 2017. https://www.whitehouse.gov/wp-content/uploads/2017/11/M-18-03.pdf (last accessed Dec. 15, 2017).

The adjusted penalty amounts will apply to penalties assessed after the effective date of this final rule. We discuss civil penalties by DHS component in Section III below. For each component identified in Section III, below, we briefly describe the relevant civil penalty (or penalties), and we provide a table showing the increase in the penalties for 2018. In the table for each component, we show (1) the penalty name, (2) the penalty statutory and/or regulatory citation, (3) the penalty amount as adjusted in the 2017 final rule, (4) the cost-of-living adjustment multiplier for 2018 that OMB provided in its December 15, 2017 guidance, and (5) the new 2018 adjusted penalty. The 2015 Act instructs agencies to round penalties to the nearest $1. For a more complete discussion of the method used for calculating the initial “catch-up” inflation adjustments and a component-by-component breakdown to the nature of the civil penalties and relevant legal authorities, please see the IFR preamble at 81 FR 42987-43000.

III. Adjustments by Component

In the following sections, we briefly describe the civil penalties that DHS and its components assess. We include tables at the end of each section, which list the individual adjustments for each penalty.

A. National Protection and Programs Directorate

The National Protection and Programs Directorate (NPPD) administers only one civil penalty that the 2015 Act affects. That penalty assesses fines for violations of the Chemical Facility Anti-Terrorism Standards (CFATS). CFATS is a program that regulates the security of chemical facilities that, in the discretion of the Secretary, present high levels of security risk. DHS established the CFATS program in 2007 pursuant to section 550 of the Department of Homeland Security Appropriations Act of 2007 (Pub. L. 109-295).5 The CFATS regulation is located in part 27 of title 6 of the Code of Federal Regulations (CFR). Below is a table showing the 2018 adjustment for the CFATS penalty that NPPD administers.

5 Section 550 has since been superseded by the Protecting and Securing Chemical Facilities from Terrorist Attacks Act of 2014 (Pub. L. 113-254). The new legislation codified the statutory authority for the CFATS program within Title XXI of the Homeland Security Act of 2002, as amended. See 6 U.S.C. 621 et seq.

Table 1—CFATS Civil Penalty Adjustment Penalty name Citation Penalty amount as adjusted in the 2017 FR Multiplier * New penalty as adjusted by this final rule Penalty for non-compliance with CFATS regulations 6 U.S.C. 624(b)(1); 6 CFR 27.300(b)(3) $33,333 per day 1.02041 $34,013 * OMB, Implementation of the 2018 annual adjustment pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, December 15, 2017. https://obamawhitehouse.archives.gov/sites/default/files/omb/memoranda/2017/m-17-11_0.pdf. B. U.S. Customs and Border Protection

U.S. Customs and Border Protection (CBP) assesses civil monetary penalties under various titles of the United States Code and the CFR. These include penalties for certain violations of title 8 of the CFR regarding the Immigration and Nationality Act of 1952 (Pub. L. 82-414, as amended) (INA). The INA contains provisions that impose penalties on persons, including carriers and aliens, who violate specified provisions of the INA. The relevant penalty provisions are located in numerous sections of the INA, however CBP has enumerated these penalties in regulation in one location—in 8 CFR 280.53. For a complete list of the INA sections for which penalties are assessed, in addition to a brief description of each violation, see the IFR preamble at 81 FR 42989-42990.

On December 8, 2017, CBP adjusted three non-INA penalties inadvertently left out of the IFR and 2017 final rule. See 82 FR 57821. The three penalties concern the following violations: Transporting passengers between coastwise points in the United States by a non-coastwise qualified vessel; towing a vessel between coastwise points in the United States by a non-coastwise qualified vessel; and dealing in or using an empty stamped imported liquor container after it has already been used once. This final rule incorporates those three penalties alongside the other CBP penalties and adjusts them according to the 2018 multiplier.

Below is a table showing the 2018 adjustment for the penalties that CBP administers.

Table 2—U.S. Customs and Border Protection Civil Penalties Adjustments Penalty name Citation Penalty amount as adjusted in the 2017 FR Multiplier * New penalty as
  • adjusted by this
  • final rule
  • Penalties for non-compliance with arrival and departure manifest requirements for passengers, crewmembers, or occupants transported on commercial vessels or aircraft arriving to or departing from the United States 8 U.S.C. 1221(g) 8 CFR 280.53(b)(1) (INA section 231(g)) $1,333 1.02041 $1,360. Penalties for non-compliance with landing requirements at designated ports of entry for aircraft transporting aliens 8 U.S.C. 1224 8 CFR 280.53(b)(2) (INA section 234) $3,621 1.02041 $3,695. Penalties for failure to depart voluntarily 8 U.S.C. 1229c(d) 8 CFR 280.53(b)(3) (INA section 240B(d)) $1,527-$7,635 1.02041 $1,558-$7,791. Penalties for violations of removal orders relating to aliens transported on vessels or aircraft under section 241(d) of the INA, or for costs associated with removal under section 241(e) of the INA 8 U.S.C. 1253(c)(1)(A) 8 CFR 280.53(b)(4) (INA section 243(c)(1)(A)) $3,054 1.02041 $3,116. Penalties for failure to remove alien stowaways under section 241(d)(2) of the INA 8 U.S.C. 1253(c)(1)(B) 8 CFR 280.53(b)(5) (INA section 243(c)(1)(B)) $7,635 1.02041 $7,791. Penalties for failure to report an illegal landing or desertion of alien crewmen, and for each alien not reported on arrival or departure manifest or lists required in accordance with section 251 of the INA 8 U.S.C. 1281(d) 8 CFR 280.53(b)(6) (INA section 251(d)) $362 for each alien 1.02041 $369 for each alien. Penalties for use of alien crewmen for longshore work in violation of section 251(d) of the INA 8 U.S.C. 1281(d) 8 CFR 280.53(b)(6) (INA section 251(d)) $9,054 1.02041 $9,239. Penalties for failure to control, detain, or remove alien crewmen 8 U.S.C. 1284(a) 8 CFR 280.53(b)(7) (INA section 254(a)) $906-$5,432 1.02041 $924-$5,543. Penalties for employment on passenger vessels of aliens afflicted with certain disabilities 8 U.S.C. 1285 8 CFR 280.53(b)(8) (INA section 255) $1,811 1.02041 $1,848. Penalties for discharge of alien crewmen 8 U.S.C. 1286 8 CFR 280.53(b)(9) (INA section 256) $2,716-$5,432 1.02041 $2,771-$5,543. Penalties for bringing into the United States alien crewmen with intent to evade immigration laws 8 U.S.C. 1287 8 CFR 280.53(b)(10) (INA section 257) $18,107 1.02041 $18,477. Penalties for failure to prevent the unauthorized landing of aliens 8 U.S.C. 1321(a) 8 CFR 280.53(b)(11) (INA section 271(a)) $5,432 1.02041 $5,543. Penalties for bringing to the United States aliens subject to denial of admission on a health-related ground 8 U.S.C. 1322(a) 8 CFR 280.53(b)(12) (INA section 272(a)) $5,432 1.02041 $5,543. Penalties for bringing to the United States aliens without required documentation 8 U.S.C. 1323(b) 8 CFR 280.53(b)(13) (INA section 273(b)) $5,432 1.02041 $5,543. Penalties for failure to depart 8 U.S.C. 1324d 8 CFR 280.53(b)(14) (INA section 274D) $763 1.02041 $779. Penalties for improper entry 8 U.S.C. 1325(b) 8 CFR 280.53(b)(15) (INA section 275(b)) $76-$382 1.02041 $78-$390. Penalty for dealing in or using empty stamped imported liquor containers 19 U.S.C. 469 $508 ** 1.02041 $518. Penalty for transporting passengers between coastwise points in the United States by a non-coastwise qualified vessel 46 U.S.C. 55103(b) 19 CFR 4.80(b)(2) $762 ** 1.02041 $778. Penalty for towing a vessel between coastwise points in the United States by a non-coastwise qualified vessel 46 U.S.C. 55111(c) 19 CFR 4.92 $889-$2795, plus $152 per ton ** 1.02041 $907-$2852, plus $155 per ton. * OMB, Implementation of the 2018 annual adjustment pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, December 15, 2017. https://www.whitehouse.gov/wp-content/uploads/2017/11/M-18-03.pdf. ** Adjustments made in Dec 8, 2017 final rule, 82 FR 57821.
    C. U.S. Immigration and Customs Enforcement

    U.S. Immigration and Customs Enforcement (ICE) assesses civil monetary penalties for certain employment-related violations arising from the INA. ICE's civil penalties are located in title 8 of the CFR.

    There are three different sections in the INA that impose civil monetary penalties for violations of the laws that relate to employment actions: Sections 274A, 274B, and 274C. ICE has primary enforcement responsibilities for two of these civil penalty provisions (sections 274A and 274C), and the Department of Justice (DOJ) has enforcement responsibilities for one of these civil penalty provisions (section 274B). The INA, in sections 274A and 274C, provides for imposition of civil penalties for various specified unlawful acts pertaining to the employment eligibility verification process (Form I-9, Employment Eligibility Verification) and the employment of unauthorized aliens.

    Because both DHS and DOJ implement the three employment-related penalty sections in the INA, both Departments' implementing regulations reflect the civil penalty amounts. For a complete description of the civil money penalties assessed and a discussion of DHS's and DOJ's efforts to update the penalties in years past, see the IFR preamble at 81 FR 42991. Below is a table showing the 2018 adjustment for the penalties that ICE administers.6

    6 Table 3 also includes two civil penalties that were previously listed as penalties administered by CBP, but that are now indicated in this final rule as penalties that ICE administers. These are penalties for failure to depart voluntarily, INA section 240B(d), and failure to depart after a final order of removal, INA section 274D. Both CBP and ICE may administer these penalties, but as ICE is the DHS component primarily responsible for assessing and collecting them, they are now also listed among the penalties ICE administers.

    Table 3—U.S. Immigration and Customs Enforcement Civil Penalties Adjustments Penalty name Citation Penalty amount as adjusted in the 2017 FR Multiplier * New penalty as adjusted by this final rule Civil penalties for failure to depart voluntarily, Immigration and Naturalization Act section 240B(d) 8 U.S.C. 1229c(d) 8 CFR 280.53(b)(3) $1,527-$7,635 1.02041 $1,558-$7,791 Civil penalties for violation of Immigration and Naturalization Act (INA) sections 274C(a)(1)-(a)(4), penalty for first offense 8 CFR 270.3(b)(1)(ii)(A) $452-$3,621 1.02041 $461-$3,695 Civil penalties for violation of Immigration and Naturalization Act (INA) sections 274C(a)(5)-(a)(6), penalty for first offense 8 CFR 270.3(b)(1)(ii)(B) $382-$3,054 1.02041 $390-$3,116 Civil penalties for violation of Immigration and Naturalization Act (INA) sections 274C(a)(1)-(a)(4), penalty for subsequent offenses 8 CFR 270.3(b)(1)(ii)(C) $3,621-$9,054 1.02041 $3,695-$9,239 Civil penalties for violation of Immigration and Naturalization Act (INA) sections 274C(a)(5)-(a)(6), penalty for subsequent offenses 8 CFR 270.3(b)(1)(ii)(D) $3,054-$7,635 1.02041 $3,116-$7,791 Violation/prohibition of indemnity bonds 8 CFR 274a.8(b) $2,191 1.02041 $2,236 Civil penalties for knowingly hiring, recruiting, referral, or retention of unauthorized aliens—Penalty for first offense (per unauthorized alien) 8 CFR 274a.10(b)(1)(ii)(A) $548-$4,384 1.02041 $559-$4,473 Penalty for second offense (per unauthorized alien) 8 CFR 274a.10(b)(1)(ii)(B) $4,384-$10,957 1.02041 $4,473-$11,181 Penalty for third or subsequent offense (per unauthorized alien) 8 CFR 274a.10(b)(1)(ii)(C) $6,575-$21,916 1.02041 $6,709-$22,363 Civil penalties for I-9 paperwork violations 8 CFR 274a.10(b)(2) $220-$2,191 1.02041 $224-$2,236 Civil penalties for failure to depart, Immigration and Naturalization Act (INA) section 274D 8 U.S.C. 1324d 8 CFR 280.53(b)(14) $763 1.02041 $779 * OMB, Implementation of the 2018 annual adjustment pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, December 15, 2017. https://www.whitehouse.gov/wp-content/uploads/2017/11/M-18-03.pdf. D. U.S. Coast Guard

    The Coast Guard is authorized to assess close to 150 penalties involving maritime safety and security and environmental stewardship that are critical to the continued success of Coast Guard missions. Various statutes in titles 14, 16, 19, 33, 42, 46, and 49 of the United States Code authorize these penalties. Titles 33 and 46 authorize the vast majority of these penalties as these statutes deal with navigation, navigable waters, and shipping. Beyond titles 33 and 46, the Coast Guard is also authorized to collect civil monetary penalties related to the organization and management of the Coast Guard, aquatic species conservation, obstruction of revenue, and hazardous substances and materials. For a complete discussion of the civil monetary penalties assessed by the Coast Guard, see the IFR preamble at 81 FR 42992.

    The Coast Guard has identified the penalties it administers, adjusted those penalties for inflation, and is listing those new penalties in a table located in the CFR—specifically, Table 1 in 33 CFR 27.3. Table 1 in 33 CFR 27.3 identifies the statutes that provide the Coast Guard with civil monetary penalty authority and sets out the inflation-adjusted maximum penalty that the Coast Guard may impose pursuant to each statutory provision. Table 1 in 33 CFR 27.3 provides the current maximum penalty for violations that occurred after November 2, 2015. The applicable civil penalty amounts for violations occurring on or before November 2, 2015 are set forth in previously published regulations amending 33 CFR part 27. To find the applicable penalty amount for a violation that occurred on or before November 2, 2015, look to the prior versions of the CFR that pertain to the date on which the violation occurred. Table 4 below shows the 2018 adjustment for the penalties that the Coast Guard administers.

    Table 4—U.S. Coast Guard Civil Penalties Adjustments Penalty name Citation Penalty amount as
  • adjusted in the 2017 FR
  • Multiplier * New penalty as adjusted by this final rule
    Saving Life and Property 14 U.S.C. 88(c) $10,181 1.02041 $10,389 Saving Life and Property; Intentional Interference with Broadcast 14 U.S.C. 88(e) 1,045 1.02041 1,066 Confidentiality of Medical Quality Assurance Records (first offense) 14 U.S.C. 645(i); 33 CFR 27.3 5,114 1.02041 5,218 Confidentiality of Medical Quality Assurance Records (subsequent offenses) 14 U.S.C. 645(i); 33 CFR 27.3 34,095 1.02041 34,791 Aquatic Nuisance Species in Waters of the United States 16 U.S.C. 4711(g)(1); 33 CFR 27.3 38,175 1.02041 38,954 Obstruction of Revenue Officers by Masters of Vessels 19 U.S.C. 70; 33 CFR 27.3 7,623 1.02041 7,779 Obstruction of Revenue Officers by Masters of Vessels—Minimum Penalty 19 U.S.C. 70; 33 CFR 27.3 1,779 1.02041 1,815 Failure to Stop Vessel When Directed; Master, Owner, Operator or Person in Charge 19 U.S.C. 1581(d) ** 5,000 N/A ** 5,000 Failure to Stop Vessel When Directed; Master, Owner, Operator or Person in Charge—Minimum Penalty 19 U.S.C. 1581(d) ** 1,000 N/A ** 1,000 Anchorage Ground/Harbor Regulations General 33 U.S.C. 471; 33 CFR 27.3 11,053 1.02041 11,279 Anchorage Ground/Harbor Regulations St. Mary's river 33 U.S.C. 474; 33 CFR 27.3 762 1.02041 778 Bridges/Failure to Comply with Regulations 33 U.S.C. 495(b); 33 CFR 27.3 27,904 1.02041 28,474 Bridges/Drawbridges 33 U.S.C. 499(c); 33 CFR 27.3 27,904 1.02041 28,474 Bridges/Failure to Alter Bridge Obstructing Navigation 33 U.S.C. 502(c); 33 CFR 27.3 27,904 1.02041 28,474 Bridges/Maintenance and Operation 33 U.S.C. 533(b); 33 CFR 27.3 27,904 1.02041 28,474 Bridge to Bridge Communication; Master, Person in Charge or Pilot 33 U.S.C. 1208(a); 33 CFR 27.3 2,033 1.02041 2,074 Bridge to Bridge Communication; Vessel 33 U.S.C. 1208(b); 33 CFR 27.3 2,033 1.02041 2,074 PWSA Regulations 33 U.S.C. 1232(a); 33 CFR 27.3 90,063 1.02041 91,901 Vessel Navigation: Regattas or Marine Parades; Unlicensed Person in Charge 33 U.S.C. 1236(b); 33 CFR 27.3 9,054 1.02041 9,239 Vessel Navigation: Regattas or Marine Parades; Owner Onboard Vessel 33 U.S.C. 1236(c); 33 CFR 27.3 9,054 1.02041 9,239 Vessel Navigation: Regattas or Marine Parades; Other Persons 33 U.S.C. 1236(d); 33 CFR 27.3 4,527 1.02041 4,619 Oil/Hazardous Substances: Discharges (Class I per violation) 33 U.S.C. 1321(b)(6)(B)(i); 33 CFR 27.3 18,107 1.02041 18,477 Oil/Hazardous Substances: Discharges (Class I total under paragraph) 33 U.S.C. 1321(b)(6)(B)(i); 33 CFR 27.3 45,268 1.02041 46,192 Oil/Hazardous Substances: Discharges (Class II per day of violation) 33 U.S.C. 1321(b)(6)(B)(ii); 33 CFR 27.3 18,107 1.02041 18,477 Oil/Hazardous Substances: Discharges (Class II total under paragraph) 33 U.S.C. 1321(b)(6)(B)(ii); 33 CFR 27.3 226,338 1.02041 230,958 Oil/Hazardous Substances: Discharges (per day of violation) Judicial Assessment 33 U.S.C. 1321(b)(7)(A); 33 CFR 27.3 45,268 1.02041 46,192 Oil/Hazardous Substances: Discharges (per barrel of oil or unit discharged) Judicial Assessment 33 U.S.C. 1321(b)(7)(A); 33 CFR 27.3 1,811 1.02041 1,848 Oil/Hazardous Substances: Failure to Carry Out Removal/Comply With Order (Judicial Assessment) 33 U.S.C. 1321(b)(7)(B); 33 CFR 27.3 45,268 1.02041 46,192 Oil/Hazardous Substances: Failure to Comply with Regulation Issued Under 1321(j) (Judicial Assessment) 33 U.S.C. 1321(b)(7)(C); 33 CFR 27.3 45,268 1.02041 46,192 Oil/Hazardous Substances: Discharges, Gross Negligence (per barrel of oil or unit discharged) Judicial Assessment 33 U.S.C. 1321(b)(7)(D); 33 CFR 27.3 5,432 1.02041 5,543 Oil/Hazardous Substances: Discharges, Gross Negligence—Minimum Penalty (Judicial Assessment) 33 U.S.C. 1321(b)(7)(D); 33 CFR 27.3 181,071 1.02041 184,767 Marine Sanitation Devices; Operating 33 U.S.C. 1322(j); 33 CFR 27.3 7,623 1.02041 7,779 Marine Sanitation Devices; Sale or Manufacture 33 U.S.C. 1322(j); 33 CFR 27.3 20,327 1.02041 20,742 International Navigation Rules; Operator 33 U.S.C. 1608(a); 33 CFR 27.3 14,252 1.02041 14,543 International Navigation Rules; Vessel 33 U.S.C. 1608(b); 33 CFR 27.3 14,252 1.02041 14,543 Pollution from Ships; General 33 U.S.C. 1908(b)(1); 33 CFR 27.3 71,264 1.02041 72,718 Pollution from Ships; False Statement 33 U.S.C. 1908(b)(1); 33 CFR 27.3 14,252 1.02041 14,543 Inland Navigation Rules; Operator 33 U.S.C. 2072(a); 33 CFR 27.3 14,252 1.02041 14,543 Inland Navigation Rules; Vessel 33 U.S.C. 2072(b); 33 CFR 27.3 14,252 1.02041 14,543 Shore Protection; General 33 U.S.C. 2609(a); 33 CFR 27.3 50,276 1.02041 51,302 Shore Protection; Operating Without Permit 33 U.S.C. 2609(b); 33 CFR 27.3 20,111 1.02041 20,521 Oil Pollution Liability and Compensation 33 U.S.C. 2716a(a); 33 CFR 27.3 45,268 1.02041 46,192 Clean Hulls 33 U.S.C. 3852(a)(1)(A); 33 CFR 27.3 41,446 1.02041 42,292 Clean Hulls-related to false statements 33 U.S.C. 3852(a)(1)(A); 33 CFR 27.3 55,263 1.02041 56,391 Clean Hulls-Recreational Vessel 33 U.S.C. 3852(c); 33 CFR 27.3 5,526 1.02041 5,639 Hazardous Substances, Releases, Liability, Compensation (Class I) 42 U.S.C. 9609(a); 33 CFR 27.3 54,789 1.02041 55,907 Hazardous Substances, Releases, Liability, Compensation (Class II) 42 U.S.C. 9609(b); 33 CFR 27.3 54,789 1.02041 55,907 Hazardous Substances, Releases, Liability, Compensation (Class II subsequent offense) 42 U.S.C. 9609(b); 33 CFR 27.3 164,367 1.02041 167,722 Hazardous Substances, Releases, Liability, Compensation (Judicial Assessment) 42 U.S.C. 9609(c); 33 CFR 27.3 54,789 1.02041 55,907 Hazardous Substances, Releases, Liability, Compensation (Judicial Assessment subsequent offense) 42 U.S.C. 9609(c); 33 CFR 27.3 164,367 1.02041 167,722 Safe Containers for International Cargo 46 U.S.C. App 1505(a)(2) (codified as 46 U.S.C. 80509); 33 CFR 27.3 5,989 1.02041 6,111 Suspension of Passenger Service 46 U.S.C. App 1805(c)(2) (codified 46 U.S.C. 70305); 33 CFR 27.3 59,893 1.02041 61,115 Vessel Inspection or Examination Fees 46 U.S.C. 2110(e); 33 CFR 27.3 9,054 1.02041 9,239 Alcohol and Dangerous Drug Testing 46 U.S.C. 2115; 33 CFR 27.3 7,370 1.02041 7,520 Negligent Operations: Recreational Vessels 46 U.S.C. 2302(a); 33 CFR 27.3 6,666 1.02041 6,802 Negligent Operations: Other Vessels 46 U.S.C. 2302(a); 33 CFR 27.3 33,333 1.02041 34,013 Operating a Vessel While Under the Influence of Alcohol or a Dangerous Drug 46 U.S.C. 2302(c)(1); 33 CFR 27.3 7,370 1.02041 7,520 Vessel Reporting Requirements: Owner, Charterer, Managing Operator, or Agent 46 U.S.C. 2306(a)(4); 33 CFR 27.3 11,478 1.02041 11,712 Vessel Reporting Requirements: Master 46 U.S.C. 2306(b)(2); 33 CFR 27.3 2,296 1.02041 2,343 Immersion Suits 46 U.S.C. 3102(c)(1); 33 CFR 27.3 11,478 1.02041 11,712 Inspection Permit 46 U.S.C. 3302(i)(5); 33 CFR 27.3 2,394 1.02041 2,443 Vessel Inspection; General 46 U.S.C. 3318(a); 33 CFR 27.3 11,478 1.02041 11,712 Vessel Inspection; Nautical School Vessel 46 U.S.C. 3318(g); 33 CFR 27.3 11,478 1.02041 11,712 Vessel Inspection; Failure to Give Notice IAW 3304(b) 46 U.S.C. 3318(h); 33 CFR 27.3 2,296 1.02041 2,343 Vessel Inspection; Failure to Give Notice IAW 3309(c) 46 U.S.C. 3318(i); 33 CFR 27.3 2,296 1.02041 2,343 Vessel Inspection; Vessel ≥1600 Gross Tons 46 U.S.C. 3318(j)(1); 33 CFR 27.3 22,957 1.02041 23,426 Vessel Inspection; Vessel <1600 Gross Tons 46 U.S.C. 3318(j)(1); 33 CFR 27.3 4,591 1.02041 4,685 Vessel Inspection; Failure to Comply with 3311(b) 46 U.S.C. 3318(k); 33 CFR 27.3 22,957 1.02041 23,426 Vessel Inspection; Violation of 3318(b)-3318(f) 46 U.S.C. 3318(l); 33 CFR 27.3 11,478 1.02041 11,712 List/count of Passengers 46 U.S.C. 3502(e); 33 CFR 27.3 239 1.02041 244 Notification to Passengers 46 U.S.C. 3504(c); 33 CFR 27.3 23,933 1.02041 24,421 Notification to Passengers; Sale of Tickets 46 U.S.C. 3504(c); 33 CFR 27.3 1,196 1.02041 1,220 Copies of Laws on Passenger Vessels; Master 46 U.S.C. 3506; 33 CFR 27.3 479 1.02041 489 Liquid Bulk/Dangerous Cargo 46 U.S.C. 3718(a)(1); 33 CFR 27.3 59,834 1.02041 61,055 Uninspected Vessels 46 U.S.C. 4106; 33 CFR 27.3 10,055 1.02041 10,260 Recreational Vessels (maximum for related series of violations) 46 U.S.C. 4311(b)(1); 33 CFR 27.3 316,566 1.02041 323,027 Recreational Vessels; Violation of 4307(a) 46 U.S.C. 4311(b)(1); 33 CFR 27.3 6,331 1.02041 6,460 Recreational vessels 46 U.S.C. 4311(c); 33 CFR 27.3 2,394 1.02041 2,443 Uninspected Commercial Fishing Industry Vessels 46 U.S.C. 4507; 33 CFR 27.3 10,055 1.02041 10,260 Abandonment of Barges 46 U.S.C. 4703; 33 CFR 27.3 1,704 1.02041 1,739 Load Lines 46 U.S.C. 5116(a); 33 CFR 27.3 10,957 1.02041 11,181 Load Lines; Violation of 5112(a) 46 U.S.C. 5116(b); 33 CFR 27.3 21,916 1.02041 22,363 Load Lines; Violation of 5112(b) 46 U.S.C. 5116(c); 33 CFR 27.3 10,957 1.02041 11,181 Reporting Marine Casualties 46 U.S.C. 6103(a); 33 CFR 27.3 38,175 1.02041 38,954 Reporting Marine Casualties; Violation of 6104 46 U.S.C. 6103(b); 33 CFR 27.3 10,055 1.02041 10,260 Manning of Inspected Vessels; Failure to Report Deficiency in Vessel Complement 46 U.S.C. 8101(e); 33 CFR 27.3 1,811 1.02041 1,848 Manning of Inspected Vessels 46 U.S.C. 8101(f); 33 CFR 27.3 18,107 1.02041 18,477 Manning of Inspected Vessels; Employing or Serving in Capacity not Licensed by USCG 46 U.S.C. 8101(g); 33 CFR 27.3 18,107 1.02041 18,477 Manning of Inspected Vessels; Freight Vessel <100 GT, Small Passenger Vessel, or Sailing School Vessel 46 U.S.C. 8101(h); 33 CFR 27.3 2,394 1.02041 2,443 Watchmen on Passenger Vessels 46 U.S.C. 8102(a) 2,394 1.02041 2,443 Citizenship Requirements 46 U.S.C. 8103(f) 1,196 1.02041 1,220 Watches on Vessels; Violation of 8104(a) or (b) 46 U.S.C. 8104(i) 18,107 1.02041 18,477 Watches on Vessels; Violation of 8104(c), (d), (e), or (h) 46 U.S.C. 8104(j) 18,107 1.02041 18,477 Staff Department on Vessels 46 U.S.C. 8302(e) 239 1.02041 244 Officer's Competency Certificates 46 U.S.C. 8304(d) 239 1.02041 244 Coastwise Pilotage; Owner, Charterer, Managing Operator, Agent, Master or Individual in Charge 46 U.S.C. 8502(e) 18,107 1.02041 18,477 Coastwise Pilotage; Individual 46 U.S.C. 8502(f) 18,107 1.02041 18,477 Federal Pilots 46 U.S.C. 8503 57,391 1.02041 58,562 Merchant Mariners Documents 46 U.S.C. 8701(d) 1,196 1.02041 1,220 Crew Requirements 46 U.S.C. 8702(e) 18,107 1.02041 18,477 Small Vessel Manning 46 U.S.C. 8906 38,175 1.02041 38,954 Pilotage: Great Lakes; Owner, Charterer, Managing Operator, Agent, Master or Individual in Charge 46 U.S.C. 9308(a) 18,107 1.02041 18,477 Pilotage: Great Lakes; Individual 46 U.S.C. 9308(b) 18,107 1.02041 18,477 Pilotage: Great Lakes; Violation of 9303 46 U.S.C. 9308(c) 18,107 1.02041 18,477 Failure to Report Sexual Offense 46 U.S.C. 10104(b) 9,623 1.02041 9,819 Pay Advances to Seamen 46 U.S.C. 10314(a)(2) 1,196 1.02041 1,220 Pay Advances to Seamen; Remuneration for Employment 46 U.S.C. 10314(b) 1,196 1.02041 1,220 Allotment to Seamen 46 U.S.C. 10315(c) 1,196 1.02041 1,220 Seamen Protection; General 46 U.S.C. 10321 8,296 1.02041 8,465 Coastwise Voyages: Advances 46 U.S.C. 10505(a)(2) 8,296 1.02041 8,465 Coastwise Voyages: Advances; Remuneration for Employment 46 U.S.C. 10505(b) 8,296 1.02041 8,465 Coastwise Voyages: Seamen Protection; General 46 U.S.C. 10508(b) 8,296 1.02041 8,465 Effects of Deceased Seamen 46 U.S.C. 10711 479 1.02041 489 Complaints of Unfitness 46 U.S.C. 10902(a)(2) 1,196 1.02041 1,220 Proceedings on Examination of Vessel 46 U.S.C. 10903(d) 239 1.02041 244 Permission to Make Complaint 46 U.S.C. 10907(b) 1,196 1.02041 1,220 Accommodations for Seamen 46 U.S.C. 11101(f) 1,196 1.02041 1,220 Medicine Chests on Vessels 46 U.S.C. 11102(b) 1,196 1.02041 1,220 Destitute Seamen 46 U.S.C. 11104(b) 239 1.02041 244 Wages on Discharge 46 U.S.C. 11105(c) 1,196 1.02041 1,220 Log Books; Master Failing to Maintain 46 U.S.C. 11303(a) 479 1.02041 489 Log Books; Master Failing to Make Entry 46 U.S.C. 11303(b) 479 1.02041 489 Log Books; Late Entry 46 U.S.C. 11303(c) 359 1.02041 366 Carrying of Sheath Knives 46 U.S.C. 11506 120 1.02041 122 Vessel Documentation 46 U.S.C. 12151(a)(1) 15,675 1.02041 15,995 Documentation of Vessels—Related to Activities involving mobile offshore drilling units 46 U.S.C. 12151(a)(2) 26,126 1.02041 26,659 Vessel Documentation; Fishery Endorsement 46 U.S.C. 12151(c) 119,786 1.02041 122,231 Numbering of Undocumented Vessels—Willful violation 46 U.S.C. 12309(a) 11,967 1.02041 12,211 Numbering of Undocumented Vessels 46 U.S.C. 12309(b) 2,394 1.02041 2,443 Vessel Identification System 46 U.S.C. 12507(b) 20,111 1.02041 20,521 Measurement of Vessels 46 U.S.C. 14701 43,832 1.02041 44,727 Measurement; False Statements 46 U.S.C. 14702 43,832 1.02041 44,727 Commercial Instruments and Maritime Liens 46 U.S.C. 31309 20,111 1.02041 20,521 Commercial Instruments and Maritime Liens; Mortgagor 46 U.S.C. 31330(a)(2) 20,111 1.02041 20,521 Commercial Instruments and Maritime Liens; Violation of 31329 46 U.S.C. 31330(b)(2) 50,276 1.02041 51,302 Port Security 46 U.S.C. 70119(a) 33,333 1.02041 34,013 Port Security—Continuing Violations 46 U.S.C. 70119(b) 59,893 1.02041 61,115 Maritime Drug Law Enforcement 46 U.S.C. 70506(c) 5,526 1.02041 5,639 Hazardous Materials: Related to Vessels 49 U.S.C. 5123(a)(1) 78,376 1.02041 79,976 Hazardous Materials: Related to Vessels—Penalty from Fatalities, Serious Injuries/Illness or substantial Damage to Property 49 U.S.C. 5123(a)(2) 182,877 1.02041 186,610 Hazardous Materials: Related to Vessels; Training 49 U.S.C. 5123(a)(3) 471 1.02041 481 * OMB, Implementation of the 2017 annual adjustment pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, December 15, 2017. https://www.whitehouse.gov/wp-content/uploads/2017/11/M-18-03.pdf. ** Enacted under the Tariff Act; exempt from inflation adjustments.
    E. Transportation Security Administration

    The Transportation Security Administration (TSA) is updating its civil penalties regulation in accordance with the 2015 Act. Pursuant to its statutory authority in 49 U.S.C. 46301(a)(1) and (4) and 49 U.S.C. 114(v),7 TSA may impose penalties for violations of any statute that TSA administers, whether an implementing regulation or order imposes the penalty. TSA assesses these penalties for a wide variety of aviation and surface security requirements, including violations of TSA's requirements applicable to Transportation Worker Identification Credentials (TWIC),8 as well as violations of requirements described in chapter 449 of title 49 of the United States Code. These penalties can apply to a wide variety of situations, as described in the statutory and regulatory provisions, as well as in guidance that TSA publishes. Below is a table showing the 2018 adjustment for the penalties that TSA administers.

    7 As amended by sec. 1302 of the Implementing Recommendations of the 9/11 Commission Act of 2007 (Pub. L. 110-53, 121 Stat. 266 (Aug. 3, 2007)).

    8See, e.g., 46 U.S.C. 70105, 49 U.S.C. 46302 and 46303, and U.S.C. chapter 449.

    Table 5—Transportation Security Administration Civil Penalties Adjustments Penalty name Citation Penalty amount as adjusted in the 2017 FR Multiplier * New penalty as
  • adjusted by this
  • final rule
  • Violation of 49 U.S.C. ch. 449 (except secs. 44902, 44903(d), 44907(a)-(d)(1)(A), 44907(d)(1)(C)-(f), 44908, and 44909), or 49 U.S.C. 46302 or 46303, a regulation prescribed, or order issued thereunder by a person operating an aircraft for the transportation of passengers or property for compensation 49 U.S.C. 46301(a)(1), (4); 49 CFR 1503.401(c)(2) $32,666 (up to a total of $522,657 per civil penalty action) 1.02041 $33,333 (up to a total of $533,324 per civil penalty action). Violation of 49 U.S.C. ch. 449 (except secs. 44902, 44903(d), 44907(a)-(d)(1)(A), 44907(d)(1)(C)-(f), 44908, and 44909), or 49 U.S.C. 46302 or 46303, a regulation prescribed, or order issued thereunder by an individual (except an airman serving as an airman), any person not operating an aircraft for the transportation of passengers or property for compensation, or a small business concern 49 U.S.C. 46301(a)(1), (4); 49 CFR 1503.401(c)(1) $13,066 (up to a total of $65,333 total for small businesses, $522,657 for others) 1.02041 $13,333(up to a total of $66,666 total for small business, $533,324 for others). Violation of any other provision of title 49 U.S.C. or of 46 U.S.C. ch. 701, a regulation prescribed, or order issued thereunder 49 U.S.C. 114(v); 49 CFR 1503.401(b) $11,182 (up to a total of $55,910 total for small businesses, $447,280 for others) 1.02041 $11,410 (up to a total of $57,051 total for small businesses, $456,409 for others). * OMB, Implementation of the 2018 annual adjustment pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, December 15, 2017. https://www.whitehouse.gov/wp-content/uploads/2017/11/M-18-03.pdf.
    V. Administrative Procedure Act

    DHS is promulgating this final rule to ensure that the amount of civil penalties that DHS assesses or enforces reflects the statutorily mandated ranges as adjusted for inflation. The 2015 Act provides a clear formula for adjustment of the civil penalties, leaving DHS and its components with little room for discretion. DHS and its components have been charged only with performing ministerial computations to determine the amounts of adjustments for inflation to civil monetary penalties. In these annual adjustments DHS is merely updating the penalty amounts by applying the cost-of-living adjustment multiplier that OMB has provided to agencies. Furthermore, the 2015 Act specifically instructed that agencies make the required annual adjustments notwithstanding section 553 of title 5 of the United States Code. Thus, as specified in the 2015 Act, the prior public notice-and-comment procedures and delayed effective date requirements of the Administrative Procedure Act (APA) do not apply to this rule.

    VI. Regulatory Analyses A. Executive Orders 12866 and 13563

    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 (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. OMB has not designated this final rule a “significant regulatory action” under section 3(f) of Executive Order 12866. Accordingly, OMB has not reviewed this rule.

    This final rule makes nondiscretionary adjustments to existing civil monetary penalties in accordance with the 2015 Act and OMB guidance.9 DHS therefore did not consider alternatives and does not have the flexibility to alter the adjustments of the civil monetary penalty amounts as provided in this rule. To the extent this final rule increases civil monetary penalties, it would result in an increase in transfers from persons or entities assessed a civil monetary penalty to the government.

    9 OMB, Implementation of the 2018 annual adjustment pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, December 15, 2017. https://www.whitehouse.gov/wp-content/uploads/2017/11/M-18-03.pdf.

    B. Regulatory Flexibility Act

    The Regulatory Flexibility Act applies only to rules for which an agency publishes a notice of proposed rulemaking pursuant to 5 U.S.C. 553(b). See 5 U.S.C. 601-612. The Regulatory Flexibility Act does not apply to this final rule, because a notice of proposed rulemaking was not required for the reasons stated above.

    C. 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. This final rule will not result in such an expenditure.

    D. Paperwork Reduction Act

    The provisions of the Paperwork Reduction Act of 1995, 44 U.S.C. chapter 35, and its implementing regulations, 5 CFR part 1320, do not apply to this final rule, because this final rule does not trigger any new or revised recordkeeping or reporting.

    List of Subjects 6 CFR Part 27

    Reporting and recordkeeping requirements, Security measures.

    8 CFR Part 270

    Administrative practice and procedure, Aliens, Employment, Fraud, Penalties.

    8 CFR Part 274a

    Administrative practice and procedure, Aliens, Employment, Penalties, Reporting and recordkeeping requirements.

    8 CFR Part 280

    Administrative practice and procedure, Immigration, Penalties.

    19 CFR Part 4

    Customs duties and inspection, Exports, Freight, Harbors, Maritime carriers, Oil pollution, Reporting and recordkeeping requirements, Vessels.

    33 CFR Part 27

    Administrative practice and procedure, Penalties.

    49 CFR Part 1503

    Administrative practice and procedure, Investigations, Law enforcement, Penalties.

    Amendments to the Regulations

    Accordingly, for the reasons stated in the preamble, DHS is amending 6 CFR part 27, 8 CFR parts 270, 274a, and 280, 19 CFR part 4, 33 CFR part 27, and 49 CFR part 1503 as follows:

    Title 6—Domestic Security PART 27—CHEMICAL FACILITY ANTI-TERRORISM STANDARDS 1. The authority citation for part 27 continues to read as follows: Authority:

    6 U.S.C. 624; Pub. L. 101-410, 104 Stat. 890, as amended by Pub. L. 114-74, 129 Stat. 599.

    2. In § 27.300, revise paragraph (b)(3) to read as follows:
    § 27.300 Orders.

    (b) * * *

    (3) Where the Assistant Secretary determines that a facility is in violation of an Order issued pursuant to paragraph (a) of this section and issues an Order Assessing Civil Penalty pursuant to paragraph (b)(1) of this section, a chemical facility is liable to the United States for a civil penalty of not more than $25,000 for each day during which the violation continues, if the violation of the Order occurred on or before November 2, 2015, or $34,013 for each day during which the violation of the Order continues, if the violation occurred after November 2, 2015.

    Title 8—Aliens and Nationality PART 270—PENALTIES FOR DOCUMENT FRAUD 3. The authority citation for part 270 continues to read as follows: Authority:

    8 U.S.C. 1101, 1103, and 1324c; Pub. L. 101-410, 104 Stat. 890, as amended by Pub. L. 104-134, 110 Stat. 1321 and Pub. L. 114-74, 129 Stat. 599.

    4. In § 270.3, revise paragraphs (b)(1)(ii)(A) through (D) to read as follows:
    § 270.3 Penalties.

    (b) * * *

    (1) * * *

    (ii) * * *

    (A) First offense under section 274C(a)(1) through (a)(4). Not less than $275 and not exceeding $2,200 for each fraudulent document or each proscribed activity described in section 274C(a)(1) through (a)(4) of the Act before March 27, 2008; not less than $375 and not exceeding $3,200 for each fraudulent document or each proscribed activity described in section 274C(a)(1) through (a)(4) of the Act on or after March 27, 2008 and on or before November 2, 2015; and not less than $461 and not exceeding $3,695 for each fraudulent document or each proscribed activity described in section 274C(a)(1) through (a)(4) of the Act after November 2, 2015.

    (B) First offense under section 274C(a)(5) or (a)(6). Not less than $250 and not exceeding $2,000 for each fraudulent document or each proscribed activity described in section 274C(a)(5) or (a)(6) of the Act before March 27, 2008; not less than $275 and not exceeding $2,200 for each fraudulent document or each proscribed activity described in section 274C(a)(5) or (a)(6) of the Act on or after March 27, 2008 and on or before November 2, 2015; and not less than $390 and not exceeding $3,116 for each fraudulent document or each proscribed activity described in section 274C(a)(5) or (a)(6) of the Act after November 2, 2015.

    (C) Subsequent offenses under section 274C(a)(1) through (a)(4). Not less than $2,200 and not more than $5,500 for each fraudulent document or each proscribed activity described in section 274C(a)(1) through (a)(4) of the Act before March 27, 2008; not less than $3,200 and not exceeding $6,500 for each fraudulent document or each proscribed activity described in section 274C(a)(1) through (a)(4) of the Act occurring on or after March 27, 2008 and on or before November 2, 2015; and not less than $3,695 and not more than $9,239 for each fraudulent document or each proscribed activity described in section 274C(a)(1) through (a)(4) of the Act after November 2, 2015.

    (D) Subsequent offenses under section 274C(a)(5) or (a)(6). Not less than $2,000 and not more than $5,000 for each fraudulent document or each proscribed activity described in section 274C(a)(5) or (a)(6) of the Act before March 27, 2008; not less than $2,200 and not exceeding $5,500 for each fraudulent document or each proscribed activity described in section 274C(a)(5) or (a)(6) of the Act occurring on or after March 27, 2008 and on or before November 2, 2015; and not less than $3,116 and not more than $7,791 for each fraudulent document or each proscribed activity described in section 274C(a)(5) or (a)(6) of the Act after November 2, 2015.

    PART 274a—CONTROL OF EMPLOYMENT OF ALIENS 5. The authority citation for part 274a continues to read as follows: Authority:

    8 U.S.C. 1101, 1103, 1324a; 48 U.S.C. 1806; 8 CFR part 2; Pub. L. 101-410, 104 Stat. 890, as amended by Pub. L. 114-74, 129 Stat. 599.

    6. In § 274a.8, revise paragraph (b) to read as follows:
    § 274a.8 Prohibition of indemnity bonds.

    (b) Penalty. Any person or other entity who requires any individual to post a bond or security as stated in this section shall, after notice and opportunity for an administrative hearing in accordance with section 274A(e)(3)(B) of the Act, be subject to a civil monetary penalty of $1,000 for each violation before September 29, 1999, of $1,100 for each violation occurring on or after September 29, 1999 but on or before November 2, 2015, and of $2,236 for each violation occurring after November 2, 2015, and to an administrative order requiring the return to the individual of any amounts received in violation of this section or, if the individual cannot be located, to the general fund of the Treasury.

    7. In § 274a.10, revise paragraphs (b)(1)(ii)(A) through (C) and (b)(2) introductory text to read as follows:
    § 274a.10 Penalties.

    (b) * * *

    (1) * * *

    (ii) * * *

    (A) First offense—not less than $275 and not more than $2,200 for each unauthorized alien with respect to whom the offense occurred before March 27, 2008; not less than $375 and not exceeding $3,200, for each unauthorized alien with respect to whom the offense occurred occurring on or after March 27, 2008 and on or before November 2, 2015; and not less than $559 and not more than $4,473 for each unauthorized alien with respect to whom the offense occurred occurring after November 2, 2015.

    (B) Second offense—not less than $2,200 and not more than $5,500 for each unauthorized alien with respect to whom the second offense occurred before March 27, 2008; not less than $3,200 and not more than $6,500, for each unauthorized alien with respect to whom the second offense occurred on or after March 27, 2008 and on or before November 2, 2015; and not less than $4,473 and not more than $11,181 for each unauthorized alien with respect to whom the second offense occurred after November 2, 2015; or

    (C) More than two offenses—not less than $3,300 and not more than $11,000 for each unauthorized alien with respect to whom the third or subsequent offense occurred before March 27, 2008; not less than $4,300 and not exceeding $16,000, for each unauthorized alien with respect to whom the third or subsequent offense occurred on or after March 27, 2008 and on or before November 2, 2015; and not less than $6,709 and not more than $22,363 for each unauthorized alien with respect to whom the third or subsequent offense occurred after November 2, 2015; and

    (2) A respondent determined by the Service (if a respondent fails to request a hearing) or by an administrative law judge, to have failed to comply with the employment verification requirements as set forth in § 274a.2(b), shall be subject to a civil penalty in an amount of not less than $100 and not more than $1,000 for each individual with respect to whom such violation occurred before September 29, 1999; not less than $110 and not more than $1,100 for each individual with respect to whom such violation occurred on or after September 29, 1999 and on or before November 2, 2015; and not less than $224 and not more than $2,236 for each individual with respect to whom such violation occurred after November 2, 2015. In determining the amount of the penalty, consideration shall be given to:

    PART 280—IMPOSITION AND COLLECTION OF FINES 8. The authority citation for part 280 continues to read as follows: Authority:

    8 U.S.C. 1103, 1221, 1223, 1227, 1229, 1253, 1281, 1283, 1284, 1285, 1286, 1322, 1323, 1330; 66 Stat. 173, 195, 197, 201, 203, 212, 219, 221-223, 226, 227, 230; Pub. L. 101-410, 104 Stat. 890, as amended by Pub. L. 114-74, 129 Stat. 599.

    9. In § 280.53, revise paragraphs (b)(1) through (15) to read as follows:
    § 280.53 Civil monetary penalties inflation adjustment.

    (b) * * *

    (1) Section 231(g) of the Act, Penalties for non-compliance with arrival and departure manifest requirements for passengers, crewmembers, or occupants transported on commercial vessels or aircraft arriving to or departing from the United States: From $1,333 to $1,360.

    (2) Section 234 of the Act, Penalties for non-compliance with landing requirements at designated ports of entry for aircraft transporting aliens: From $3,621 to $3,695.

    (3) Section 240B(d) of the Act, Penalties for failure to depart voluntarily: From $1,527 minimum/$7,635 maximum to $1,558 minimum/$7,791 maximum.

    (4) Section 243(c)(1)(A) of the Act, Penalties for violations of removal orders relating to aliens transported on vessels or aircraft, under section 241(d) of the Act, or for costs associated with removal under section 241(e) of the Act: From $3,054 to $3,116;

    (5) Penalties for failure to remove alien stowaways under section 241(d)(2): From $7,635 to $7,791.

    (6) Section 251(d) of the Act, Penalties for failure to report an illegal landing or desertion of alien crewmen, and for each alien not reported on arrival or departure manifest or lists required in accordance with section 251 of the Act: From $362 to $369; and penalties for use of alien crewmen for longshore work in violation of section 251(d) of the Act: From $9,054 to $9,239.

    (7) Section 254(a) of the Act, Penalties for failure to control, detain, or remove alien crewmen: From $906 minimum/$5,432 maximum to $924 minimum/$5,543 maximum.

    (8) Section 255 of the Act, Penalties for employment on passenger vessels of aliens afflicted with certain disabilities: From $1,811 to $1,848.

    (9) Section 256 of the Act, Penalties for discharge of alien crewmen: From $2,716 minimum/$5,432 maximum to $2,771 minimum/$5,543 maximum.

    (10) Section 257 of the Act, Penalties for bringing into the United States alien crewmen with intent to evade immigration laws: From $18,107 maximum to $18,477 maximum.

    (11) Section 271(a) of the Act, Penalties for failure to prevent the unauthorized landing of aliens: From $5,432 to $5,543.

    (12) Section 272(a) of the Act, Penalties for bringing to the United States aliens subject to denial of admission on a health-related ground: From $5,432 to $5,543.

    (13) Section 273(b) of the Act, Penalties for bringing to the United States aliens without required documentation: From $5,432 to $5,543.

    (14) Section 274D of the Act, Penalties for failure to depart: From $763 to $779, for each day the alien is in violation.

    (15) Section 275(b) of the Act, Penalties for improper entry: From $76 minimum/$382 maximum to $78 minimum/$390 maximum, for each entry or attempted entry.

    Title 19—Customs Duties PART 4—VESSELS IN FOREIGN AND DOMESTIC TRADES 10. The authority citation for part 4 continues to read in part as follows: Authority:

    5 U.S.C. 301; 19 U.S.C. 66, 1431, 1433, 1434, 1624, 2071 note; 46 U.S.C. 501, 60105.

    Sections 4.80, 4.80a, and 4.80b also issued under 19 U.S.C. 1706a; 28 U.S.C. 2461 note; 46 U.S.C. 12112, 12117, 12118, 50501-55106, 55107, 55108, 55110, 55114, 55115, 55116, 55117, 55119, 56101, 55121, 56101, 57109; Pub. L. 108-7, Division B, Title II, § 211;

    Section 4.92 also issued under 28 U.S.C. 2461 note; 46 U.S.C. 55111;

    11. In § 4.80, revise paragraph (b)(2) to read as follows:
    § 4.80 Vessels entitled to engage in coastwise trade.

    (b) * * *

    (2) The penalty imposed for the unlawful transportation of passengers between coastwise points is $300 for each passenger so transported and landed on or before November 2, 2015, and $778 for each passenger so transported and landed after November 2, 2015 (46 U.S.C. 55103, as adjusted by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015).

    12. In § 4.92, revise the second and third sentences to read as follows:
    § 4.92 Towing.

    * * * The penalties for violation of this provision occurring on or before November 2, 2015, are a fine of from $350 to $1,100 against the owner or master of the towing vessel and a further penalty against the towing vessel of $60 per ton of the towed vessel. The penalties for violation of this provision occurring after November 2, 2015, are a fine of from $907 to $2,852 against the owner or master of the towing vessel and a further penalty against the towing vessel of $155 per ton of the towed vessel (46 U.S.C. 55111, as adjusted by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015).

    Title 33—Navigation and Navigable Waters PART 27—ADJUSTMENT OF CIVIL MONETARY PENALTIES FOR INFLATION 13. The authority citation for part 27 continues to read as follows: Authority:

    Secs. 1-6, Pub. L. 101-410, 104 Stat. 890, as amended by Sec. 31001(s)(1), Pub. L. 104-134, 110 Stat. 1321 (28 U.S.C. 2461 note); Department of Homeland Security Delegation No. 0170.1, sec. 2 (106).

    14. In § 27.3, revise the third sentence of the introductory text and table 1 to read as follows:
    § 27.3 Penalty adjustment table.

    * * * The adjusted civil penalty amounts listed in Table 1 are applicable for penalty assessments issued after April 2, 2018, with respect to violations occurring after November 2, 2015. * * *

    Table 1—Civil Monetary Penalty Inflation Adjustments U.S. Code citation Civil monetary penalty description 2018 adjusted
  • maximum
  • penalty
  • amount
  • 14 U.S.C. 88(c) Saving Life and Property $10,389 14 U.S.C. 88(e) Saving Life and Property; Intentional Interference with Broadcast 1,066 14 U.S.C. 645(i) Confidentiality of Medical Quality Assurance Records (first offense) 5,218 14 U.S.C. 645(i) Confidentiality of Medical Quality Assurance Records (subsequent offenses) 34,791 16 U.S.C. 4711(g)(1) Aquatic Nuisance Species in Waters of the United States 38,954 19 U.S.C. 70 Obstruction of Revenue Officers by Masters of Vessels 7,779 19 U.S.C. 70 Obstruction of Revenue Officers by Masters of Vessels—Minimum Penalty 1,815 19 U.S.C. 1581(d) Failure to Stop Vessel When Directed; Master, Owner, Operator or Person in Charge 1 5,000 19 U.S.C. 1581(d) Failure to Stop Vessel When Directed; Master, Owner, Operator or Person in Charge—Minimum Penalty 1 1,000 33 U.S.C. 471 Anchorage Ground/Harbor Regulations General 11,279 33 U.S.C. 474 Anchorage Ground/Harbor Regulations St. Mary's River 778 33 U.S.C. 495(b) Bridges/Failure to Comply with Regulations 28,474 33 U.S.C. 499(c) Bridges/Drawbridges 28,474 33 U.S.C. 502(c) Bridges/Failure to Alter Bridge Obstructing Navigation 28,474 33 U.S.C. 533(b) Bridges/Maintenance and Operation 28,474 33 U.S.C. 1208(a) Bridge to Bridge Communication; Master, Person in Charge or Pilot 2,074 33 U.S.C. 1208(b) Bridge to Bridge Communication; Vessel 2,074 33 U.S.C. 1232(a) PWSA Regulations 91,901 33 U.S.C. 1236(b) Vessel Navigation: Regattas or Marine Parades; Unlicensed Person in Charge 9,239 33 U.S.C. 1236(c) Vessel Navigation: Regattas or Marine Parades; Owner Onboard Vessel 9,239 33 U.S.C. 1236(d) Vessel Navigation: Regattas or Marine Parades; Other Persons 4,619 33 U.S.C. 1321(b)(6)(B)(i) Oil/Hazardous Substances: Discharges (Class I per violation) 18,477 33 U.S.C. 1321(b)(6)(B)(i) Oil/Hazardous Substances: Discharges (Class I total under paragraph) 46,192 33 U.S.C. 1321(b)(6)(B)(ii) Oil/Hazardous Substances: Discharges (Class II per day of violation) 18,477 33 U.S.C. 1321(b)(6)(B)(ii) Oil/Hazardous Substances: Discharges (Class II total under paragraph) 230,958 33 U.S.C. 1321(b)(7)(A) Oil/Hazardous Substances: Discharges (per day of violation) Judicial Assessment 46,192 33 U.S.C. 1321(b)(7)(A) Oil/Hazardous Substances: Discharges (per barrel of oil or unit discharged) Judicial Assessment 1,848 33 U.S.C. 1321(b)(7)(B) Oil/Hazardous Substances: Failure to Carry Out Removal/Comply With Order (Judicial Assessment) 46,192 33 U.S.C. 1321(b)(7)(C) Oil/Hazardous Substances: Failure to Comply with Regulation Issued Under 1321(j) (Judicial Assessment) 46,192 33 U.S.C. 1321(b)(7)(D) Oil/Hazardous Substances: Discharges, Gross Negligence (per barrel of oil or unit discharged) Judicial Assessment 5,543 33 U.S.C. 1321(b)(7)(D) Oil/Hazardous Substances: Discharges, Gross Negligence—Minimum Penalty (Judicial Assessment) 184,767 33 U.S.C. 1322(j) Marine Sanitation Devices; Operating 7,779 33 U.S.C. 1322(j) Marine Sanitation Devices; Sale or Manufacture 20,742 33 U.S.C. 1608(a) International Navigation Rules; Operator 14,543 33 U.S.C. 1608(b) International Navigation Rules; Vessel 14,543 33 U.S.C. 1908(b)(1) Pollution from Ships; General 72,718 33 U.S.C. 1908(b)(2) Pollution from Ships; False Statement 14,543 33 U.S.C. 2072(a) Inland Navigation Rules; Operator 14,543 33 U.S.C. 2072(b) Inland Navigation Rules; Vessel 14,543 33 U.S.C. 2609(a) Shore Protection; General 51,302 33 U.S.C. 2609(b) Shore Protection; Operating Without Permit 20,521 33 U.S.C. 2716a(a) Oil Pollution Liability and Compensation 46,192 33 U.S.C. 3852(a)(1)(A) Clean Hulls; Civil Enforcement 42,292 33 U.S.C. 3852(a)(1)(A) Clean Hulls; related to false statements 56,391 33 U.S.C. 3852(c) Clean Hulls; Recreational Vessels 5,639 42 U.S.C. 9609(a) Hazardous Substances, Releases, Liability, Compensation (Class I) 55,907 42 U.S.C. 9609(b) Hazardous Substances, Releases, Liability, Compensation (Class II) 55,907 42 U.S.C. 9609(b) Hazardous Substances, Releases, Liability, Compensation (Class II subsequent offense) 167,722 42 U.S.C. 9609(c) Hazardous Substances, Releases, Liability, Compensation (Judicial Assessment) 55,907 42 U.S.C. 9609(c) Hazardous Substances, Releases, Liability, Compensation (Judicial Assessment subsequent offense) 167,722 46 U.S.C. 80509(a) Safe Containers for International Cargo 6,111 46 U.S.C. 70305(c) Suspension of Passenger Service 61,115 46 U.S.C. 2110(e) Vessel Inspection or Examination Fees 9,239 46 U.S.C. 2115 Alcohol and Dangerous Drug Testing 7,520 46 U.S.C. 2302(a) Negligent Operations: Recreational Vessels 6,802 46 U.S.C. 2302(a) Negligent Operations: Other Vessels 34,013 46 U.S.C. 2302(c)(1) Operating a Vessel While Under the Influence of Alcohol or a Dangerous Drug 7,520 46 U.S.C. 2306(a)(4) Vessel Reporting Requirements: Owner, Charterer, Managing Operator, or Agent 11,712 46 U.S.C. 2306(b)(2) Vessel Reporting Requirements: Master 2,343 46 U.S.C. 3102(c)(1) Immersion Suits 11,712 46 U.S.C. 3302(i)(5) Inspection Permit 2,443 46 U.S.C. 3318(a) Vessel Inspection; General 11,712 46 U.S.C. 3318(g) Vessel Inspection; Nautical School Vessel 11,712 46 U.S.C. 3318(h) Vessel Inspection; Failure to Give Notice IAW 3304(b) 2,343 46 U.S.C. 3318(i) Vessel Inspection; Failure to Give Notice IAW 3309(c) 2,343 46 U.S.C. 3318(j)(1) Vessel Inspection; Vessel ≥1600 Gross Tons 23,426 46 U.S.C. 3318(j)(1) Vessel Inspection; Vessel <1600 Gross Tons 4,685 46 U.S.C. 3318(k) Vessel Inspection; Failure to Comply with 3311(b) 23,426 46 U.S.C. 3318(l) Vessel Inspection; Violation of 3318(b)-3318(f) 11,712 46 U.S.C. 3502(e) List/count of Passengers 244 46 U.S.C. 3504(c) Notification to Passengers 24,421 46 U.S.C. 3504(c) Notification to Passengers; Sale of Tickets 1,220 46 U.S.C. 3506 Copies of Laws on Passenger Vessels; Master 489 46 U.S.C. 3718(a)(1) Liquid Bulk/Dangerous Cargo 61,055 46 U.S.C. 4106 Uninspected Vessels 10,260 46 U.S.C. 4311(b)(1) Recreational Vessels (maximum for related series of violations) 323,027 46 U.S.C. 4311(b)(1) Recreational Vessels; Violation of 4307(a) 6,460 46 U.S.C. 4311(c) Recreational Vessels 2,443 46 U.S.C. 4507 Uninspected Commercial Fishing Industry Vessels 10,260 46 U.S.C. 4703 Abandonment of Barges 1,739 46 U.S.C. 5116(a) Load Lines 11,181 46 U.S.C. 5116(b) Load Lines; Violation of 5112(a) 22,363 46 U.S.C. 5116(c) Load Lines; Violation of 5112(b) 11,181 46 U.S.C. 6103(a) Reporting Marine Casualties 38,954 46 U.S.C. 6103(b) Reporting Marine Casualties; Violation of 6104 10,260 46 U.S.C. 8101(e) Manning of Inspected Vessels; Failure to Report Deficiency in Vessel Complement 1,848 46 U.S.C. 8101(f) Manning of Inspected Vessels 18,477 46 U.S.C. 8101(g) Manning of Inspected Vessels; Employing or Serving in Capacity not Licensed by USCG 18,477 46 U.S.C. 8101(h) Manning of Inspected Vessels; Freight Vessel <100 GT, Small Passenger Vessel, or Sailing School Vessel 2,443 46 U.S.C. 8102(a) Watchmen on Passenger Vessels 2,443 46 U.S.C. 8103(f) Citizenship Requirements 1,220 46 U.S.C. 8104(i) Watches on Vessels; Violation of 8104(a) or (b) 18,477 46 U.S.C. 8104(j) Watches on Vessels; Violation of 8104(c), (d), (e), or (h) 18,477 46 U.S.C. 8302(e) Staff Department on Vessels 244 46 U.S.C. 8304(d) Officer's Competency Certificates 244 46 U.S.C. 8502(e) Coastwise Pilotage; Owner, Charterer, Managing Operator, Agent, Master or Individual in Charge 18,477 46 U.S.C. 8502(f) Coastwise Pilotage; Individual 18,477 46 U.S.C. 8503 Federal Pilots 58,562 46 U.S.C. 8701(d) Merchant Mariners Documents 1,220 46 U.S.C. 8702(e) Crew Requirements 18,477 46 U.S.C. 8906 Small Vessel Manning 38,954 46 U.S.C. 9308(a) Pilotage: Great Lakes; Owner, Charterer, Managing Operator, Agent, Master or Individual in Charge 18,477 46 U.S.C. 9308(b) Pilotage: Great Lakes; Individual 18,477 46 U.S.C. 9308(c) Pilotage: Great Lakes; Violation of 9303 18,477 46 U.S.C. 10104(b) Failure to Report Sexual Offense 9,819 46 U.S.C. 10314(a)(2) Pay Advances to Seamen 1,220 46 U.S.C. 10314(b) Pay Advances to Seamen; Remuneration for Employment 1,220 46 U.S.C. 10315(c) Allotment to Seamen 1,220 46 U.S.C. 10321 Seamen Protection; General 8,465 46 U.S.C. 10505(a)(2) Coastwise Voyages: Advances 8,465 46 U.S.C. 10505(b) Coastwise Voyages: Advances; Remuneration for Employment 8,465 46 U.S.C. 10508(b) Coastwise Voyages: Seamen Protection; General 8,465 46 U.S.C. 10711 Effects of Deceased Seamen 489 46 U.S.C. 10902(a)(2) Complaints of Unfitness 1,220 46 U.S.C. 10903(d) Proceedings on Examination of Vessel 244 46 U.S.C. 10907(b) Permission to Make Complaint 1,220 46 U.S.C. 11101(f) Accommodations for Seamen 1,220 46 U.S.C. 11102(b) Medicine Chests on Vessels 1,220 46 U.S.C. 11104(b) Destitute Seamen 244 46 U.S.C. 11105(c) Wages on Discharge 1,220 46 U.S.C. 11303(a) Log Books; Master Failing to Maintain 489 46 U.S.C. 11303(b) Log Books; Master Failing to Make Entry 489 46 U.S.C. 11303(c) Log Books; Late Entry 366 46 U.S.C. 11506 Carrying of Sheath Knives 122 46 U.S.C. 12151(a)(1) Vessel Documentation 15,995 46 U.S.C. 12151(a)(2) Documentation of Vessels- Related to activities involving mobile offshore drilling units 26,659 46 U.S.C. 12151(c) Vessel Documentation; Fishery Endorsement 122,231 46 U.S.C. 12309(a) Numbering of Undocumented Vessels—Willful violation 12,211 46 U.S.C. 12309(b) Numbering of Undocumented Vessels 2,443 46 U.S.C. 12507(b) Vessel Identification System 20,521 46 U.S.C. 14701 Measurement of Vessels 44,727 46 U.S.C. 14702 Measurement; False Statements 44,727 46 U.S.C. 31309 Commercial Instruments and Maritime Liens 20,521 46 U.S.C. 31330(a)(2) Commercial Instruments and Maritime Liens; Mortgagor 20,521 46 U.S.C. 31330(b)(2) Commercial Instruments and Maritime Liens; Violation of 31329 51,302 46 U.S.C. 70119(a) Port Security 34,013 46 U.S.C. 70119(b) Port Security—Continuing Violations 61,115 46 U.S.C. 70506 Maritime Drug Law Enforcement; Penalties 5,639 49 U.S.C. 5123(a)(1) Hazardous Materials: Related to Vessels—Maximum Penalty 79,976 49 U.S.C. 5123(a)(2) Hazardous Materials: Related to Vessels—Penalty from Fatalities, Serious Injuries/Illness or Substantial Damage to Property 186,610 49 U.S.C. 5123(a)(3) Hazardous Materials: Related to Vessels—Training 481 1 Enacted under the Tariff Act of 1930, exempt from inflation adjustments
    Title 49—Transportation PART 1503—INVESTIGATIVE AND ENFORCEMENT PROCEDURES 15. The authority citation for part 1503 continues to read as follows: Authority:

    6 U.S.C. 1142; 18 U.S.C. 6002; 28 U.S.C. 2461 (note); 49 U.S.C. 114, 20109, 31105, 40113-40114, 40119, 44901-44907, 46101-46107, 46109-46110, 46301, 46305, 46311, 46313-46314; Pub. L. 104-134, as amended by Pub. L. 114-74.

    16. In § 1503.401, revise paragraphs (b)(1) and (2) and (c)(1) through (3) to read as follows:
    § 1503.401 Maximum penalty amounts.

    (b) * * *

    (1) For violations that occurred on or before November 2, 2015, $10,000 per violation, up to a total of $50,000 per civil penalty action, in the case of an individual or small business concern, as defined in section 3 of the Small Business Act (15 U.S.C. 632). For violations that occurred after November 2, 2015 $11,410 per violation, up to a total of $57,051 per civil penalty action, in the case of an individual or small business concern; and

    (2) For violations that occurred on or before November 2, 2015, $10,000 per violation, up to a total of $400,000 per civil penalty action, in the case of any other person. For violations that occurred after November 2, 2015, $11,410 per violation, up to a total of $456,409 per civil penalty action, in the case of any other person.

    (c) * * *

    (1) For violations that occurred on or before November 2, 2015, $10,000 per violation, up to a total of $50,000 per civil penalty action, in the case of an individual or small business concern, as defined in section 3 of the Small Business Act (15 U.S.C. 632). For violations that occurred after November 2, 2015, $13,333 per violation, up to a total of $66,666 per civil penalty action, in the case of an individual (except an airman serving as an airman), or a small business concern.

    (2) For violations that occurred on or before November 2, 2015, $10,000 per violation, up to a total of $400,000 per civil penalty action, in the case of any other person (except an airman serving as an airman) not operating an aircraft for the transportation of passengers or property for compensation. For violations that occurred after November 2, 2015, $13,333 per violation, up to a total of $533,324 per civil penalty action, in the case of any other person (except an airman serving as an airman) not operating an aircraft for the transportation of passengers or property for compensation.

    (3) For violations that occurred on or before November 2, 2015, $25,000 per violation, up to a total of $400,000 per civil penalty action, in the case of a person operating an aircraft for the transportation of passengers or property for compensation (except an individual serving as an airman). For violations that occurred after November 2, 2015, $33,333 per violation, up to a total of $533,324 per civil penalty action, in the case of a person (except an individual serving as an airman) operating an aircraft for the transportation of passengers or property for compensation.

    Dated: March 26, 2018. Kirstjen M. Nielsen, Secretary.
    [FR Doc. 2018-06486 Filed 3-30-18; 8:45 am] BILLING CODE 9110-9P-P, 9111-14-P; 9111-28-P, 9110-04-P, 9110-05-P
    FEDERAL DEPOSIT INSURANCE CORPORATION 12 CFR Parts 326 and 391 RIN 3064-AE47 Removal of Transferred OTS Regulations Regarding Minimum Security Procedures Amendments to FDIC Regulations AGENCY:

    Federal Deposit Insurance Corporation.

    ACTION:

    Final rule.

    SUMMARY:

    The Federal Deposit Insurance Corporation (“FDIC”) is adopting a final rule to rescind and remove a part from the Code of Federal Regulations entitled “Security Procedures” and to amend FDIC regulations to make the removed Office of Thrift Supervision (“OTS”) regulations applicable to State savings associations.

    DATES:

    The final rule is effective on May 2, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Lauren Whitaker, Senior Attorney, Consumer Compliance Section, Legal Division (202) 898-3872; Karen Jones Currie, Senior Examination Specialist, Division of Risk Management and Supervision (202) 898-3981.

    SUPPLEMENTARY INFORMATION:

    Part 391, subpart A, was included in the regulations that were transferred to the FDIC from the Office of Thrift Supervision (“OTS”) on July 21, 2011, in connection with the implementation of applicable provisions of title III of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”).1 With the exception of one provision (§ 391.5) the requirements for State savings associations in part 391, subpart A, are substantively identical to the requirements in the FDIC's 12 CFR part 326 (“part 326”), which is entitled “Minimum Security Procedures.” The one exception directs savings associations to comply with appendix B to subpart B of Interagency Guidelines Establishing Information Security Standards (Interagency Guidelines) contained in FDIC rules at part 364, appendix B. The FDIC previously revised part 364 to make the Interagency Guidelines applicable to both State nonmember banks and State savings associations.2

    1 Dodd-Frank Wall Street Reform and Consumer Protection Act, Public Law 111-203, 124 Stat. 1376 (2010) (codified at 12 U.S.C. 5301 et seq.).

    2 80 FR 65907 (Oct. 28, 2015).

    The FDIC is adopting a final rule (“Final Rule”) to rescind in its entirety part 391, subpart A and to modify the scope of part 326 to include State savings associations to conform to and reflect the scope of the FDIC's current supervisory responsibilities as the appropriate Federal banking agency. The FDIC is also adding definitions of “FDIC-supervised insured depository institution or institution” and “State savings association.” Upon removal of part 391, subpart A, the Security Procedures, regulations applicable for all insured depository institutions for which the FDIC has been designated the appropriate Federal banking agency will be found at 12 CFR part 326.

    I. Background The Dodd-Frank Act

    The Dodd-Frank Act provided for a substantial reorganization of the regulation of State and Federal savings associations and their holding companies. Beginning July 21, 2011, the transfer date established by section 311 of the Dodd-Frank Act, codified at 12 U.S.C. 5411, the powers, duties, and functions formerly performed by the OTS were divided among the FDIC, as to State savings associations, the Office of the Comptroller of the Currency (“OCC”), as to Federal savings associations, and the Board of Governors of the Federal Reserve System (“FRB”), as to savings and loan holding companies. Section 316(b) of the Dodd-Frank Act, codified at 12 U.S.C. 5414(b), provides the manner of treatment for all orders, resolutions, determinations, regulations, and advisory materials that had been issued, made, prescribed, or allowed to become effective by the OTS. This section provides that if such materials were in effect on the day before the transfer date, they continue to be in effect and are enforceable by or against the appropriate successor agency until they are modified, terminated, set aside, or superseded in accordance with applicable law by such successor agency, by any court of competent jurisdiction, or by operation of law.

    Section 316(c) of the Dodd-Frank Act, codified at 12 U.S.C. 5414(c), further directed the FDIC and the OCC to consult with one another and to publish a list of the continued OTS regulations that would be enforced by the FDIC and the OCC, respectively. On June 14, 2011, the FDIC's Board of Directors approved a “List of OTS Regulations to be Enforced by the OCC and the FDIC Pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act.” This list was published by the FDIC and the OCC as a Joint Notice in the Federal Register on July 6, 2011.3

    3 76 FR 39247 (July 6, 2011).

    Although section 312(b)(2)(B)(i)(II) of the Dodd-Frank Act, codified at 12 U.S.C. 5412(b)(2)(B)(i)(II), granted the OCC rulemaking authority relating to both State and Federal savings associations, nothing in the Dodd-Frank Act affected the FDIC's existing authority to issue regulations under the FDI Act and other laws as the “appropriate Federal banking agency” or under similar statutory terminology. Section 312(c) of the Dodd-Frank Act amended the definition of “appropriate Federal banking agency” contained in section 3(q) of the FDI Act, 12 U.S.C. 1813(q), to add State savings associations to the list of entities for which the FDIC is designated as the “appropriate Federal banking agency.” As a result, when the FDIC acts as the designated “appropriate Federal banking agency” (or under similar terminology) for State savings associations, as it does here, the FDIC is authorized to issue, modify, and rescind regulations involving such associations, as well as for State nonmember banks and insured branches of foreign banks.

    As noted, on June 14, 2011, pursuant to this authority, the FDIC's Board of Directors reissued and redesignated certain transferring regulations of the former OTS. These transferred OTS regulations were published as new FDIC regulations in the Federal Register on August 5, 2011.4 When it republished the transferred OTS regulations as new FDIC regulations, the FDIC specifically noted that its staff would evaluate the transferred OTS rules, and might later recommend incorporating the transferred OTS regulations into other FDIC rules, amending them, or rescinding them as appropriate.

    4 76 FR 47652 (Aug. 5, 2011).

    One of the OTS rules transferred to the FDIC governed OTS oversight of minimum security devices and procedures for State savings associations. The OTS rule, formerly found at 12 CFR part 568, was transferred to the FDIC with only nominal changes, and is now found in the FDIC's rules at part 391, subpart A, entitled “Security Procedures.” Before the transfer of the OTS rules and continuing today, the FDIC's rules contained part 326, subpart A, entitled “Minimum Security Procedures,” a rule governing FDIC oversight of security devices and procedures to discourage burglaries, robberies, and larcenies, and assist law enforcement in the identification and apprehension of those who commit such crimes with respect to insured depository institutions for which the FDIC has been designated the appropriate Federal banking agency. One provision in part 391, subpart A, namely § 391.5, is not contained in part 326, subpart A. It directs savings associations and certain subsidiaries to comply with the Interagency Guidelines Establishing Information Security Standards, which were adopted jointly by the OTS and the FDIC and other banking agencies, and are contained in appendix B to part 364 in FDIC regulations.

    After careful review and comparison of part 391, subpart A, and part 326, the FDIC is adopting a Final Rule to rescind part 391, subpart A, because, as discussed below, it is substantively redundant to existing part 326, and simultaneously finalizes the technical conforming edits to the FDIC's existing rule.

    FDIC's Existing 12 CFR Part 326 and Former OTS's Part 568 (Transferred to FDIC's Part 391, Subpart A)

    Section 3 of the Bank Protection Act of 1968 directed the appropriate Federal banking agencies and the OTS' predecessor, the Federal Home Loan Bank Board (“FHLBB”), to establish minimum security standards for banks and savings associations, at reasonable cost, to serve as a deterrent to robberies, burglaries, and larcenies, and to assist law enforcement in identifying and prosecuting persons who commit such acts.5 In the initial rulemakings, the agencies consulted and cooperated with each other to promote a goal of uniformity where practicable. The initial minimum security rules were simultaneously issued in January 1969 and were substantively the same.6

    5 12 U.S.C. 1882.

    6 34 FR 618 (January 16, 1969); 34 FR 621 (January 16, 1969).

    In 1991, the minimum security rules were substantially revised to reduce unnecessary specificity, remove obsolete requirements, and place greater responsibility on the boards of directors of insured financial institutions for establishing and ensuring the implementation and maintenance of security programs and procedures. The former FHLBB rules at 12 CFR part 563a were redesignated as 12 CFR part 568 by the OTS. The OTS rules remained substantively the same as the FDIC's rules in part 326, subpart A.7

    7 56 FR 29565 (June 28, 1991); 56 FR 13579 (April 3, 1991).

    In 2001, the FDIC, other Federal banking agencies, and the OTS issued Interagency Guidelines for Safeguarding Customer Information pursuant to section 501 of the Gramm Leach Bliley Act (“Protection of Nonpublic Personal Information”).8 At the same time, the OTS added a provision at the end of its security procedures rules at section 568.5 directing saving associations and certain subsidiaries to comply with appendix B to the Interagency Guidelines. In a preamble footnote, the OTS indicated that the reason for the additional provision to its minimum security rules was “[b]ecause information security guidelines are similar to physical security procedures.” 9 In 2004, following enactment of the Fair and Accurate Credit Transactions Act (FACT Act), the OTS, FDIC, and other banking agencies revised the Interagency Guidelines for Safeguarding Customer Information and renamed them the Interagency Guidelines for Establishing Information Security Standards. The Interagency Guidelines were located in the FDIC rules at part 364. In 2015, the FDIC amended part 364 to, among other reasons, make it applicable to State savings associations.10 After careful comparison of the FDIC's part 326, subpart A, with the transferred OTS rule in part 391, subpart A, the FDIC has concluded that the transferred OTS rules governing minimum security procedures are substantively redundant. Based on the foregoing, the FDIC is adopting a Final Rule to rescind and remove from the Code of Federal Regulations the transferred OTS rules located at part 391, subpart A, and to make technical amendments to part 326, subpart A, to incorporate State savings associations.

    8 66 FR 8616 (Feb. 1, 2001).

    9Id. at footnote 2.

    10 80 FR 65903 (Oct. 28, 2015).

    II. The Proposed Rule

    Regarding the functions of the former OTS that were transferred to the FDIC, section 316(b)(3) of the Dodd-Frank Act, 12 U.S.C. 5414(b)(3), in pertinent part, provides that the former OTS's regulations will be enforceable by the FDIC until they are modified, terminated, set aside, or superseded in accordance with applicable law. After reviewing the rules currently found in part 391, subpart A, the FDIC issued a Notice of Proposed Rulemaking (“NPR” or “Proposed Rule”), which proposed to (1) rescind part 391, subpart A, in its entirety; (2) modify the scope of part 326, subpart A, to include State savings associations and their subsidiaries to conform to and reflect the scope of FDIC's current supervisory responsibilities as the appropriate Federal banking agency for State savings associations; (3) delete the definition of “insured nonmember bank” and replace it with a definition of “FDIC-supervised insured depository institution or institution,” which means “any State nonmember insured bank or State savings association for which the Federal Deposit Insurance Corporation is the appropriate Federal banking agency pursuant to section 3(q) of the Federal Deposit Insurance Act (12 U.S.C. 1813(q))”; (4) add a new subsection (i), which would define “State savings association” as having “the same meaning as in section 3(b)(3) of the Federal Deposit Insurance Act (12 U.S.C. 1813(b)(3))”; and (5) make conforming technical edits throughout, including replacing the term “bank” with “FDIC-supervised insured depository institution” or “institution”. Under the Proposed Rule, oversight of minimum security procedures in part 326, subpart A, would apply to all FDIC-supervised institutions, including State savings associations, and part 391, subpart A, would be removed because it is largely redundant of the rules found in part 326. Rescinding part 391, subpart A, will serve to streamline the FDIC's rules and eliminate unnecessary regulations.

    III. Comments

    The FDIC issued the NPR with a 60-day comment period, which closed on January 3, 2017. The FDIC received no comments on its Proposed Rule, and consequently the Final Rule is adopted as proposed without any changes.

    IV. Explanation of the Final Rule

    As discussed in the NPR, with the exception of one provision (§ 391.5), the requirements for State savings associations in part 391, subpart A, are substantively identical to the requirements in the FDIC's 12 CFR part 326 (“part 326”). The one exception directs savings associations to comply with appendix B to subpart B of Interagency Guidelines Establishing Information Security Standards (Interagency Guidelines) contained in FDIC rules at part 364, appendix B. The FDIC previously revised part 364 to make the Interagency Guidelines applicable to both State nonmember banks and State savings associations. The designation of part 326 as a single authority regarding security standards and procedures will serve to streamline the FDIC's rules and eliminate unnecessary regulations. To that effect, the Final Rule removes and rescinds 12 CFR part 391, subpart A, in its entirety.

    Consistent with the Proposed Rule, the Final Rule modifies the scope of part 326, subpart A, to include State savings associations and their subsidiaries to conform to and reflect the scope of FDIC's current supervisory responsibilities as the appropriate Federal banking agency for State savings associations. The Final Rule also deletes the definition of “insured nonmember bank” and replaces it with a definition of “FDIC-supervised insured depository institution or institution,” which means “any State nonmember insured bank or State savings association for which the Federal Deposit Insurance Corporation is the appropriate Federal banking agency pursuant to section 3(q) of the Federal Deposit Insurance Act (12 U.S.C. 1813(q)).” Additionally, the Final Rule adds a new subsection (i), which would define “State savings association” as having “the same meaning as in section 3(b)(3) of the Federal Deposit Insurance Act (12 U.S.C. 1813(b)(3)) and makes conforming technical edits throughout, including replacing the term “bank” with “FDIC-supervised insured depository institution” or “institution”.

    V. Regulatory Analysis and Procedure A. The Paperwork Reduction Act

    In accordance with the requirements of the Paperwork Reduction Act (“PRA”) of 1995, 44 U.S.C. 3501-3521, the FDIC may not conduct or sponsor, and the respondent is not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (“OMB”) control number.

    The Final Rule would rescind and remove part 391, subpart A, from the FDIC regulations. This rule was transferred with only nominal changes to the FDIC from the OTS when the OTS was abolished by title III of the Dodd-Frank Act. Part 391, subpart A, is substantively similar to the FDIC's existing part 326, subpart A, regarding oversight of minimum security procedures for depository institutions with the exception of one provision at the end of part 391, subpart A, which directs savings associations to comply with Interagency Guidelines, which are located in Appendix B to part 364. In 2015, the FDIC proposed and finalized revisions to part 364 that made part 364, including the Interagency Guidelines in Appendix B, applicable to State savings associations as well as State nonmember banks.

    The Final Rule also (1) amends part 326, subpart A to include State savings associations and their subsidiaries within its scope; (2) defines “FDIC-supervised insured depository institution or institution” and “State savings association”; and (3) makes conforming technical edits throughout. These measures clarify that State savings associations, as well as State nonmember banks, are subject to part 326, subpart A. With respect to part 326, subpart A, the Final Rule does not revise any existing, or create any new information collection pursuant to the PRA. Consequently, no submission has been made to the Office of Management and Budget for review.

    B. The Regulatory Flexibility Act

    The Regulatory Flexibility Act requires an agency to consider the impact that a final rule will have on small entities (defined in regulations promulgated by the Small Business Administration to include banking organizations with total assets of less than or equal to $550 million).11 However, a regulatory flexibility analysis is not required if the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities, and publishes its certification and a short explanatory Statement in the Federal Register together with the rule. For the reasons provided below, the FDIC certifies that the Final Rule would not have a significant economic impact on a substantial number of small entities.

    11 5 U.S.C. 601 et seq.

    As discussed in the NPR, part 391, subpart A, was transferred from OTS part 568, which governed minimum security procedures for depository institutions. The initial minimum security rules, though issued separately by the agencies, were all published in January 1969. The OTS rule, part 568, had been in effect since 1991 and all State savings associations were required to comply with it. Because it is substantially the same as existing part 326, subpart A of the FDIC's rules and therefore redundant, the FDIC is adopting a final rule to rescind and remove the transferred regulation now located in part 391, subpart A. As a result, all FDIC-supervised institutions—including State savings associations and their subsidiaries—would be required to comply with the minimum security procedures in part 326, subpart A. Because all State savings associations and their subsidiaries have been required to comply with nearly identical security procedures rules since 1969, the Final Rule would not place additional requirements or burdens on any State savings association irrespective of its size. Therefore, the Final Rule would not have a significant impact on a substantial number of small entities.

    C. Small Business Regulatory Enforcement Fairness Act

    The Office of Management and Budget has determined that the Final Rule is not a “major rule” within the meaning of the Small Business Regulatory Enforcement Fairness Act of 1996 (“SBREFA”), 5 U.S.C. 801 et seq. As required by SBREFA, the FDIC will submit the Final Rule and other appropriate reports to Congress and the Government Accountability Office for review.

    D. Plain Language

    Section 722 of the Gramm-Leach- Bliley Act, codified at 12 U.S.C. 4809, requires each Federal banking agency to use plain language in all of its proposed and final rules published after January 1, 2000. In the NPR, the FDIC invited comments on whether the Proposed Rule was clearly stated and effectively organized, and how the FDIC might make it easier to understand. Although the FDIC did not receive any comments, the FDIC sought to present the Final Rule in a simple and straightforward manner.

    D. The Economic Growth and Regulatory Paperwork Reduction Act

    Under section 2222 of the Economic Growth and Regulatory Paperwork Reduction Act of 1996 (“EGRPRA”), the FDIC is required to review all of its regulations, at least once every 10 years, in order to identify any outdated or otherwise unnecessary regulations imposed on insured institutions.12 The FDIC, along with the other Federal banking agencies, submitted a Joint Report to Congress on March 21, 2017 (“EGRPRA Report”) discussing how the review was conducted, what has been done to date to address regulatory burden, and further measures we will take to address issues that were identified.13 As noted in the EGRPRA Report, the FDIC is continuing to streamline and clarify its regulations through the OTS rule integration process. By removing outdated or unnecessary regulations, such as part 391, subpart A, and modifying the Minimum Security Procedures, this rule complements other actions the FDIC has taken, separately and with the other Federal banking agencies, to further the EGRPRA mandate.

    12 Public Law 104-208, 110 Stat. 3009 (1996).

    13 82 FR 15900 (March 31, 2017).

    E. Riegle Community Development and Regulatory Improvement Act of 1994

    The Riegle Community Development and Regulatory Improvement Act of 1994 (RCDRIA) requires the FDIC, in determining the effective date and administrative compliance requirements for new regulations that impose additional reporting, disclosure, or other requirements on insured depository institutions, consider, consistent with principles of safety and soundness and the public interest, any administrative burdens that such regulations would place on depository institutions, including small depository institutions, and customers of depository institutions, as well as the benefits of such regulations. In addition, new regulations and amendments to regulations that impose additional reporting, disclosures, or other new requirements on insured depository institutions generally must take effect on the first day of a calendar quarter that begins on or after the date on which the regulations are published in final form.14 The final rule includes no new reporting, disclosure, or other new requirements on insured depository institutions. Therefore, the final rule is not subject to the requirements of the statute.

    14 12 U.S.C. 4802.

    List of Subjects 12 CFR Part 326

    Banks, Banking, Minimum security procedures, Savings associations.

    12 CFR Part 391

    Security procedures.

    Authority and Issuance

    For the reasons stated in the preamble, the Board of Directors of the Federal Deposit Insurance Corporation amends 12 CFR parts 326 and 391 as follows:

    PART 326—MINIMUM SECURITY DEVICES AND PROCEDURES AND BANK SECRECY ACT 1 COMPLIANCE

    1 In its original form, subchapter II of chapter 53 of title 31, U.S.C. was part of Public Law 91-508 which requires recordkeeping for and reporting of currency transactions by banks and others and is commonly known as the Bank Secrecy Act.

    1. The authority citation for part 326 continues to read as follows: Authority:

    12 U.S.C. 1813, 1815, 1817, 1818, 1819 (Tenth), 1881-1883; 31 U.S.C. 5311-5314 and 5316-5332.2.

    2. Revise subpart A to read as follows: Subpart A—Minimum Security Procedures Sec. 326.0 Authority, purpose, and scope. 326.1 Definitions. 326.2 Designation of security officer. 326.3 Security program. 326.4 Reports.
    § 326.0 Authority, purpose, and scope.

    (a) This part is issued by the Federal Deposit Insurance Corporation (“FDIC”) pursuant to section 3 of the Bank Protection Act of 1968 (12 U.S.C. 1882). It applies to FDIC-supervised insured depository institutions. It requires each institution to adopt appropriate security procedures to discourage robberies, burglaries, and larcenies and to assist in identifying and apprehending persons who commit such acts.

    (b) It is the responsibility of the institution's board of directors to comply with this part and ensure that a written security program for the institution's main office and branches is developed and implemented.

    § 326.1 Definitions.

    For the purposes of this part—

    (a) The term FDIC-supervised insured depository institution or institution means any insured depository institution for which the Federal Deposit Insurance Corporation is the appropriate Federal banking agency pursuant to section 3(q)(2) of the Federal Deposit Insurance Act, 12 U.S.C. 1813(q)(2).

    (b) The term banking office includes any branch of an institution and, in the case of an FDIC-supervised insured depository institution; it includes the main office of that institution.

    (c) The term branch for an institution chartered under the laws of any state of the United States includes any branch institution, branch office, branch agency, additional office, or any branch place of business located in any state or territory of the United States, District of Columbia, Puerto Rico, Guam, American Samoa, the Trust Territory of the Pacific Islands, the Northern Mariana Islands or the Virgin Islands at which deposits are received or checks paid or money lent. In the case of a foreign bank defined in § 347.202 of this chapter, the term branch has the meaning given in § 347.202 of this chapter.

    (d) The term State savings association has the same meaning as in section (3)(b)(3) of the Federal Deposit Insurance Act, 12 U.S.C. 1813(b)(3).

    § 326.2 Designation of security officer.

    Upon the issuance of Federal deposit insurance, the board of directors of each institution shall designate a security officer who shall have the authority, subject to the approval of the board of directors, to develop, within a reasonable time, but no later than 180 days, and to administer a written security program for each banking office.

    § 326.3 Security program.

    (a) Contents of security program. The security program shall:

    (1) Establish procedures for opening and closing for business and for the safekeeping of all currency, negotiable securities, and similar valuables at all times;

    (2) Establish procedures that will assist in identifying persons committing crimes against the institution and that will preserve evidence that may aid in their identification and prosecution; such procedures may include, but are not limited to:

    (i) Retaining a record of any robbery, burglary, or larceny committed against the institution;

    (ii) Maintaining a camera that records activity in the banking office; and

    (iii) Using identification devices, such as prerecorded serial-numbered bills, or chemical and electronic devices;

    (3) Provide for initial and periodic training of officers and employees in their responsibilities under the security program and in proper employee conduct during and after a robbery, burglar or larceny; and

    (4) Provide for selecting, testing, operating and maintaining appropriate security devices, as specified in paragraph (b) of this section.

    (b) Security devices. Each institution shall have, at a minimum, the following security devices:

    (1) A means of protecting cash or other liquid assets, such as a vault, safe, or other secure space;

    (2) A lighting system for illuminating, during the hours of darkness, the area around the vault, if the vault is visible from outside the banking office;

    (3) An alarm system or other appropriate device for promptly notifying the nearest responsible law enforcement officers of an attempted or perpetrated robbery or burglary;

    (4) Tamper-resistant locks on exterior doors and exterior windows that may be opened; and

    (5) Such other devices as the security officer determines to be appropriate, taking into consideration:

    (i) The incidence of crimes against financial institutions in the area;

    (ii) The amount of currency or other valuables exposed to robbery, burglary, and larceny;

    (iii) The distance of the banking office from the nearest responsible law enforcement officers;

    (iv) The cost of the security devices;

    (v) Other security measures in effect at the banking office; and

    (vi) The physical characteristics of the structure of the banking office and its surroundings.

    § 326.4 Reports.

    The security officer for each institution shall report at least annually to the institution's board of directors on the implementation, administration, and effectiveness of the security program.

    PART 391—[REMOVED AND RESERVED] 3. Under the authority of 12 U.S.C. 1819(a) Tenth, part 391, consisting of subpart A, is removed and reserved. Dated at Washington, DC, on March 20, 2018.

    By order of the Board of Directors.

    Federal Deposit Insurance Corporation. Valerie J. Best, Assistant Executive Secretary.
    [FR Doc. 2018-06161 Filed 3-30-18; 8:45 am] BILLING CODE 6714-01-P
    FEDERAL DEPOSIT INSURANCE CORPORATION 12 CFR Parts 343 and 390 RIN 3064-AE49 Removal of Transferred OTS Regulations Regarding Consumer Protection in Sales of Insurance AGENCY:

    Federal Deposit Insurance Corporation.

    ACTION:

    Final rule.

    SUMMARY:

    The Federal Deposit Insurance Corporation (“FDIC”) is adopting a final rule to rescind and remove from the Code of Federal Regulations the part entitled “Consumer Protection in Sales of Insurance” and to amend current FDIC regulations to make them applicable to state savings associations.

    DATES:

    This final rule is effective on May 2, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Martha L. Ellett, Counsel, Legal Division, (202) 898-6765; John Jackwood, Senior Policy Analyst, Division of Depositor and Consumer Protection, (202) 898-3991.

    SUPPLEMENTARY INFORMATION:

    Part 390, subpart I was included in the regulations that were transferred to the FDIC from the Office of Thrift Supervision (“OTS”) on July 21, 2011, in connection with the implementation of applicable provisions of title III of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”). The requirements for State savings associations in part 390, subpart I are substantively similar to the requirements in the FDIC's 12 CFR part 343 (“part 343”) which is also entitled “Consumer Protection in Sales of Insurance.”

    The FDIC is adopting a final rule to rescind in its entirety part 390, subpart I and to modify the scope of part 343 to include State savings associations and their subsidiaries to conform to and reflect the scope of the FDIC's current supervisory responsibilities as the appropriate Federal banking agency. The final rule also defines “FDIC-supervised insured depository institution or institution” and “State savings association.” In the final rule, the FDIC also transfers an anticoercion and antitying provision from part 390, subpart I that is applicable to State savings associations.

    Upon removal of part 390, subpart I, the Consumer Protection in Sales of Insurance regulations applicable for all insured depository institutions for which the FDIC has been designated the appropriate Federal banking agency will be found at 12 CFR part 343.

    I. Background The Dodd-Frank Act

    The Dodd-Frank Act 1 provided for a substantial reorganization of the regulation of State and Federal savings associations and their holding companies. Beginning July 21, 2011, the transfer date established by section 311 of the Dodd-Frank Act, codified at 12 U.S.C. 5411, the powers, duties, and functions formerly performed by the OTS were divided among the FDIC, as to State savings associations, the Office of the Comptroller of the Currency (“OCC”), as to Federal savings associations, and the Board of Governors of the Federal Reserve System (“FRB”), as to savings and loan holding companies. Section 316(b) of the Dodd-Frank Act, codified at 12 U.S.C. 5414(b), provides the manner of treatment for all orders, resolutions, determinations, regulations, and advisory materials that had been issued, made, prescribed, or allowed to become effective by the OTS. This section provides that if such materials were in effect on the day before the transfer date, they continue to be in effect and are enforceable by or against the appropriate successor agency until they are modified, terminated, set aside, or superseded in accordance with applicable law by such successor agency, by any court of competent jurisdiction, or by operation of law.

    1 Dodd-Frank Wall Street Reform and Consumer Protection Act, Public Law 111-203, 124 Stat. 1376 (2010) (codified at 12 U.S.C. 5301 et seq.).

    Section 316(c) of the Dodd-Frank Act, codified at 12 U.S.C. 5414(c), further directed the FDIC and the OCC to consult with one another and to publish a list of the continued OTS regulations that would be enforced by the FDIC and the OCC, respectively. On June 14, 2011, the FDIC's Board of Directors approved a “List of OTS Regulations to be enforced by the OCC and the FDIC Pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act.” This list was published by the FDIC and the OCC as a Joint Notice in the Federal Register on July 6, 2011.2

    2 76 FR 39247 (July 6, 2011).

    Although section 312(b)(2)(B)(i)(II) of the Dodd-Frank Act, codified at 12 U.S.C. 5412(b)(2)(B)(i)(II), granted the OCC rulemaking authority relating to both State and Federal savings associations, nothing in the Dodd-Frank Act affected the FDIC's existing authority to issue regulations under the Federal Deposit Insurance Act (“FDI Act”) and other laws as the “Appropriate Federal Banking Agency” or under similar statutory terminology. Section 312(c) of the Dodd-Frank Act amended the definition of “Appropriate Federal Banking Agency” contained in section 3(q) of the FDI Act, 12 U.S.C. 1813(q), to add State savings associations to the list of entities for which the FDIC is designated as the “appropriate Federal banking agency.” As a result, when the FDIC acts as the designated “Appropriate Federal Banking Agency” (or under similar terminology) for State savings associations, as it does here, the FDIC is authorized to issue, modify and rescind regulations involving such associations, as well as for State nonmember banks and insured branches of foreign banks.

    As noted, on June 14, 2011, pursuant to this authority, the FDIC's Board of Directors reissued and redesignated certain transferring regulations of the former OTS. These transferred OTS regulations were published as new FDIC regulations in the Federal Register on August 5, 2011.3 When it republished the transferred OTS regulations as new FDIC regulations, the FDIC specifically noted that its staff would evaluate the transferred OTS rules and might later recommend incorporating the transferred OTS regulations into other FDIC rules, amending them, or rescinding them, as appropriate.

    3 76 FR 47652 (Aug. 5, 2011).

    One of the OTS rules transferred to the FDIC governed OTS oversight of consumer protections for depository institution sales of insurance. The OTS rule, formerly found at 12 CFR part 536, was transferred to the FDIC with only nominal changes and is now found in the FDIC's rules at part 390, subpart I, entitled “Consumer Protection in Sales of Insurance.” Before the transfer of the OTS rules and continuing today, the FDIC's rules contained part 343, entitled “Consumer Protection in Sales of Insurance,” a rule governing FDIC oversight of consumer protection regulations that apply to retail sales practices, solicitations, advertising, or offers of any insurance product with respect to insured depository institutions for which the FDIC has been designated the appropriate Federal banking agency.

    After careful review and comparison of part 390, subpart I, and part 343, the FDIC is adopting a final rule to rescind part 390, subpart I, because, as discussed below, it is substantively redundant to existing part 343 and simultaneously finalize technical conforming edits to the existing rule.

    FDIC's Existing 12 CFR Part 343 and Former OTS's Part 536 (Transferred, in Part, to FDIC's Part 390, Subpart I)

    Section 305 of the Gramm-Leach-Bliley Act (“GLB Act”) 4 added section 47 to the FDI Act,5 entitled “Insurance Consumer Protections.” Section 47 applies to retail sales practices, solicitations, advertising, or offers of insurance products by depository institutions 6 or persons engaged in these activities at an office of the institution or on behalf of the institution.7 Section 47 directs the FDIC, the OTS, the OCC, and the FRB (collectively the “Federal banking agencies”) to include provisions specifically relating to sales practices, disclosures and advertising, the physical separation of banking and nonbanking activities, and domestic violence discrimination.8 On December 4, 2000, pursuant to section 305 of the GLB Act,9 the Federal banking agencies published a joint final rule 10 to implement consumer protection in sales of insurance provisions of section 47 of the FDI Act.

    4 Gramm-Leach-Bliley Act, Public Law 106-102, 113 Stat. 1338 (1999).

    5 12 U.S.C. 1831x.

    6 A “depository institution” in this context means a national bank in the case of institutions supervised by the OCC, a State member bank in the case of the FRB, a State nonmember bank in the case of the FDIC, and a savings association in the case of the OTS. 65 FR 75822 fn. 1 (Dec. 4, 2000).

    7 12 U.S.C. 1831x(a)(1)(A).

    8 12 U.S.C. 1831x.

    9 12 U.S.C. 1831x(a)(3).

    10 65 FR 75822 (Dec. 4, 2000).

    Section 47 of the FDI Act instructs the Federal banking agencies to consult and coordinate with one another and prescribe and publish joint consumer protection regulations that apply to retail sales practices, solicitations, advertising, or offers of insurance products by depository institutions or persons engaged in these activities at an office of the institution or on behalf of the institution.11 Section 47 also requires the Federal banking agencies to consult with the State insurance regulators, as appropriate.12 Pursuant to Section 47, the Federal banking agencies consulted and coordinated with respect to this rulemaking and on an interagency basis jointly issued rules that are substantively identical with regard to consumer protection in sales of insurance requirements,13 including the same definition of a “covered person” or “you.” 14

    11 12 U.S.C. 1831x(a)(1).

    12 12 U.S.C. 1831x(a)(3).

    13 65 FR 75822 (Dec. 4, 2000).

    14 65 FR 75822, 75824 (Dec. 4, 2000). A “covered person” or “you” means “any depository institution or any other person selling, soliciting, advertising, or offering insurance products or annuities to a consumer at an office of the institution or on behalf of the institution. A `covered person' includes any person, including a subsidiary or other affiliate, if that person or one of its employees sells, solicits, advertises, or offers insurance products or annuities at an office of an institution or on behalf of an institution. 65 FR 75824 (Dec. 4, 2000). See also 12 CFR 343.20(j)(1) and 12 CFR 390.181.

    The scope of part 343 in the FDIC's regulations and of part 390, subpart I in the OTS's regulations is substantively similar. The FDIC regulations apply to any bank 15 or any other person that is engaged in such activities at an office of the bank or on behalf of the bank.16 Similarly, the OTS regulations apply to any State savings association or any other person that is engaged in such activities at an office of a State savings association or on behalf of a State savings association.17 In the FDIC's scope provisions, any other person includes subsidiaries 18 because only subsidiaries that are selling insurance products or annuities at an office of the institution or acting on behalf of the depository institution as defined in the rules would be subject to the requirements of the rules.19 The OTS regulation specifically states that its regulation applies to subsidiaries of a State savings association only to the extent that it sells, solicits, advertises, or offers insurance products or annuities at an office of a State savings association or on behalf of a State savings association.20 This OTS provision will not be carried over to the FDIC's part 343 because it is redundant and unnecessary, since the FDIC scope provision already includes subsidiaries within its definition.21 The rule specifically states that a covered person (or you) includes any person including a subsidiary or other affiliate if that person or one of its employees sells, solicits, advertises, or offers insurance products or annuities at an office of an institution or on behalf of an institution.22

    15 Bank means an FDIC-insured, state-chartered commercial or savings bank that is not a member of the Federal Reserve System and for which the FDIC is the appropriate federal banking agency pursuant to section 3(q) of the Federal Deposit Insurance Act (12 U.S.C. 1813(q)). 12 CFR 343.20(b).

    16 12 CFR 343.10.

    17 12 CFR 390.180(a)(1), (2).

    18See 65 FR 75822, 75823 (Dec. 4, 2000).

    19 65 FR 75822, 75823 (Dec. 4, 2000) (footnote omitted).

    20 12 CFR 390.180(b).

    21 12 CFR 343.10.

    22 65 FR 75822, 75824 (Dec. 4, 2000) (italics added).

    Accordingly, the portions of the OTS regulations that applied to State savings associations, their subsidiaries and their affiliates, originally codified at 12 CFR part 536 and subsequently transferred to FDIC's part 390, subpart I, are substantively similar to the current FDIC regulations codified at 12 CFR part 343. By amending part 343 to encompass State savings associations and rescinding part 390, subpart I, the FDIC will streamline its regulations and reduce redundancy.

    Although the former OTS rule and part 390, subpart I, covers savings and loan holding companies that are affiliated with savings associations in addition to savings associations, the FDIC does not supervise savings and loan or bank holding companies for purposes of this rule. Section 312 of the Dodd-Frank Act 23 divides and transfers the functions of the former OTS to the FDIC, OCC, and FRB by amending section 1813(q) of the FDI Act. Specifically, section 312 transfers the former OTS's power to regulate State savings associations to the FDIC, while it transfers the power to regulate savings and loan holding companies to the FRB.24 As a result, whereas the former OTS part 536 applied to savings associations, their subsidiaries and their affiliates, including savings and loan holding companies,25 upon transfer of part 536 to FDIC's part 390, subpart I, only the authority over State savings associations and their subsidiaries and other affiliates was transferred to the FDIC for purposes of this rule.26 The FRB currently has jurisdiction over the regulation and supervision of consumer protections in connection with retail insurance sales practices as it applies to affiliates, including savings and loan holding companies of State savings associations.27 For this reason, the existing references to affiliates in part 390, subpart I, are not transferred to part 343 of the FDIC rules.

    23 Dodd-Frank Wall Street Reform and Consumer Protection Act, Public Law 111-203, 124 Stat. 1376 (2010) (codified at 12 U.S.C. 5412).

    24 12 U.S.C. 5412.

    25 12 CFR 536.1.

    26 12 CFR 390.180.

    27 12 CFR part 208, subpart H.

    After careful comparison of the FDIC's part 343 with the transferred OTS rule in part 390, subpart I, the FDIC has concluded that the transferred OTS rules governing consumer protection in sales of insurance are substantively redundant. Based on the foregoing, the FDIC is adopting a final rule to rescind and remove from the Code of Federal Regulations the transferred OTS rules located at part 390, subpart I, and to make technical and conforming changes to part 343 to incorporate State savings associations.

    II. Proposed Rule

    The functions of the former OTS that were transferred to the FDIC, section 316(b)(3) of the Dodd-Frank Act, 12 U.S.C. 5414(b)(3), in pertinent part, provide that the former OTS's regulations will be enforceable by the FDIC until they are modified, terminated, set aside, or superseded in accordance with applicable law. After reviewing the rules currently found in part 390, subpart I, on November 15, 2016 the FDIC published a Notice of Proposed Rulemaking (“NPR” or “Proposed Rule”) to (1) rescind part 390, subpart I, in its entirety; (2) modify to the scope of part 343 to include State savings associations and their subsidiaries to conform to and reflect the scope of FDIC's current supervisory responsibilities as the appropriate Federal banking agency for State savings associations; (3) delete the definition of “bank” and replace it with a definition of “FDIC-supervised insured depository institution or institution”, which means “any State nonmember insured bank or State savings association for which the Federal Deposit Insurance Corporation is the appropriate Federal banking agency pursuant to section 3(q) of the Federal Deposit Insurance Act (12 U.S.C. 1813(q));” (4) add a new subsection (i), which would define “State savings association” as having “the same meaning as in section 3(b)(3) of the Federal Deposit Insurance Act (12 U.S.C. 1813(b)(3));” (5) transfer an anticoercion and antitying provision from part 390, subpart I that is applicable to State savings associations to part 343; and (6) make conforming technical edits throughout, including replacing the term “institution” in place of “bank” throughout the rule where necessary.

    Under the NPR, oversight of consumer protection in sales of insurance in part 343 would apply to all FDIC-supervised institutions, including State savings associations, and part 390, subpart I, would be removed because it is largely redundant of the rules found in part 343. Rescinding part 390, subpart I, would serve to streamline the FDIC's rules and eliminate unnecessary regulations.

    III. Comments

    The FDIC issued the NPR with a 60-day comment period which closed on January 20, 2017. The FDIC received no comments on its Proposed Rule. The final rule (“Final Rule”) is adopted as proposed without changes.

    IV. Explanation of the Final Rule

    As discussed in the NPR, part 390, subpart I is substantively the same as the requirements in part 343 and therefore is redundant. The Final Rule removes and rescinds 12 CFR part 390, subpart I in its entirety. This will serve to streamline the FDIC's rules and eliminate unnecessary regulation.

    Consistent with the Proposed Rule, the Final Rule also amends the scope of part 343 to include State savings associations and their subsidiaries. The modified scope conforms to and reflects the scope of FDIC's current supervisory responsibilities as the appropriate Federal banking agency for State savings associations. The Final Rule also deletes the definition of “bank” and replaces it with a definition of “FDIC-supervised insured depository institution or institution” defined as “any State nonmember insured bank or State savings association for which the Federal Deposit Insurance Corporation is the appropriate Federal banking agency pursuant to section 3(q) of the Federal Deposit Insurance Act (12 U.S.C. 1813(q)).” As in the Proposed Rule, the Final Rule adds a new subsection (i), which would define “State savings association” as “having the same meaning as in section 3(b)(3) of the Federal Deposit Insurance Act (12 U.S.C. 1813(b)(3)).” The Final Rule, as the NPR, transfers an anticoercion and antitying provision that is applicable to State savings associations from part 390, subpart I, to part 343. As in the Proposed Rule, the Final Rule also makes conforming technical edits throughout, including using the term “institution” in place of “bank” throughout the rule where necessary.

    V. Regulatory Process A. The Paperwork Reduction Act

    In accordance with the requirements of the Paperwork Reduction Act (“PRA”) of 1995, 44 U.S.C. 3501-3521, the FDIC may not conduct or sponsor, and the respondent is not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (“OMB”) control number.

    The Final Rule would rescind and remove from the FDIC regulations part 390, subpart I. Part 390, subpart I was transferred with only nominal changes to the FDIC from the OTS when the OTS was abolished by title III of the Dodd-Frank Act and is substantively similar to the FDIC's existing part 343 regarding consumer protection in the sales of insurance by depository institutions. The information collections contained in part 343 are cleared by OMB under the FDIC's Insurance Sales Consumer Protections information collection (OMB Control No. 3064-0140). The FDIC reviewed its burden estimates for the collection at the time it assumed responsibility for supervision of State savings associations transferred from the OTS and determined that no changes to the burden estimates were necessary. The Final Rule would not revise the Insurance Sales Consumer Protections information collection under OMB Control No. 3064-0140 or create any new information collection pursuant to the PRA. Consequently, no submission will be made to the Office of Management and Budget for review. In the Proposed Rule, the FDIC requested comment on its conclusion that the NPR did not revise the Insurance Sales Consumer Protections information collection 3064-0140. No comments were received.

    The Final Rule, as the Proposed Rule, (1) amends part 343 to include State savings associations and their subsidiaries within its scope; and (2) defines “FDIC-supervised insured depository institution or institution” and “State savings association;” (3) transfers an anticoercion and antitying provision from part 390, subpart I, that is applicable to State savings associations to part 343; and (4) makes conforming technical edits throughout. These measures clarify that State savings associations, as well as State nonmember banks, are subject to part 343. With respect to part 343, the Final Rule does not revise any existing, or create any new information collection pursuant to the PRA. Consequently, no submission will be made to the Office of Management and Budget for review. The FDIC requested comment on its conclusion that this aspect of the NPR did not create a new or revise and existing information collection. No comments on this issue were received.

    B. The Regulatory Flexibility Act

    The Regulatory Flexibility Act (“RFA”), requires that, in connection with a final rulemaking, an agency prepare and make available for public comment a final regulatory flexibility analysis that describes the impact of the proposed rule on small entities (defined in regulations promulgated by the Small Business Administration to include banking organizations with total assets of less than or equal to $550 million).28 However, a regulatory flexibility analysis is not required if the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities, and publishes its certification and a short explanatory statement in the Federal Register together with the rule. For the reasons provided below, the FDIC certifies that the Final Rule would not have a significant economic impact on a substantial number of small entities.

    28 5 U.S.C. 601 et seq.

    As discussed in the NPR, Part 390, subpart I, was transferred to the FDIC from OTS part 536, which governed consumer protections for depository institution sales of insurance. OTS part 536 had been in effect since 2001 and all State savings associations were required to comply with it. Because it is substantially the same as existing part 343 of the FDIC's rules and therefore redundant, the FDIC is rescinding and removing the transferred regulation now located in part 390, subpart I, as proposed in the NPR. As a result, all FDIC-supervised institutions—including State savings associations and their subsidiaries—would be required to comply with part 343 if they are selling, soliciting, advertising, or offering any insurance product. Because all State savings associations and their subsidiaries have been required to comply with substantially similar consumer protection rules if they engaged in sales of insurance since 2001,29 the Final Rule would not place additional requirements or burdens on any State savings association irrespective of its size. Therefore, the Final Rule would not have a significant impact on a substantial number of small entities.

    29 65 FR 75822 (Dec. 4, 2000). The final rule became effective April 1, 2001.

    C. Small Business Regulatory Enforcement Fairness Act

    The OMB has determined that the Final Rule is not a “major rule” within the meaning of the Small Business Regulatory Enforcement Fairness Act of 1996 (“SBREFA”), 5 U.S.C. 801 et seq. As required by SBREFA, the FDIC will submit the Final Rule and other appropriate reports to Congress and the Government Accountability Office for review.

    D. Plain Language

    Section 722 of the GLB Act, codified at 12 U.S.C. 4809, requires each Federal banking agency to use plain language in all of its proposed and final rules published after January 1, 2000. In the NPR, the FDIC invited comments on whether the NPR was clearly stated and effectively organized, and how the FDIC might make it easier to understand. No comments on this issue were received. Although the FDIC did not receive any comments, the FDIC sought to present the Final Rule in a simple and straightforward manner.

    E. The Economic Growth and Regulatory Paperwork Reduction Act

    Under section 2222 of the Economic Growth and Regulatory Paperwork Reduction Act of 1996 (“EGRPRA”), the FDIC is required to review all of its regulations, at least once every 10 years, in order to identify any outdated or otherwise unnecessary regulations imposed on insured institutions.30 The FDIC, along with the other federal banking agencies, submitted a Joint Report to Congress on March 21, 2017 (“EGRPRA Report”) discussing how the review was conducted, what has been done to date to address regulatory burden, and further measures we will take to address issues that were identified. As noted in the EGRPRA Report, the FDIC is continuing to streamline and clarify its regulations through the OTS rule integration process. By removing outdated or unnecessary regulations, such as part 390, subpart I, and modifying part 343, this rule complements other actions the FDIC has taken, separately and with the other federal banking agencies, to further the EGRPRA mandate.

    30 Public Law 104-208, 110 Stat. 3009 (1996).

    E. Riegle Community Development and Regulatory Improvement Act of 1994

    The Riegle Community Development and Regulatory Improvement Act of 1994 (RCDRIA) requires the FDIC, in determining the effective date and administrative compliance requirements for new regulations that impose additional reporting, disclosure or other requirements on insured depository institutions to consider, consistent with the principles of safety and soundness and the public interest, any administrative burdens that such regulations would place on depository institutions, including small depository institutions, as well as the benefits of such regulations.

    In addition, new regulations and amendments to regulations that impose additional reporting, disclosures or other new requirements on insured depository institutions generally must take effect on the first day of the calendar quarter that begins on or after the date on which the regulations are published in final form.31 The Final Rule has no new reporting or other new requirements on insured depository institutions. Therefore, the final rule is not subject to the requirements of the statute.

    31 12 U.S.C. 4802.

    List of Subjects 12 CFR Part 343

    Banks, banking; Consumer protection in sales of insurance; Savings associations.

    12 CFR Part 390

    Consumer protection in sales of insurance.

    Authority and Issuance

    For the reasons stated in the preamble, the Board of Directors of the Federal Deposit Insurance Corporation is amending 12 CFR parts 343 and 390 as follows:

    1. Revise part 343 to read as follows: PART 343—CONSUMER PROTECTION IN SALES OF INSURANCE Sec. 343.10 Purpose and scope. 343.20 Definitions. 343.30 Prohibited practices. 343.40 What you must disclose. 343.50 Where insurance activities may take place. 343.60 Qualification and licensing requirements for insurance sales personnel. Appendix A to Part 343—Consumer Grievance Process Authority:

    12 U.S.C. 1819 (Seventh and Tenth); 12 U.S.C. 1831x.

    § 343.10 Purpose and scope.

    This part establishes consumer protections in connection with retail sales practices, solicitations, advertising, or offers of any insurance product or annuity to a consumer by:

    (a) Any institution; or

    (b) Any other person that is engaged in such activities at an office of the institution or on behalf of the institution.

    § 343.20 Definitions.

    As used in this part:

    Affiliate means a company that controls, is controlled by, or is under common control with another company.

    Company means any corporation, partnership, business trust, association or similar organization, or any other trust (unless by its terms the trust must terminate within twenty-five years or not later than twenty-one years and ten months after the death of individuals living on the effective date of the trust). It does not include any corporation the majority of the shares of which are owned by the United States or by any State, or a qualified family partnership, as defined in section 2(o)(10) of the Bank Holding Company Act of 1956, as amended (12 U.S.C. 1841(o)(10)).

    Consumer means an individual who purchases, applies to purchase, or is solicited to purchase from you insurance products or annuities primarily for personal, family, or household purposes.

    Control of a company has the same meaning as in section 3(w)(5) of the Federal Deposit Insurance Act (12 U.S.C. 1813(w)(5)).

    Domestic violence means the occurrence of one or more of the following acts by a current or former family member, household member, intimate partner, or caretaker:

    (1) Attempting to cause or causing or threatening another person physical harm, severe emotional distress, psychological trauma, rape, or sexual assault;

    (2) Engaging in a course of conduct or repeatedly committing acts toward another person, including following the person without proper authority, under circumstances that place the person in reasonable fear of bodily injury or physical harm;

    (3) Subjecting another person to false imprisonment; or

    (4) Attempting to cause or causing damage to property so as to intimidate or attempt to control the behavior of another person.

    Electronic media includes any means for transmitting messages electronically between you and a consumer in a format that allows visual text to be displayed on equipment, for example, a personal computer monitor.

    FDIC-supervised insured depository institution or institution means any State nonmember insured bank or State savings association for which the Federal Deposit Insurance Corporation is the appropriate Federal banking agency pursuant to section 3(q) of the Federal Deposit Insurance Act (12 U.S.C. 1813(q)).

    Office means the premises of an institution where retail deposits are accepted from the public.

    State savings association has the same meaning as in section (3)(b)(3) of the Federal Deposit Insurance Act, 12 U.S.C. 1813(b)(3).

    Subsidiary has the same meaning as in section 3(w)(4) of the Federal Deposit Insurance Act (12 U.S.C. 1813(w)(4)).

    You—(1) Means:

    (i) An institution; or

    (ii) Any other person only when the person sells, solicits, advertises, or offers an insurance product or annuity to a consumer at an office of the institution or on behalf of an institution.

    (2) For purposes of this definition, activities on behalf of an institution include activities where a person, whether at an office of the institution or at another location sells, solicits, advertises, or offers an insurance product or annuity and at least one of the following applies:

    (i) The person represents to a consumer that the sale, solicitation, advertisement, or offer of any insurance product or annuity is by or on behalf of the institution;

    (ii) The institution refers a consumer to a seller of insurance products or annuities and the institution has a contractual arrangement to receive commissions or fees derived from a sale of an insurance product or annuity resulting from that referral; or

    (iii) Documents evidencing the sale, solicitation, advertising, or offer of an insurance product or annuity identify or refer to the institution.

    § 343.30 Prohibited practices.

    (a) Anticoercion and antitying rules. You may not engage in any practice that would lead a consumer to believe that an extension of credit, in violation of section 106(b) of the Bank Holding Company Act Amendments of 1970 (12 U.S.C. 1972) in the case of a State nonmember insured bank and a foreign bank having an insured branch, or in violation of section 5(q) of the Home Owners' Loan Act (12 U.S.C. 1464(q)) in the case of a State savings association, is conditional upon either:

    (1) The purchase of an insurance product or annuity from the institution or any of its affiliates; or

    (2) An agreement by the consumer not to obtain, or a prohibition on the consumer from obtaining, an insurance product or annuity from an unaffiliated entity.

    (b) Prohibition on misrepresentations generally. You may not engage in any practice or use any advertisement at any office of, or on behalf of, the institution or a subsidiary of the institution that could mislead any person or otherwise cause a reasonable person to reach an erroneous belief with respect to:

    (1) The fact that an insurance product or annuity sold or offered for sale by you or any subsidiary of the institution is not backed by the Federal government or the institution, or the fact that the insurance product or annuity is not insured by the Federal Deposit Insurance Corporation;

    (2) In the case of an insurance product or annuity that involves investment risk, the fact that there is an investment risk, including the potential that principal may be lost and that the product may decline in value; or

    (3) In the case of an institution or subsidiary of the institution at which insurance products or annuities are sold or offered for sale, the fact that:

    (i) The approval of an extension of credit to a consumer by the institution or subsidiary may not be conditioned on the purchase of an insurance product or annuity by the consumer from the institution or a subsidiary of the institution; and

    (ii) The consumer is free to purchase the insurance product or annuity from another source.

    (c) Prohibition on domestic violence discrimination. You may not sell or offer for sale, as principal, agent, or broker, any life or health insurance product if the status of the applicant or insured as a victim of domestic violence or as a provider of services to victims of domestic violence is considered as a criterion in any decision with regard to insurance underwriting, pricing, renewal, or scope of coverage of such product, or with regard to the payment of insurance claims on such product, except as required or expressly permitted under State law.

    § 343.40 What you must disclose.

    (a) Insurance disclosures. In connection with the initial purchase of an insurance product or annuity by a consumer from you, you must disclose to the consumer, except to the extent the disclosure would not be accurate, that:

    (1) The insurance product or annuity is not a deposit or other obligation of, or guaranteed by, the institution or an affiliate of the institution;

    (2) The insurance product or annuity is not insured by the Federal Deposit Insurance Corporation (FDIC) or any other agency of the United States, the institution, or (if applicable) an affiliate of the institution; and

    (3) In the case of an insurance product or annuity that involves an investment risk, there is investment risk associated with the product, including the possible loss of value.

    (b) Credit disclosure. In the case of an application for credit in connection with which an insurance product or annuity is solicited, offered, or sold, you must disclose that the institution may not condition an extension of credit on either:

    (1) The consumer's purchase of an insurance product or annuity from the institution or any of its affiliates; or

    (2) The consumer's agreement not to obtain, or a prohibition on the consumer from obtaining, an insurance product or annuity from an unaffiliated entity.

    (c) Timing and method of disclosures—(1) In general. The disclosures required by paragraph (a) of this section must be provided orally and in writing before the completion of the initial sale of an insurance product or annuity to a consumer. The disclosure required by paragraph (b) of this section must be made orally and in writing at the time the consumer applies for an extension of credit in connection with which an insurance product or annuity is solicited, offered, or sold.

    (2) Exception for transactions by mail. If a sale of an insurance product or annuity is conducted by mail, you are not required to make the oral disclosures required by paragraph (a) of this section. If you take an application for credit by mail, you are not required to make the oral disclosure required by paragraph (b) of this section.

    (3) Exception for transactions by telephone. If a sale of an insurance product or annuity is conducted by telephone, you may provide the written disclosures required by paragraph (a) of this section by mail within 3 business days beginning on the first business day after the sale, excluding Sundays and the legal public holidays specified in 5 U.S.C. 6103(a). If you take an application for credit by telephone, you may provide the written disclosure required by paragraph (b) of this section by mail, provided you mail it to the consumer within three days beginning the first business day after the application is taken, excluding Sundays and the legal public holidays specified in 5 U.S.C. 6103(a).

    (4) Electronic form of disclosures. (i) Subject to the requirements of section 101(c) of the Electronic Signatures in Global and National Commerce Act (12 U.S.C. 7001(c)), you may provide the written disclosures required by paragraph (a) and (b) of this section through electronic media instead of on paper, if the consumer affirmatively consents to receiving the disclosures electronically and if the disclosures are provided in a format that the consumer may retain or obtain later, for example, by printing or storing electronically (such as by downloading).

    (ii) Any disclosure required by paragraph (a) or (b) of this section that is provided by electronic media is not required to be provided orally.

    (5) Disclosures must be readily understandable. The disclosures provided shall be conspicuous, simple, direct, readily understandable, and designed to call attention to the nature and significance of the information provided. For instance, you may use the following disclosures in visual media, such as television broadcasting, ATM screens, billboards, signs, posters and written advertisements and promotional materials, as appropriate and consistent with paragraphs (a) and (b) of this section:

    (i) “NOT A DEPOSIT”

    (ii) “NOT FDIC-INSURED”

    (iii) “NOT INSURED BY ANY FEDERAL GOVERNMENT AGENCY”

    (iv) “NOT GUARANTEED BY THE INSTITUTION”

    (v) “MAY GO DOWN IN VALUE”

    (6) Disclosures must be meaningful. (i) You must provide the disclosures required by paragraphs (a) and (b) of this section in a meaningful form. Examples of the types of methods that could call attention to the nature and significance of the information provided include:

    (A) A plain-language heading to call attention to the disclosures;

    (B) A typeface and type size that are easy to read;

    (C) Wide margins and ample line spacing;

    (D) Boldface or italics for key words; and

    (E) Distinctive type size, style, and graphic devices, such as shading or sidebars, when the disclosures are combined with other information.

    (ii) You have not provided the disclosures in a meaningful form if you merely state to the consumer that the required disclosures are available in printed material, but do not provide the printed material when required and do not orally disclose the information to the consumer when required.

    (iii) With respect to those disclosures made through electronic media for which paper or oral disclosures are not required, the disclosures are not meaningfully provided if the consumer may bypass the visual text of the disclosures before purchasing an insurance product or annuity.

    (7) Consumer acknowledgment. You must obtain from the consumer, at the time a consumer receives the disclosures required under paragraph (a) or (b) of this section, or at the time of the initial purchase by the consumer of an insurance product or annuity, a written acknowledgment by the consumer that the consumer received the disclosures. You may permit a consumer to acknowledge receipt of the disclosures electronically or in paper form. If the disclosures required under paragraph (a) or (b) of this section are provided in connection with a transaction that is conducted by telephone, you must:

    (i) Obtain an oral acknowledgment of receipt of the disclosures and maintain sufficient documentation to show that the acknowledgment was given; and

    (ii) Make reasonable efforts to obtain a written acknowledgment from the consumer.

    (d) Advertisements and other promotional material for insurance products or annuities. The disclosures described in paragraph (a) of this section are required in advertisements and promotional material for insurance products or annuities unless the advertisements and promotional materials are of a general nature describing or listing the services or products offered by the institution.

    § 343.50 Where insurance activities may take place.

    (a) General rule. An institution must, to the extent practicable, keep the area where the institution conducts transactions involving insurance products or annuities physically segregated from areas where retail deposits are routinely accepted from the general public, identify the areas where insurance product or annuity sales activities occur, and clearly delineate and distinguish those areas from the areas where the institution's retail deposit-taking activities occur.

    (b) Referrals. Any person who accepts deposits from the public in an area where such transactions are routinely conducted in the institution may refer a consumer who seeks to purchase an insurance product or annuity to a qualified person who sells that product only if the person making the referral receives no more than a one-time, nominal fee of a fixed dollar amount for each referral that does not depend on whether the referral results in a transaction.

    § 343.60 Qualification and licensing requirements for insurance sales personnel.

    An institution may not permit any person to sell or offer for sale any insurance product or annuity in any part of its office or on its behalf, unless the person is at all times appropriately qualified and licensed under applicable State insurance licensing standards with regard to the specific products being sold or recommended.

    Appendix A to Part 343—Consumer Grievance Process

    Any consumer who believes that any institution or any other person selling, soliciting, advertising, or offering insurance products or annuities to the consumer at an office of the institution or on behalf of the institution has violated the requirements of this part should contact the Division of Depositor and Consumer Protection, Consumer Response Center, Federal Deposit Insurance Corporation, at the following address: 1100 Walnut Street, Box #11, Kansas City, MO 64106, or telephone 1-877-275-3342, or FDIC Electronic Customer Assistance Form at http://www5.fdic.gov/starsmail/index.asp.

    PART 390—REGULATIONS TRANSFERRED FROM THE OFFICE OF THRIFT SUPERVISION 2. The authority citation for part 390 is revised to read as follows: Authority:

    12 U.S.C. 1831y.

    Subpart I—[Removed and Reserved] 3. Remove and reserve subpart I, consisting of §§ 390.180 through 390.185, and appendix A. Dated at Washington, DC, on March 20, 2018.

    By order of the Board of Directors.

    Federal Deposit Insurance Corporation. Valerie J. Best, Assistant Executive Secretary.
    [FR Doc. 2018-06163 Filed 3-30-18; 8:45 am] BILLING CODE 6714-01-P
    DEPARTMENT OF COMMERCE Bureau of Industry and Security 15 CFR Parts 738, 740, 745 and 774 [Docket No. 170306234-7234-01] RIN 0694-AH37 Implementation of the February 2017 Australia Group (AG) Intersessional Decisions and the June 2017 AG Plenary Understandings; Addition of India to the AG AGENCY:

    Bureau of Industry and Security, Commerce.

    ACTION:

    Final rule.

    SUMMARY:

    The Bureau of Industry and Security (BIS) publishes this final rule to amend the Export Administration Regulations (EAR) to implement the recommendations presented at the February 2017 Australia Group (AG) Intersessional Implementation Meeting, and later adopted pursuant to the AG silent approval procedure, and the recommendations made at the June 2017 AG Plenary Implementation Meeting and adopted by the AG Plenary. This rule amends the following Export Control Classification Numbers (ECCNs) on the Commerce Control List (CCL) to reflect the February 2017 Intersessional Implementation Meeting recommendations that were adopted by the AG: ECCN 2B350 (by adding certain prefabricated repair assemblies, and specially designed components therefor, that are designed for attachment to glass-lined reaction vessels, reactors, storage tanks, containers or receivers controlled by this entry); ECCN 2B351 (by clarifying that toxic gas monitoring equipment includes toxic gas monitors and monitoring systems, as well as their dedicated detecting components); and ECCN 2B352 (by adding certain nucleic acid assemblers and synthesizers to this entry and clarifying how the capacity of certain fermenters should be measured for purposes of determining whether they are controlled under this entry).

    Consistent with the June 2017 AG Plenary Implementation Meeting recommendations that were adopted by the AG, this rule amends the following ECCNs on the CCL: ECCN 1C353 (to clarify that genetically modified organisms include organisms in which the nucleic acid sequences have been created or altered by deliberate molecular manipulation and that inactivated organisms containing recoverable nucleic acids are considered to be genetic elements) and ECCN 1C350 (by addingN,N-Diisopropylamino­ethanethiol hydrochloride). This rule also corrects several typographical errors in a note to ECCN 1C351 and updates the advance notification requirements in the EAR that apply to certain exports of saxitoxin. Finally, this rule amends the EAR to reflect the addition of India as a participating country in the AG.

    DATES:

    This rule is effective April 2, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Richard P. Duncan, Ph.D., Director, Chemical and Biological Controls Division, Office of Nonproliferation and Treaty Compliance, Bureau of Industry and Security, Telephone: (202) 482-3343, Email: [email protected].

    SUPPLEMENTARY INFORMATION:

    The Bureau of Industry and Security (BIS) is amending the Export Administration Regulations (EAR) to implement the recommendations presented at the Australia Group (AG) Intersessional Implementation Meeting held in Buenos Aires, Argentina, on February 15, 2017, and adopted pursuant to the AG silent approval procedure in April 2017, and the recommendations presented at the Implementation Meeting of the 2017 AG Plenary held in Paris, France, from June 26-30, 2017, and adopted by the AG Plenary. This rule also amends the EAR to reflect the addition of India as a participating country in the AG, as of January 19, 2018. The AG is a multilateral forum consisting of 42 participating countries and the European Union that maintain export controls on a list of chemicals, biological agents, and related equipment and technology that could be used in a chemical or biological weapons program. The AG periodically reviews items on its control list to enhance the effectiveness of participating governments' national controls and to achieve greater harmonization among these controls.

    Amendments to the CCL Based on the February 2017 AG Intersessional Recommendations ECCN 2B350 (Chemical Manufacturing Facilities and Equipment)

    This final rule amends ECCN 2B350 on the CCL to reflect changes to the AG “Control List of Dual-Use Chemical Manufacturing Facilities and Equipment and Related Technology and Software” based on the February 2017 Intersessional Implementation Meeting recommendations that were adopted by the AG pursuant to its silent approval procedure. Specifically, this rule amends ECCN 2B350 to control prefabricated repair assemblies, and their specially designed components, that: (1) Are designed for mechanical attachment to glass-lined reaction vessels and reactors controlled under 2B350.a or glass-lined storage tanks, containers and receivers controlled under 2B350.c; and (2) have metallic surfaces that are made from tantalum or tantalum alloys and come in direct contact with the chemical(s) being processed. These assemblies and components were added to the AG chemical manufacturing facilities and equipment common control list, because they are capable of being used to prolong the life, or even allow the recommissioning, of glass-lined reactors and storage tanks that are suitable for use in the production of chemical weapons (CW) agents or AG-listed precursor chemicals.

    All items controlled under ECCN 2B350 continue to require a license for chemical/biological (CB) reasons to destinations indicated in CB Column 2 on the Commerce Country Chart (see Supplement No. 1 to part 738 of the EAR) and for anti-terrorism (AT) reasons to destinations indicated in AT Column 1 on the Commerce Country Chart.

    ECCN 2B351 (Toxic Gas Monitors and Monitoring Systems)

    This final rule amends ECCN 2B351 on the CCL to reflect changes to the AG “Control List of Dual-Use Chemical Manufacturing Facilities and Equipment and Related Technology and Software” based on the February 2017 Intersessional Implementation Meeting recommendations that were adopted by the AG pursuant to its silent approval procedure. Specifically, this rule amends ECCN 2B351 to clarify that this entry controls toxic gas monitors and monitoring systems, and their dedicated detecting components (i.e., detectors, sensor devices, and replaceable sensor cartridges), having either of the following characteristics: (1) Designed for continuous operation and usable for the detection of chemical warfare agents or precursor chemicals controlled by ECCN 1C350 at concentrations of less than 0.3 mg/m3; or (2) designed for the detection of cholinesterase-inhibiting activity. The decision to specifically identify toxic gas monitors, in addition to toxic gas monitoring systems, on the AG chemical manufacturing facilities and equipment common control list is based on the fact that certain portable toxic gas monitors (e.g., small handheld detectors) are capable of satisfying the technical control criteria applicable to toxic gas monitoring systems and, as such, may also be suitable for use in a CW production or storage facility. This rule also amends related “software” controls in ECCN 2D351 to reflect the updates to ECCN 2B351 described above.

    All items controlled under ECCN 2B351 continue to require a license for CB reasons to destinations indicated in CB Column 2 on the Commerce Country Chart and for AT reasons to destinations indicated in AT Column 1 on the Commerce Country Chart.

    ECCN 2B352 (Equipment Capable of Use in Handling Biological Materials)

    This final rule amends ECCN 2B352 on the CCL to reflect changes to the AG “Control List of Dual-Use Biological Equipment and Related Technology and Software” based on the February 2017 Intersessional Implementation Meeting recommendations that were adopted by the AG pursuant to its silent approval procedure. Specifically, this rule amends ECCN 2B352 to indicate that the “total internal volume” of a fermenter must be measured to determine whether its capacity meets the control level of “20 liters or greater” specified in 2B352.b.1. This clarification was made to ensure that all AG participating countries apply the same criterion to measure capacity for purposes of determining whether a fermenter is subject to control.

    This rule also amends ECCN 2B352 by adding a new paragraph .j to control nucleic acid assemblers and synthesizers that are both: (1) Partly or entirely automated; and (2) designed to generate continuous nucleic acids greater than 1.5 kilobases in length with error rates less than 5% in a single run. These items were added to the AG dual-use biological equipment common control list because they are capable of being used to generate pathogens and toxins without the need to acquire controlled genetic elements and organisms.

    All items controlled under ECCN 2B352 continue to require a license for CB reasons to destinations indicated in CB Column 2 on the Commerce Country Chart and for AT reasons to destinations indicated in AT Column 1 on the Commerce Country Chart.

    Amendments to the CCL Based on the June 2017 AG Plenary Understandings ECCN 1C350 (Precursor Chemicals)

    This final rule amends ECCN 1C350 to reflect updates to the AG “Chemical Weapons Precursors” control list adopted at the June 2017 AG Plenary meeting. Specifically, this rule amends ECCN 1C350.b by adding the precursor chemical hydrochloride salt (C.A.S. #41480-75-5)N,N-Diisopropylamino­ethanethiol hydrochloride. This rule also alphabetically reorders the precursor chemicals listed in ECCN 1C350.b, .c, and .d to facilitate the identification of these chemicals. The precursor chemicals affected by these amendments to ECCN 1C350 are indicated in the following table.

    AG-Controlled precursor chemicals Previous CCL
  • designation
  • Current CCL
  • designation
  • (C.A.S. #683-08-9) Diethyl methylphosphonate ECCN 1C350.b.22 ECCN 1C350.b.4 (C.A.S. #15715-41-0) Diethyl methylphosphonite ECCN 1C350.b.4 ECCN 1C350.b.5 (C.A.S. #2404-03-7) Diethyl-N,N-dimethylphosphoroamidate ECCN 1C350.b.5 ECCN 1C350.b.6 (C.A.S. #41480-75-5) N,N-Diisopropylaminoethanethiol hydrochloride None—EAR 99 ECCN 1C350.b.7 (C.A.S. #5842-07-9) N,N-Diisopropyl-beta-aminoethane thiol ECCN 1C350.b.6 ECCN 1C350.b.8 (C.A.S. #96-80-0) N,N-Diisopropyl-beta-aminoethanol ECCN 1C350.b.8 ECCN 1C350.b.9 (C.A.S. #96-79-7), N,N-Diisopropyl-beta-aminoethyl chloride ECCN 1C350.b.9 ECCN 1C350.b.10 (C.A.S. #4261-68-1) N,N-Diisopropyl-beta-aminoethyl chloride hydrochloride ECCN 1C350.b.7 ECCN 1C350.b.11 (C.A.S. #6163-75-3) Dimethyl ethylphosphonate ECCN 1C350.b.10 ECCN 1C350.b.12 (C.A.S. #756-79-6) Dimethyl methylphosphonate ECCN 1C350.b.11 ECCN 1C350.b.13 (C.A.S. #677-43-0) N,N-Dimethylamino-phosphoryl dichloride ECCN 1C350.b.23 ECCN 1C350.b.14 (C.A.S. #1498-40-4) Ethyl phosphonous dichloride [Ethyl phosphinyl dichloride] ECCN 1C350.b.12 ECCN 1C350.b.15 (C.A.S. #430-78-4) Ethyl phosphonus difluoride [Ethyl phosphinyl difluoride] ECCN 1C350.b.13 ECCN 1C350.b.16 (C.A.S. #1066-50-8) Ethyl phosphonyl dichloride ECCN 1C350.b.14 ECCN 1C350.b.17 (C.A.S. #993-13-5) Methylphosphonic acid ECCN 1C350.b.21 ECCN 1C350.b.18 (C.A.S. #676-98-2) Methylphos-phonothioic dichloride ECCN 1C350.b.24 ECCN 1C350.b.19 (C.A.S. #464-07-3) Pinacolyl alcohol ECCN 1C350.b.18 ECCN 1C350.b.20 (C.A.S. #1619-34-7) 3-Quinuclidinol ECCN 1C350.b.19 ECCN 1C350.b.21 (C.A.S. #111-48-8) Thiodiglycol ECCN 1C350.b.20 ECCN 1C350.b.22 (C.A.S. #139-87-7) Ethyldiethanolamine ECCN 1C350.c.12 ECCN 1C350.c.3 (C.A.S. #10025-87-3) Phosphorus oxychloride ECCN 1C350.c.3 ECCN 1C350.c.4 (C.A.S. #10026-13-8) Phosphorus pentachloride ECCN 1C350.c.4 ECCN 1C350.c.5 (C.A.S. #7719-12-2) Phosphorus trichloride ECCN 1C350.c.5 ECCN 1C350.c.6 (C.A.S. #10025-67-9) Sulfur monochloride ECCN 1C350.c.6 ECCN 1C350.c.8 (C.A.S. #7719-09-7) Thionyl chloride ECCN 1C350.c.8 ECCN 1C350.c.9 (C.A.S. #102-71-6) Triethanolamine ECCN 1C350.c.9 ECCN 1C350.c.10 (C.A.S. #122-52-1) Triethyl phosphite ECCN 1C350.c.10 ECCN 1C350.c.11 (C.A.S. #121-45-9) Trimethyl phosphite ECCN 1C350.c.11 ECCN 1C350.c.12 (C.A.S. #109-89-7) Diethylamine ECCN 1C350.d.25 ECCN 1C350.d.3 (C.A.S. #100-37-8) N,N-Diethylaminoethanol ECCN 1C350.d.3 ECCN 1C350.d.4 (C.A.S. #298-06-6) O,O-Diethyl phosphorodithioate ECCN 1C350.d.23 ECCN 1C350.d.5 (C.A.S. #2465-65-8) O,O-Diethyl phosphorothioate ECCN 1C350.d.22 ECCN 1C350.d.6 (C.A.S. #108-18-9) Di-isopropylamine ECCN 1C350.d.4 ECCN 1C350.d.7 (C.A.S. #124-40-3) Dimethylamine ECCN 1C350.d.5 ECCN 1C350.d.8 (C.A.S. #506-59-2) Dimethylamine hydrochloride ECCN 1C350.d.6 ECCN 1C350.d.9 (C.A.S. #7664-39-3) Hydrogen fluoride ECCN 1C350.d.7 ECCN 1C350.d.10 (C.A.S. #3554-74-3) 3-Hydroxyl-1-methylpiperidine ECCN 1C350.d.8 ECCN 1C350.d.11 (C.A.S. #76-89-1) Methyl benzilate ECCN 1C350.d.9 ECCN 1C350.d.12 (C.A.S. #1314-80-3) Phosphorus pentasulfide ECCN 1C350.d.10 ECCN 1C350.d.13 (C.A.S. #75-97-8) Pinacolone ECCN 1C350.d.11 ECCN 1C350.d.14 (C.A.S. #7789-29-9) Potassium bifluoride ECCN 1C350.d.14 ECCN 1C350.d.15 (C.A.S. #151-50-8) Potassium cyanide ECCN 1C350.d.12 ECCN 1C350.d.16 (C.A.S. #7789-23-3) Potassium fluoride ECCN 1C350.d.13 ECCN 1C350.d.17 (C.A.S. #3731-38-2) 3-Quinuclidone ECCN 1C350.d.15 ECCN 1C350.d.18 (C.A.S. #1333-83-1) Sodium bifluoride ECCN 1C350.d.16 ECCN 1C350.d.19 (C.A.S. #143-33-9) Sodium cyanide ECCN 1C350.d.17 ECCN 1C350.d.20 (C.A.S. #7681-49-4) Sodium fluoride ECCN 1C350.d.18 ECCN 1C350.d.21 (C.A.S. #16893-85-9) Sodium hexafluorosilicate ECCN 1C350.d.24 ECCN 1C350.d.22 (C.A.S. #1313-82-2) Sodium sulfide ECCN 1C350.d.19 ECCN 1C350.d.23 (C.A.S. #637-39-8) Triethanolamine hydrochloride ECCN 1C350.d.20 ECCN 1C350.d.24 (C.A.S. #116-17-6) Tri-isopropyl phosphite ECCN 1C350.d.21 ECCN 1C350.d.25

    All items controlled under ECCN 1C350 continue to require a license for CB reasons to destinations indicated in CB Column 2 on the Commerce Country Chart and for AT reasons to countries listed in Country Group E:1 (see Supplement No. 1 to part 740 of the EAR). In addition, items controlled under 1C350.b or .c require a license to certain destinations for chemical weapons (CW) reasons, as described in the License Requirements section of ECCN 1C350 and in Section 742.18 of the EAR.

    ECCN 1C353 (Genetic Elements and Genetically Modified Organisms)

    This final rule amends ECCN 1C353 on the CCL to reflect updates to the AG controls on certain genetic elements and genetically modified organisms adopted at the June 2017 AG Plenary meeting. Specifically, this rule amends ECCN 1C353 to control any genetically modified organism that contains, or any genetic element that codes for: (1) Any gene or genes specific to any virus controlled by ECCN 1C351.a or .b or 1C354.c; (2) any gene or genes specific to any bacterium controlled by ECCN 1C351.c or 1C354.a, or any fungus controlled by ECCN 1C351.e or 1C354.b, and which in itself or through its transcribed or translated products represents a significant hazard to human, animal or plant health or could endow or enhance pathogenicity; or (3) any toxins, or their subunits, controlled by ECCN 1C351.d.

    In addition, this rule amends the Technical Notes to ECCN 1C353 to clarify that “genetically modified organisms include organisms in which the nucleic acid sequences have been created or altered by deliberate molecular manipulation” (see Technical Note 1 to ECCN 1C353, as amended by this rule) and that inactivated organisms containing recoverable nucleic acids are considered to be genetic elements, whether genetically modified or unmodified, or chemically synthesized in whole or in part (see Technical Note 2 to ECCN 1C353, as amended by this rule). Technical Note 3 to ECCN 1C353, as amended by this rule, states that this ECCN does not control nucleic acid sequences of shiga toxin producing Escherichia coli of serogroups O26, O45, O103, O104, O111, O121, O145, O157, and other shiga toxin producing serogroups, other than those genetic elements coding for shiga toxin, or for its subunits.

    This rule also defines the term “endow or enhance pathogenicity,” for purposes of the controls in ECCN 1C353 (see Technical Note 4 to ECCN 1C353, as amended by this rule), as when the insertion or integration of the nucleic acid sequence or sequences is/are likely to enable or increase a recipient organism's ability to be used to deliberately cause disease or death. This might include alterations to, inter alia: virulence, transmissibility, stability, route of infection, host range, reproducibility, ability to evade or suppress host immunity, resistance to medical countermeasures, or detectability.

    All items controlled under ECCN 1C353 continue to require a license for CB reasons to destinations indicated in CB Column 1 on the Commerce Country Chart and for AT reasons to destinations indicated in AT Column 1 on the Commerce Country Chart.

    Amendments to the EAR To Reflect the Addition of India to the AG

    This rule makes conforming amendments to the EAR to reflect the addition of India to the AG, as of January 19, 2018. Specifically, this rule amends the entry for India in the Commerce Country Chart (Supplement No. 1 to part 738 of the EAR) by removing the “X” from this entry under the column CB 2. In addition, this rule amends the Country Groups chart (Supplement No. 1 to part 740 of the EAR) by adding an “X” to the entry for India under column A:3, Australia Group.

    Corrections to ECCN 1C351 (Human and Animal Pathogens and “Toxins”)

    This final rule amends ECCN 1C351 on the CCL by removing several outdated references to former ECCN 1C352 in the Note that follows 1C351.a.4, which describes avian influenza (AI) viruses subject to control under this ECCN, and adding in their place references to the relevant AI controls described in 1C351.a.4. These corrections do not affect the scope of the items subject to control under this ECCN or the license requirements applicable to these items.

    Correction To Advance Notification Requirements for Certain Exports of Saxitoxin

    This final rule also corrects the Chemical Weapons Convention (CWC) Schedule 1 chemical advance notification requirements in Section 745.1 of the EAR to reflect the April 27, 2006 (71 FR 24918), amendments to the Chemical Weapons Convention Regulations (CWCR) (15 CFR parts 710-722) that, inter alia, amended the definition of advance notification in Section 710.1 of the CWCR, as well as the advance notification requirements in Section 712.6(a) of the CWCR, to indicate that the 45-day advance notification requirement for exports or imports of Schedule 1 chemicals does not apply to the export or import of 5 milligrams or less of saxitoxin (see ECCN 1C351.d.12) for medical or diagnostic purposes only—the latter requires only a 3-day advance notification. Specifically, this final rule amends the first sentence in Section 745.1(a) of the EAR to read as follows: “You must notify BIS at least 45 calendar days prior to exporting any quantity of a Schedule 1 chemical listed in Supplement No. 1 to this part to another State Party, except that notifications for exports of 5 milligrams or less of saxitoxin (for medical or diagnostic purposes only) must be submitted to BIS at least 3 calendar days prior to the date of export (see 15 CFR 712.6(a)).” The advance notification requirements in Section 745.1 of the EAR refer only to exports, because imports are outside the scope of these EAR requirements. However, as indicated above, the advance notification requirements described in Section 712.6(a) of the CWCR apply to imports, as well as exports. The exemption from the 45-day advance notification requirement, for certain exports and imports of saxitoxin (as described above), was approved and entered into force for all CWC States Parties on October 31, 1999.

    Effect of This Rule on the Scope of the CB Controls in the EAR

    The changes made by this rule only marginally affect the scope of the EAR controls on chemical weapons precursors, human and animal pathogens/toxins, chemical manufacturing equipment, and equipment capable of use in handling biological materials.

    The scope of the CCL-based CB controls on human and animal pathogens and toxins was not affected by the correction to ECCN 1C351 in which outdated references to former ECCN 1C352 were removed from the Note that follows 1C351.a.4 and references to the relevant avian influenza (AI) controls described in 1C351.a.4 were added in their place. In addition, the updates to the controls on genetic elements and genetically modified organisms described in ECCN 1C353 clarified the scope of these controls, but did not actually expand them. In short, neither of these changes is expected to result in an increase in the number of license applications that will have to be submitted to BIS for exports, reexports, or transfers (in-country) of these items.

    However, the changes made by this final rule to the CCL entries controlling chemical weapons precursors, chemical manufacturing equipment, and equipment capable of use in handling biological materials are expected to result in a slight increase in the number of license applications that will have to be submitted for these items. Specifically, the addition of the precursor chemical hydrochloride salt N,N-Diisopropylaminoethanethiol hydrochloride (C.A.S. #41480-75-5) to ECCN 1C350.b is expected to result in the submission of one or two additional license applications per year. The addition of controls on certain prefabricated repair assemblies, and their specially designed components, to ECCN 2B350 is expected to result in the submission of four or five additional license applications per year. Specifically listing toxic gas monitors in ECCN 2B351 (to clarify that this entry controls, inter alia, certain portable gas monitors as well as toxic gas monitoring systems) is expected to result in the submission of two or three additional license applications per year. The addition of controls on nucleic acid assemblers and synthesizers to ECCN 2B352 is expected to result in the submission of four or five additional license applications per year.

    Therefore, the number of additional license applications that would have to be submitted per year, as a result of the amendments to ECCNs 1C350, 2B350, 2B351 and 2B352 described above, is not expected to exceed fifteen license applications. This total represents a relatively insignificant portion of the overall trade in such items and is well within the scope of the information collection approved by the Office of Management and Budget (OMB) under control number 0694-0088 (see Rulemaking Requirements #2, below).

    Saving Clause

    Shipments of items removed from eligibility for export or reexport under a license exception or without a license (i.e., under the designator “NLR”) as a result of this regulatory action that were on dock for loading, on lighter, laden aboard an exporting carrier, or en route aboard a carrier to a port of export, on May 2, 2018, pursuant to actual orders for export or reexport to a foreign destination, may proceed to that destination under the previously applicable license exception or without a license (NLR) so long as they are exported or reexported before May 17, 2018. Any such items not actually exported or reexported before midnight, on May 17, 2018, require a license in accordance with this regulation.

    “Deemed” exports of “technology” and “source code” removed from eligibility for export under a license exception or without a license (under the designator “NLR”) as a result of this regulatory action may continue to be made under the previously available license exception orwithout a license (NLR) before May 17, 2018. Beginning at midnight on May 17, 2018, such “technology” and “source code” may no longer be released, without a license, to a foreign national subject to the “deemed” export controls in the EAR when a license would be required to the home country of the foreign national in accordance with this regulation.

    Export Administration Act

    Although the Export Administration Act expired on August 20, 2001, the President, through Executive Order 13222 of August 17, 2001, 3 CFR, 2001 Comp., p. 783 (2002), as amended by Executive Order 13637 of March 8, 2013, 78 FR 16129 (March 13, 2013), and as extended by the Notice of August 15, 2017 (82 FR 39005 (August 16, 2017)), has continued the Export Administration Regulations in effect under the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.). BIS continues to carry out the provisions of the Export Administration Act, as appropriate and to the extent permitted by law, pursuant to Executive Order 13222 as amended by Executive Order 13637.

    Rulemaking Requirements

    1. Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has been designated a “significant regulatory action,” although not economically significant, under section 3(f) of Executive Order 12866. Accordingly, the rule has been reviewed by the Office of Management and Budget.

    The cost-benefit analysis required pursuant to Executive Orders 13563 and 12866 indicates that this rule is intended to improve national security as its primary direct benefit. Specifically, implementation, in a timely manner, of the AG agreements described herein would enhance the national security of the United States by reducing the risk that global international trade involving dual-use chemical/biological items would contribute to the proliferation of chemical and biological weapons of mass destruction. The first meeting of what subsequently became known as the Australia Group (AG) took place in Brussels in June 1985. At that meeting, the 15 participating countries and the European Commission agreed to explore how existing export controls might be made more effective to prevent the spread of chemical weapons. The AG has met regularly since then, and annual meetings are now held in Paris. The scope of the export controls addressed by the AG has evolved to address emerging threats and challenges. Evidence of the diversion of dual-use materials to biological weapons programs in the early 1990s led to participants' adoption of export controls on specific biological agents. The common control lists developed by the AG have also expanded to include technology and equipment that can be used in the manufacturing or disposal of chemical and biological weapons. The number of countries participating in the AG has grown from 15 in 1985 to 42, plus the European Union. The principal objective of AG participating countries is to use licensing measures to ensure that exports of certain chemicals, biological agents, and dual-use chemical and biological manufacturing facilities and equipment, do not contribute to the proliferation of chemical and biological weapons (CBW) of mass destruction, which has been identified as a threat to domestic and international peace and security. The AG achieves this objective by harmonizing participating countries' national export licensing measures. The AG's activities are especially important given that the international chemical and biotechnology industries are a target for proliferators as a source of materials for CBW programs. In calculating the costs that would be imposed by this rule, Commerce estimates that no more than 15 additional license applications would have to be submitted to BIS, annually, as a result of the implementation of the AG-related amendments described in this rule (see Rulemaking Requirements #2, below). Application of the cost-benefit analysis required under Executive Orders 13563 and 12866 to this rule, as described above, indicates that this rule is intended to improve the national security of the United States as its primary direct benefit. Furthermore, this rule qualifies for a good cause exception under 5 U.S.C. 553(b)(B) of the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, the opportunity for public participation, and a delay in effective date—this finding, and a brief statement of the reasons therefor, are described under Rulemaking Requirements #4, below. Accordingly, this rule meets the requirements set forth in the April 5, 2017, OMB guidance implementing E.O. 13771 (82 FR 9339, February 3, 2017), regarding what constitutes a regulation issued “with respect to a national security function of the United States” and it is, therefore, exempt from the requirements of E.O. 13771.

    2. Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number. This rule contains a collection of information subject to the requirements of the PRA. This collection has been approved by OMB under control number 0694-0088, Simplified Network Application Processing System. This collection includes license applications, among other things, and carries a burden estimate of 29.6 minutes per manual or electronic submission for a total burden estimate of 31,833 hours. Although this final rule makes important changes to the EAR for items controlled for chemical/biological (CB) reasons, Commerce believes the overall increase in costs and burdens due to this rule will be minimal. Specifically, BIS expects the burden hours associated with this collection to increase, slightly, by 7 hours and 24 minutes (i.e., 15 applications × 29.6 minutes per response) for an estimated cost increase of $222 (i.e., 7 hours and 24 minutes × $30 per hour). This increase is not expected to exceed the existing estimates currently associated with OMB control number 0694-0088. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing the burden, to Jasmeet Seehra, Office of Management and Budget, by email to [email protected] or by fax to (202) 395-7285; and to the Regulatory Policy Division, Bureau of Industry and Security, Department of Commerce, 14th Street & Pennsylvania Avenue NW, Room 2705, Washington, DC 20230 or by email to [email protected].

    3. This rule does not contain policies with Federalism implications as that term is defined in Executive Order 13132.

    4. The provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, the opportunity for public participation, and a delay in effective date, are inapplicable because this regulation involves a military and foreign affairs function of the United States (see 5 U.S.C. 553(a)(1)). Immediate implementation of these amendments is non-discretionary and fulfills the United States' international obligation to the Australia Group (AG). The AG contributes to international security and regional stability through the harmonization of export controls and seeks to ensure that exports do not contribute to the development of chemical and biological weapons. The AG consists of 42 member countries that act on a consensus basis and the amendments set forth in this rule implement changes made to the AG common control lists (as a result of the adoption of the recommendations made at the February 2017 AG Intersessional Implementation Meeting and the understandings reached at the June 2017 AG Plenary Implementation Meeting) and other changes that are necessary to ensure consistency with the controls maintained by the AG. Because the United States is a significant exporter of the items in this rule, immediate implementation of this provision is necessary for the AG to achieve its purpose.

    Although the APA requirements in section 553 are not applicable to this action under the provisions of paragraph (a)(1), this action also falls within two other exceptions in the section. The subsection (b) requirement that agencies publish a notice of proposed rulemaking, which includes information on the public proceedings, does not apply when an agency for good cause finds that the notice and public procedures are impracticable, unnecessary, or contrary to the public interest, and the agency incorporates the finding (and the reasons therefor) in the rule that is issued (5 U.S.C. 553(b)(B)). In addition, the section 553(d) requirement that publication of a rule shall be made not less than 30 days before its effective date can be waived if an agency findsthere is good cause to do so.

    The section 553 requirements for notice and public procedures and for a delay in the date of effectiveness do not apply to this rule, as there is good cause to waive such practices. Any delay in implementation will create a disruption in the movement of affected items globally because of disharmony between export control measures implemented by AG members, resulting in tension between member countries. Export controls work best when all countries implement the same export controls in a timely manner. Delaying this rulemaking would prevent the United States from fulfilling its commitment to the AG in a timely manner, would injure the credibility of the United States in this and other multilateral regimes, and may impair the international community's ability to effectively control the export of certain potentially national- and international security-threatening items. Therefore, this regulation is issued in final form, and is effective April 2, 2018.

    Further, no other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this final rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule under the Administrative Procedure Act or by any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) are not applicable. Accordingly, no regulatory flexibility analysis is required and none has been prepared.

    List of Subjects 15 CFR Part 738

    Administrative practice and procedure, Exports, Foreign trade.

    15 CFR Part 740

    Administrative practice and procedure, Exports, Reporting and recordkeeping requirements.

    15 CFR Part 745

    Administrative practice and procedure, Chemicals, Exports, Foreign trade, Reporting and recordkeeping requirements.

    15 CFR Part 774

    Exports, Reporting and recordkeeping requirements.

    For the reasons stated in the preamble, parts 738, 740, 745 and 774 of the Export Administration Regulations (15 CFR parts 730-774) are amended as follows:

    PART 738—[AMENDED] 1. The authority citation for part 738 continues to read as follows: Authority:

    50 U.S.C. 4601 et seq.; 50 U.S.C. 1701 et seq.; 10 U.S.C. 7420; 10 U.S.C. 7430(e); 22 U.S.C. 287c; 22 U.S.C. 3201 et seq.; 22 U.S.C. 6004; 42 U.S.C. 2139a; 15 U.S.C. 1824a; 50 U.S.C. 4305; 22 U.S.C. 7201 et seq.; 22 U.S.C. 7210; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of August 15, 2017, 82 FR 39005 (August 16, 2017).

    2. Supplement No. 1 to Part 738 is amended by revising the entry for “India” to read as follows: Supplement No. 1 to Part 738—Commerce Country Chart [Reason for control] Countries Chemical and biological weapons CB
  • 1
  • CB
  • 2
  • CB
  • 3
  • Nuclear
  • nonproliferation
  • NP
  • 1
  • NP
  • 2
  • National security NS
  • 1
  • NS
  • 2
  • Missile
  • tech
  • MT
  • 1
  • Regional stability RS
  • 1
  • RS
  • 2
  • Firearms
  • convention
  • FC
  • 1
  • Crime control CC
  • 1
  • CC
  • 2
  • CC
  • 3
  • Anti-terrorism AT
  • 1
  • AT
  • 2
  • *         *         *         *         *         *         * India 7 X X X X X X *         *         *         *         *         *         * 7 See § 758.1(b)(9) for an AES filing requirement for exports of CC column 1 or 3, or RS column 2 items to India. Also note that a license is still required for items controlled under ECCNs 6A003.b.4.b and 9A515.e for RS column 2 reasons when destined to India.
    PART 740—[AMENDED] 3. The authority citation for part 740 continues to read as follows: Authority:

    50 U.S.C. 4601 et seq.; 50 U.S.C. 1701 et seq.; 22 U.S.C. 7201 et seq.; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of August 15, 2017, 82 FR 39005 (August 16, 2017).

    4. In Supplement No. 1 to Part 740, Country Groups, Country Group A is amended by revising the entry for “India” to read as follows: Supplement No. 1 to Part 740—Country Groups [Country Group A] Country [A:1]
  • Wassenaar
  • participating
  • states 1
  • [A:2]
  • Missile
  • technology
  • control
  • regime
  • [A:3]
  • Australia
  • group
  • [A:4]
  • Nuclear
  • suppliers
  • group 2
  • [A:5] [A:6]
    *         *         *         *         *         *         * India X X X *         *         *         *         *         *         * 1 Country Group A:1 is a list of the Wassenaar Arrangement Participating States, except for Malta, Russia and Ukraine. 2 Country Group A:4 is a list of the Nuclear Suppliers Group countries, except for the People's Republic of China (PRC).
    PART 745—[AMENDED] 5. The authority citation for part 745 continues to read as follows: Authority:

    50 U.S.C. 1701 et seq.; E.O. 12938, 59 FR 59099, 3 CFR, 1994 Comp., p. 950; Notice of November 8, 2016, 81 FR 79379 (November 10, 2016).

    6. In § 745.1, the first sentence in paragraph (a) is revised to read as follows:
    § 745.1 Advance notification and annual report of all exports of Schedule 1 chemicals to other States Parties.

    (a) Advance notification of exports. You must notify BIS at least 45 calendar days prior to exporting any quantity of a Schedule 1 chemical listed in Supplement No. 1 to this part to another State Party, except that notifications for exports of 5 milligrams or less of saxitoxin (for medical or diagnostic purposes only) must be submitted to BIS at least 3 calendar days prior to the date of export (see 15 CFR 712.6(a)). * * *

    PART 774—[AMENDED] 7. The authority citation for part 774 continues to read as follows: Authority:

    50 U.S.C. 4601 et seq.; 50 U.S.C. 1701 et seq.; 10 U.S.C. 7420; 10 U.S.C. 7430(e); 22 U.S.C. 287c, 22 U.S.C. 3201 et seq.; 22 U.S.C. 6004; 30 U.S.C. 185(s), 185(u); 42 U.S.C. 2139a; 43 U.S.C. 1354; 15 U.S.C. 1824a; 50 U.S.C. 4305; 22 U.S.C. 7201 et seq.; 22 U.S.C. 7210; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of August 15, 2017, 82 FR 39005 (August 16, 2017).

    8. In Supplement No. 1 to Part 774 (the Commerce Control List), Category 1, ECCN 1C350 is revised to read as follows: Supplement No. 1 to Part 774—The Commerce Control List 1C350 Chemicals that may be used as precursors for toxic chemical agents (see List of Items Controlled). License Requirements Reason for Control: CB, CW, AT Control(s) Country chart (See Supp. No. 1 to part 738) CB applies to entire entry CB Column 2

    CW applies to 1C350 .b, and .c. The Commerce Country Chart is not designed to determine licensing requirements for items controlled for CW reasons. A license is required, for CW reasons, to export or reexport Schedule 2 chemicals and mixtures identified in 1C350.b to States not Party to the CWC (destinations not listed in Supplement No. 2 to part 745 of the EAR). A license is required, for CW reasons, to export Schedule 3 chemicals and mixtures identified in 1C350.c to States not Party to the CWC, unless an End-Use Certificate issued by the government of the importing country has been obtained by the exporter prior to export. A license is required, for CW reasons, to reexport Schedule 3 chemicals and mixtures identified in 1C350.c from a State not Party to the CWC to any other State not Party to the CWC. (See § 742.18 of the EAR for license requirements and policies for toxic and precursor chemicals controlled for CW reasons. See § 745.2 of the EAR for End-Use Certificate requirements that apply to exports of Schedule 3 chemicals to countries not listed in Supplement No. 2 to part 745 of the EAR.)

    AT applies to entire entry. The Commerce Country Chart is not designed to determine licensing requirements for items controlled for AT reasons in 1C350. A license is required, for AT reasons, to export or reexport items controlled by 1C350 to a country in Country Group E:1 of Supplement No. 1 to part 740 of the EAR. (See part 742 of the EAR for additional information on the AT controls that apply to Iran, North Korea, Sudan, and Syria. See part 746 of the EAR for additional information on sanctions that apply to Iran, North Korea, and Syria.)

    License Requirement Notes: 1. Sample Shipments: Subject to the following requirements and restrictions, a license is not required for sample shipments when the cumulative total of these shipments does not exceed a 55-gallon container or 200 kg of a single chemical to any one consignee during a calendar year. A consignee that receives a sample shipment under this exclusion may not resell, transfer, or reexport the sample shipment, but may use the sample shipment for any other legal purpose unrelated to chemical weapons.

    a. Chemicals Not Eligible:

    A. [Reserved]

    B. CWC Schedule 2 chemicals (States not Party to the CWC). No CWC Schedule 2 chemical or mixture identified in 1C350.b is eligible for sample shipment to States not Party to the CWC (destinations not listed in Supplement No. 2 to part 745 of the EAR) without a license.

    b. Countries Not Eligible: Countries in Country Group E:1 of Supplement No. 1 to part 740 of the EAR are not eligible to receive sample shipments of any chemicals controlled by this ECCN without a license.

    c. Sample shipments that require an End-Use Certificate for CW reasons: No CWC Schedule 3 chemical or mixture identified in 1C350.c is eligible for sample shipment to States not Party to the CWC (destinations not listed in Supplement No. 2 to part 745 of the EAR) without a license, unless an End-Use Certificate issued by the government of the importing country is obtained by the exporter prior to export (see § 745.2 of the EAR for End-Use Certificate requirements).

    d. Sample shipments that require a license for reasons set forth elsewhere in the EAR: Sample shipments, as described in this Note 1, may require a license for reasons set forth elsewhere in the EAR. See, in particular, the end-use/end-user restrictions in part 744 of the EAR, and the restrictions that apply to embargoed countries in part 746 of the EAR.

    e. Annual report requirement. The exporter is required to submit an annual written report for shipments of samples made under this Note 1. The report must be on company letterhead stationery (titled “Report of Sample Shipments of Chemical Precursors” at the top of the first page) and identify the chemical(s), Chemical Abstract Service Registry (C.A.S.) number(s), quantity(ies), the ultimate consignee's name and address, and the date of export for all sample shipments that were made during the previous calendar year. The report must be submitted no later than February 28 of the year following the calendar year in which the sample shipments were made, to: U.S. Department of Commerce, Bureau of Industry and Security, 14th Street and Pennsylvania Ave. NW, Room 2099B, Washington, DC 20230, Attn: “Report of Sample Shipments of Chemical Precursors.”

    2. Mixtures:

    a. Mixtures that contain precursor chemicals identified in ECCN 1C350, in concentrations that are below the levels indicated in 1C350.b through .d, are controlled by ECCN 1C395 or 1C995 and are subject to the licensing requirements specified in those ECCNs.

    b. A license is not required under this ECCN for a mixture, when the controlled chemical in the mixture is a normal ingredient in consumer goods packaged for retail sale for personal use. Such consumer goods are designated EAR99. However, a license may be required for reasons set forth elsewhere in the EAR.

    Note to mixtures: Calculation of concentrations of AG-controlled chemicals:

    a. Exclusion. No chemical may be added to the mixture (solution) for the sole purpose of circumventing the Export Administration Regulations;

    b. Percent Weight Calculation. When calculating the percentage, by weight, of ingredients in a chemical mixture, include all ingredients of the mixture, including those that act as solvents.

    3. Compounds. Compounds created with any chemicals identified in this ECCN 1C350 may be shipped NLR (No License Required), without obtaining an End-Use Certificate, unless those compounds are also identified in this entry or require a license for reasons set forth elsewhere in the EAR.

    4. Testing Kits: Certain medical, analytical, diagnostic, and food testing kits containing small quantities of chemicals identified in this ECCN 1C350, are excluded from the scope of this ECCN and are controlled under ECCN 1C395 or 1C995. (Note that replacement reagents for such kits are controlled by this ECCN 1C350 if the reagents contain one or more of the precursor chemicals identified in 1C350 in concentrations equal to or greater than the control levels for mixtures indicated in 1C350.)

    Technical Notes: 1. For purposes of this entry, a “mixture” is defined as a solid, liquid or gaseous product made up of two or more ingredients that do not react together under normal storage conditions.

    2. The scope of this control applicable to Hydrogen Fluoride (see 1C350.d.7 in the List of Items Controlled) includes its liquid, gaseous, and aqueous phases, and hydrates.

    3. Precursor chemicals in ECCN 1C350 are listed by name, Chemical Abstract Service (CAS) number and CWC Schedule (where applicable). Precursor chemicals of the same structural formula (e.g., hydrates) are controlled by ECCN 1C350, regardless of name or CAS number. CAS numbers are shown to assist in identifying whether a particular precursor chemical or mixture is controlled under ECCN 1C350, irrespective of nomenclature. However, CAS numbers cannot be used as unique identifiers in all situations because some forms of the listed precursor chemical have different CAS numbers, and mixtures containing a precursor chemical listed in ECCN 1C350 may also have different CAS numbers.

    List Based License Exceptions (See Part 740 for a Description of All License Exceptions) LVS: N/A GBS: N/A CIV: N/A List of Items Controlled Related Controls: See USML Category XIV(c) for related chemicals “subject to the ITAR” (see 22 CFR parts 120 through 130). Related Definitions: See § 770.2(k) of the EAR for synonyms for the chemicals listed in this entry. Items:

    a. [Reserved]

    b. Australia Group-controlled precursor chemicals also identified as Schedule 2 chemicals under the CWC, as follows, and mixtures in which at least one of the following chemicals constitutes 30 percent or more of the weight of the mixture:

    b.1. (C.A.S. #7784-34-1) Arsenic trichloride;

    b.2. (C.A.S. #76-93-7) Benzilic acid;

    b.3. (C.A.S. #78-38-6) Diethyl ethylphosphonate;

    b.4. (C.A.S. #683-08-9) Diethyl methylphosphonate;

    b.5. (C.A.S. #15715-41-0) Diethyl methylphosphonite;

    b.6. (C.A.S. #2404-03-7) Diethyl-N,N-dimethylphosphoroamidate;

    b.7. (C.A.S. #41480-75-5) N,N-Diisopropylaminoethanethiol hydrochloride;

    b.8. (C.A.S. #5842-07-9) N,N-Diisopropyl-beta-aminoethane thiol;

    b.9. (C.A.S. #96-80-0) N,N-Diisopropyl-beta-aminoethanol;

    b.10. (C.A.S. #96-79-7), N,N-Diisopropyl-beta-aminoethyl chloride;

    b.11. (C.A.S. #4261-68-1) N,N-Diisopropyl-beta-aminoethyl chloride hydrochloride;

    b.12. (C.A.S. #6163-75-3) Dimethyl ethylphosphonate;

    b.13. (C.A.S. #756-79-6) Dimethyl methylphosphonate;

    b.14. (C.A.S. #677-43-0) N,N-Dimethylamino-phosphoryl dichloride;

    b.15. (C.A.S. #1498-40-4) Ethyl phosphonous dichloride [Ethyl phosphinyl dichloride];

    b.16. (C.A.S. #430-78-4) Ethyl phosphonus difluoride [Ethyl phosphinyl difluoride];

    b.17. (C.A.S. #1066-50-8) Ethyl phosphonyl dichloride;

    b.18. (C.A.S. #993-13-5) Methylphosphonic acid;

    b.19. (C.A.S. #676-98-2) Methylphos-phonothioic dichloride;

    b.20. (C.A.S. #464-07-3) Pinacolyl alcohol;

    b.21. (C.A.S. #1619-34-7) 3-Quinuclidinol;

    b.22. (C.A.S. #111-48-8) Thiodiglycol.

    c. Australia Group-controlled precursor chemicals also identified as Schedule 3 chemicals under the CWC, as follows, and mixtures in which at least one of the following chemicals constitutes 30 percent or more of the weight of the mixture:

    c.1. (C.A.S. #762-04-9) Diethyl phosphite;

    c.2. (C.A.S. #868-85-9) Dimethyl phosphite (dimethyl hydrogen phosphite);

    c.3. (C.A.S. #139-87-7) Ethyldiethanolamine;

    c.4. (C.A.S. #10025-87-3) Phosphorus oxychloride;

    c.5. (C.A.S. #10026-13-8) Phosphorus pentachloride;

    c.6. (C.A.S. #7719-12-2) Phosphorus trichloride;

    c.7. (C.A.S. #10545-99-0) Sulfur dichloride;

    c.8. (C.A.S. #10025-67-9) Sulfur monochloride;

    c.9. (C.A.S. #7719-09-7) Thionyl chloride;

    c.10. (C.A.S. #102-71-6) Triethanolamine;

    c.11. (C.A.S. #122-52-1) Triethyl phosphite;

    c.12. (C.A.S. #121-45-9) Trimethyl phosphite.

    d. Other Australia Group-controlled precursor chemicals not also identified as Schedule 1, 2, or 3 chemicals under the CWC, as follows, and mixtures in which at least one of the following chemicals constitutes 30 percent or more of the weight of the mixture:

    d.1. (C.A.S. #1341-49-7) Ammonium hydrogen fluoride;

    d.2. (C.A.S. #107-07-3) 2-Chloroethanol;

    d.3. (C.A.S. #109-89-7) Diethylamine;

    d.4. (C.A.S. #100-37-8) N,N-Diethylaminoethanol;

    d.5. (C.A.S. #298-06-6) O,O-Diethyl phosphorodithioate;

    d.6. (C.A.S. #2465-65-8) O,O-Diethyl phosphorothioate;

    d.7. (C.A.S. #108-18-9) Di-isopropylamine;

    d.8. (C.A.S. #124-40-3) Dimethylamine;

    d.9. (C.A.S. #506-59-2) Dimethylamine hydrochloride;

    d.10. (C.A.S. #7664-39-3) Hydrogen fluoride;

    d.11. (C.A.S. #3554-74-3) 3-Hydroxyl-1-methylpiperidine;

    d.12. (C.A.S. #76-89-1) Methyl benzilate;

    d.13. (C.A.S. #1314-80-3) Phosphorus pentasulfide;

    d.14. (C.A.S. #75-97-8) Pinacolone;

    d.15. (C.A.S. #7789-29-9) Potassium bifluoride;

    d.16. (C.A.S. #151-50-8) Potassium cyanide;

    d.17. (C.A.S. #7789-23-3) Potassium fluoride;

    d.18. (C.A.S. #3731-38-2) 3-Quinuclidone;

    d.19. (C.A.S. #1333-83-1) Sodium bifluoride;

    d.20. (C.A.S. #143-33-9) Sodium cyanide;

    d.21. (C.A.S. #7681-49-4) Sodium fluoride;

    d.22. (C.A.S. #16893-85-9) Sodium hexafluorosilicate;

    d.23. (C.A.S. #1313-82-2) Sodium sulfide;

    d.24. (C.A.S. #637-39-8) Triethanolamine hydrochloride;

    d.25. (C.A.S. #116-17-6) Tri-isopropyl phosphite.

    9. In Supplement No. 1 to Part 774 (the Commerce Control List), Category 1, ECCN 1C351 is revised to read as follows: 1C351 Human and animal pathogens and “toxins”, as follows (see List of Items Controlled). License Requirements Reason for Control: CB, CW, AT Control(s) Country chart (See Supp. No. 1 to part 738) CB applies to entire entry CB Column 1

    CW applies to 1C351.d.11 and d.12 and a license is required for CW reasons for all destinations, including Canada, as follows: CW applies to 1C351.d.11 for ricin in the form of (1) Ricinus Communis AgglutininII (RCAII), also known as ricin D or Ricinus Communis LectinIII (RCLIII) and (2) Ricinus Communis LectinIV (RCLIV), also known as ricin E. CW applies to 1C351.d.12 for saxitoxin identified by C.A.S. #35523-89-8. See § 742.18 of the EAR for licensing information pertaining to chemicals subject to restriction pursuant to the Chemical Weapons Convention (CWC). The Commerce Country Chart is not designed to determine licensing requirements for items controlled for CW reasons.

    Control(s) Country chart (See Supp. No. 1 to part 738) AT applies to entire entry AT Column 1

    License Requirement Notes: 1. All vaccines and “immunotoxins” are excluded from the scope of this entry. Certain medical products and diagnostic and food testing kits that contain biological toxins controlled under paragraph (d) of this entry, with the exception of toxins controlled for CW reasons under d.11 and d.12, are excluded from the scope of this entry. Vaccines, “immunotoxins”, certain medical products, and diagnostic and food testing kits excluded from the scope of this entry are controlled under ECCN 1C991.

    2. For the purposes of this entry, only saxitoxin is controlled under paragraph d.12; other members of the paralytic shellfish poison family (e.g., neosaxitoxin) are designated EAR99.

    3. Clostridium perfringens strains, other than the epsilon toxin-producing strains of Clostridium perfringens described in c.12, are excluded from the scope of this entry, since they may be used as positive control cultures for food testing and quality control.

    4. Unless specified elsewhere in this ECCN 1C351 (e.g., in License Requirement Notes 1-3), this ECCN controls all biological agents and “toxins,” regardless of quantity or attenuation, that are identified in the List of Items Controlled for this ECCN, including small quantities or attenuated strains of select biological agents or “toxins” that are excluded from the lists of select biological agents or “toxins” by the Animal and Plant Health Inspection Service (APHIS), U.S. Department of Agriculture, or the Centers for Disease Control and Prevention (CDC), U.S. Department of Health and Human Services, in accordance with their regulations in 9 CFR part 121 and 42 CFR part 73, respectively.

    5. Biological agents and pathogens are controlled under this ECCN 1C351 when they are an isolated live culture of a pathogen agent, or a preparation of a toxin agent that has been isolated or extracted from any source or material, including living material that has been deliberately inoculated or contaminated with the agent. Isolated live cultures of a pathogen agent include live cultures in dormant form or in dried preparations, whether the agent is natural, enhanced or modified.

    List Based License Exceptions (See Part 740 for a Description of All License Exceptions) LVS: N/A GBS: N/A CIV: N/A Special Conditions for STA

    STA: (1) Paragraph (c)(1) of License Exception STA (§ 740.20(c)(1)) may be used for items in 1C351.d.1 through 1C351.d.10 and 1C351.d.13 through 1C351.d.19. See § 740.20(b)(2)(vi) for restrictions on the quantity of any one toxin that may be exported in a single shipment and the number of shipments that may be made to any one end user in a single calendar year. Also see the Automated Export System (AES) requirements in § 758.1(b)(4) of the EAR. (2) Paragraph (c)(2) of License Exception STA (§ 740.20(c)(2) of the EAR) may not be used for any items in 1C351.

    List of Items Controlled

    Related Controls: (1) Certain forms of ricin and saxitoxin in 1C351.d.11. and d.12 are CWC Schedule 1 chemicals (see § 742.18 of the EAR). The U.S. Government must provide advance notification and annual reports to the OPCW of all exports of Schedule 1 chemicals. See § 745.1 of the EAR for notification procedures. See 22 CFR part 121, Category XIV and § 121.7 for CWC Schedule 1 chemicals that are “subject to the ITAR.” (2) The Animal and Plant Health Inspection Service (APHIS), U.S. Department of Agriculture, and the Centers for Disease Control and Prevention (CDC), U.S. Department of Health and Human Services, maintain controls on the possession, use, and transfer within the United States of certain items controlled by this ECCN (for APHIS, see 7 CFR 331.3(b), 9 CFR 121.3(b), and 9 CFR 121.4(b); for CDC, see 42 CFR 73.3(b) and 42 CFR 73.4(b)). (3) See 22 CFR part 121, Category XIV(b), for modified biological agents and biologically derived substances that are “subject to the ITAR.”

    Related Definitions: (1) For the purposes of this entry “immunotoxin” is defined as an antibody-toxin conjugate intended to destroy specific target cells (e.g., tumor cells) that bear antigens homologous to the antibody. (2) For the purposes of this entry “subunit” is defined as a portion of the “toxin”. Items:

    a. Viruses identified on the Australia Group (AG) “List of Human and Animal Pathogens and Toxins for Export Control,” as follows:

    a.1. African horse sickness virus;

    a.2. African swine fever virus;

    a.3. Andes virus;

    a.4. Avian influenza (AI) viruses identified as having high pathogenicity (HP), as follows:

    a.4.a. AI viruses that have an intravenous pathogenicity index (IVPI) in 6-week-old chickens greater than 1.2; or

    a.4.b. AI viruses that cause at least 75% mortality in 4- to 8-week-old chickens infected intravenously.

    Note:

    Avian influenza (AI) viruses of the H5 or H7 subtype that do not have either of the characteristics described in 1C351.a.4 (specifically, 1C351.a.4.a or a.4.b) should be sequenced to determine whether multiple basic amino acids are present at the cleavage site of the haemagglutinin molecule (HA0). If the amino acid motif is similar to that observed for other HPAI isolates, then the isolate being tested should be considered as HPAI and the virus is controlled under 1C351.a.4.

    a.5. Bluetongue virus;

    a.6. Chapare virus;

    a.7. Chikungunya virus;

    a.8. Choclo virus;

    a.9. Classical swine fever virus (Hog cholera virus);

    a.10. Crimean-Congo hemorrhagic fever virus;

    a.11. Dobrava-Belgrade virus;

    a.12. Eastern equine encephalitis virus;

    a.13. Ebolavirus (includes all members of the Ebolavirus genus);

    a.14. Foot-and-mouth disease virus;

    a.15. Goatpox virus;

    a.16. Guanarito virus;

    a.17. Hantaan virus;

    a.18. Hendra virus (Equine morbillivirus);

    a.19. Japanese encephalitis virus;

    a.20. Junin virus;

    a.21. Kyasanur Forest disease virus;

    a.22. Laguna Negra virus;

    a.23. Lassa virus;

    a.24. Louping ill virus;

    a.25. Lujo virus;

    a.26. Lumpy skin disease virus;

    a.27. Lymphocytic choriomeningitis virus;

    a.28. Machupo virus;

    a.29. Marburgvirus (includes all members of the Marburgvirus genus);

    a.30. Monkeypox virus;

    a.31. Murray Valley encephalitis virus;

    a.32. Newcastle disease virus;

    a.33. Nipah virus;

    a.34. Omsk hemorrhagic fever virus;

    a.35. Oropouche virus;

    a.36. Peste-des-petits ruminants virus;

    a.37. Porcine Teschovirus;

    a.38. Powassan virus;

    a.39. Rabies virus and all other members of the Lyssavirus genus;

    a.40. Reconstructed 1918 influenza virus;

    Technical Note: 1C351.a.40 includes reconstructed replication competent forms of the 1918 pandemic influenza virus containing any portion of the coding regions of all eight gene segments.

    a.41. Rift Valley fever virus;

    a.42. Rinderpest virus;

    a.43. Rocio virus;

    a.44. Sabia virus;

    a.45. Seoul virus;

    a.46. Severe acute respiratory syndrome-related coronavirus (SARS-related coronavirus);

    a.47. Sheeppox virus;

    a.48. Sin Nombre virus;

    a.49. St. Louis encephalitis virus;

    a.50. Suid herpesvirus 1 (Pseudorabies virus; Aujeszky's disease);

    a.51. Swine vesicular disease virus;

    a.52. Tick-borne encephalitis virus (Far Eastern subtype, formerly known as Russian Spring-Summer encephalitis virus—see 1C351.b.3 for Siberian subtype);

    a.53. Variola virus;

    a.54. Venezuelan equine encephalitis virus;

    a.55. Vesicular stomatitis virus;

    a.56. Western equine encephalitis virus; or

    a.57. Yellow fever virus.

    b. Viruses identified on the APHIS/CDC “select agents” lists (see Related Controls paragraph #2 for this ECCN), but not identified on the Australia Group (AG) “List of Human and Animal Pathogens and Toxins for Export Control,” as follows:

    b.1. [Reserved];

    b.2. [Reserved]; or

    b.3. Tick-borne encephalitis virus (Siberian subtype, formerly West Siberian virus—see 1C351.a.52 for Far Eastern subtype).

    c. Bacteria identified on the Australia Group (AG) “List of Human and Animal Pathogens and Toxins for Export Control,” as follows:

    c.1. Bacillus anthracis;

    c.2. Brucella abortus;

    c.3. Brucella melitensis;

    c.4. Brucella suis;

    c.5. Burkholderia mallei (Pseudomonas mallei);

    c.6. Burkholderia pseudomallei (Pseudomonas pseudomallei);

    c.7. Chlamydia psittaci (Chlamydophila psittaci);

    c.8. Clostriduim argentinense (formerly known as Clostridium botulinum Type G), botulinum neurotoxin producing strains;

    c.9. Clostridium baratii, botulinum neurotoxin producing strains;

    c.10. Clostridium botulinum;

    c.11. Clostridium butyricum, botulinum neurotoxin producing strains;

    c.12. Clostridium perfringens, epsilon toxin producing types;

    c.13. Coxiella burnetii;

    c.14. Francisella tularensis;

    c.15. Mycoplasma capricolum subspecies capripneumoniae (“strain F38”);

    c.16. Mycoplasma mycoides subspecies mycoides SC (small colony) (a.k.a. contagious bovine pleuropneumonia);

    c.17. Rickettsia prowazekii;

    c.18. Salmonella enterica subspecies enterica serovar Typhi (Salmonella typhi);

    c.19. Shiga toxin producing Escherichia coli (STEC) of serogroups O26, O45, O103, O104, O111, O121, O145, O157, and other shiga toxin producing serogroups;

    Note:

    Shiga toxin producing Escherichia coli (STEC) includes, inter alia, enterohaemorrhagic E. coli (EHEC), verotoxin producing E. coli (VTEC) or verocytotoxin producing E. coli (VTEC).

    c.20. Shigella dysenteriae;

    c.21. Vibrio cholerae; or

    c.22. Yersinia pestis.

    d. “Toxins” identified on the Australia Group (AG) “List of Human and Animal Pathogens and Toxins for Export Control,” as follows, and “subunits” thereof:

    d.1. Abrin;

    d.2. Aflatoxins;

    d.3. Botulinum toxins;

    d.4. Cholera toxin;

    d.5. Clostridium perfringens alpha, beta 1, beta 2, epsilon and iota toxins;

    d.6. Conotoxins;

    d.7. Diacetoxyscirpenol;

    d.8. HT-2 toxin;

    d.9. Microcystins (Cyanginosins);

    d.10. Modeccin;

    d.11. Ricin;

    d.12. Saxitoxin;

    d.13. Shiga toxins (shiga-like toxins, verotoxins, and verocytotoxins);

    d.14. Staphylococcus aureus enterotoxins, hemolysin alpha toxin, and toxic shock syndrome toxin (formerly known as Staphylococcus enterotoxin F);

    d.15. T-2 toxin;

    d.16. Tetrodotoxin;

    d.17. Viscumin (Viscum album lectin 1); or

    d.18. Volkensin.

    e. “Fungi”, as follows:

    e.1. Coccidioides immitis; or

    e.2. Coccidioides posadasii.

    10. In Supplement No. 1 to Part 774 (the Commerce Control List), Category 1, ECCN 1C353 is revised to read as follows: 1C353 Genetic elements and genetically modified organisms, as follows (see List of Items Controlled). License Requirements Reason for Control: CB, AT Control(s) Country Chart (See Supp. No. 1 to part 738) CB applies to entire entry CB Column 1 AT applies to entire entry AT Column 1

    License Requirements Notes: 1. Vaccines that contain genetic elements or genetically modified organisms identified in this ECCN are controlled by ECCN 1C991.

    2. Unless specified elsewhere in this ECCN 1C353 (e.g., in License Requirement Note 1), this ECCN controls genetic elements or genetically modified organisms for all biological agents and “toxins,” regardless of quantity or attenuation, that are identified in the List of Items Controlled for this ECCN, including genetic elements or genetically modified organisms for attenuated strains of select biological agents or “toxins” that are excluded from the lists of select biological agents or “toxins” by the Animal and Plant Health Inspection Service (APHIS), U.S. Department of Agriculture, or the Centers for Disease Control and Prevention (CDC), U.S. Department of Health and Human Services, in accordance with the APHIS regulations in 7 CFR part 331 and 9 CFR part 121 and the CDC regulations in 42 CFR part 73.

    List Based License Exceptions (See Part 740 for a Description of All License Exceptions) LVS: N/A GBS: N/A CIV: N/A List of Items Controlled Related Controls: (1) The Animal and Plant Health Inspection Service (APHIS), U.S. Department of Agriculture, and the Centers for Disease Control and Prevention (CDC), U.S. Department of Health and Human Services, maintain controls on the possession, use, and transfer within the United States of certain items controlled by this ECCN, including (but not limited to) certain genetic elements, recombinant nucleic acids, and recombinant organisms associated with the agents or toxins in ECCN 1C351 or 1C354 (for APHIS, see 7 CFR 331.3(c), 9 CFR 121.3(c), and 9 CFR 121.4(c); for CDC, see 42 CFR 73.3(c) and 42 CFR 73.4(c)). (2) See 22 CFR part 121, Category XIV(b), for modified biological agents and biologically derived substances that are subject to the export licensing jurisdiction of the U.S. Department of State, Directorate of Defense Trade Controls. Related Definition: N/A Items:

    a. Any genetically modified organism that contains, or any genetic element that codes for, any of the following:

    a.1. Any gene or genes specific to any virus controlled by 1C351.a or .b or 1C354.c;

    a.2. Any gene or genes specific to any bacterium controlled by 1C351.c or 1C354.a, or any fungus controlled by 1C351.e or 1C354.b, and which;

    a.2.a. In itself or through its transcribed or translated products represents a significant hazard to human, animal or plant health; or

    a.2.b. Could endow or enhance pathogenicity; or

    a.3. Any toxins, or their subunits, controlled by 1C351.d.

    b. [Reserved].

    Technical Notes: 1. Genetically modified organisms include organisms in which the nucleic acid sequences have been created or altered by deliberate molecular manipulation.

    2. “Genetic elements” include, inter alia, chromosomes, genomes, plasmids, transposons, vectors, and inactivated organisms containing recoverable nucleic acid fragments, whether genetically modified or unmodified, or chemically synthesized in whole or in part. For the purposes of this ECCN 1C353, nucleic acids from an inactivated organism, virus, or sample are considered to be `recoverable' if the inactivation and preparation of the material is intended or known to facilitate isolation, purification, amplification, detection, or identification of nucleic acids.

    3. This ECCN does not control nucleic acid sequences of shiga toxin producing Escherichia coli of serogroups O26, O45, O103, O104, O111, O121, O145, O157, and other shiga toxin producing serogroups, other than those genetic elements coding for shiga toxin, or for its subunits.

    4. `Endow or enhance pathogenicity' is defined as when the insertion or integration of the nucleic acid sequence or sequences is/are likely to enable or increase a recipient organism's ability to be used to deliberately cause disease or death. This might include alterations to, inter alia: virulence, transmissibility, stability, route of infection, host range, reproducibility, ability to evade or suppress host immunity, resistance to medical countermeasures, or detectability.

    11. In Supplement No. 1 to Part 774 (the Commerce Control List), Category 2, ECCN 2B350 is revised to read as follows: 2B350 Chemical manufacturing facilities and equipment, except valves controlled by 2A226, as follows (see List of Items Controlled). License Requirements Reason for Control: CB, AT Control(s) Country Chart (See Supp. No. 1 to part 738) CB applies to entire entry CB Column 2 AT applies to entire entry AT Column 1

    License Requirement Note: This ECCN does not control equipment that is both: (1) “Specially Designed” for use in civil applications e.g., food processing, pulp and paper processing, or water purification) and (2) inappropriate, by the nature of its design, for use in storing, processing, producing or conducting and controlling the flow of the chemical weapons precursors controlled by 1C350.

    List Based License Exceptions (See Part 740 for a Description of All License Exceptions) LVS: $2,000 for all Country Group B destinations, except those also listed under Country Group D:3 (see Supplement No. 1 to part 740 of the EAR). GBS: N/A CIV: N/A List of Items Controlled Related Controls: See also ECCNs 2A226, 2A992, 2A993, 2B231, and 2B999. Related Definitions: For purposes of this entry the term `chemical warfare agents' includes those agents “subject to the ITAR” (see 22 CFR parts 120 through 130). Items:

    a. Reaction vessels, reactors and prefabricated repair assemblies therefor, as follows:

    a.1. Reaction vessels or reactors, with or without agitators, with total internal (geometric) volume greater than 0.1 m3 (100 liters) and less than 20 m3 (20,000 liters), where all surfaces that come in direct contact with the chemical(s) being processed or contained are made from any of the following materials:

    a.1.a Alloys with more than 25% nickel and 20% chromium by weight;

    a.1.b. Nickel or alloys with more than 40% nickel by weight;

    a.1.c. Fluoropolymers (polymeric or elastomeric materials with more than 35% fluorine by weight);

    a.1.d. Glass (including vitrified or enameled coating or glass lining);

    a.1.e. Tantalum or tantalum alloys;

    a.1.f. Titanium or titanium alloys;

    a.1.g. Zirconium or zirconium alloys; or

    a.1.h. Niobium (columbium) or niobium alloys;

    a.2. Prefabricated repair assemblies, and their specially designed components, that:

    a.2.a. Are designed for mechanical attachment to glass-lined reaction vessels or reactors described in 2B350.a.1; and

    a.2.b. Have metallic surfaces that are made from tantalum or tantalum alloys and come in direct contact with the chemical(s) being processed.

    b. Agitators designed for use in reaction vessels or reactors described in 2B350.a.1, and impellers, blades or shafts designed for such agitators, where all surfaces that come in direct contact with the chemical(s) being processed or contained are made from any of the following materials:

    b.1. Alloys with more than 25% nickel and 20% chromium by weight;

    b.2. Nickel or alloys with more than 40% nickel by weight;

    b.3. Fluoropolymers (polymeric or elastomeric materials with more than 35% fluorine by weight);

    b.4. Glass (including vitrified or enameled coatings or glass lining);

    b.5. Tantalum or tantalum alloys;

    b.6. Titanium or titanium alloys;

    b.7. Zirconium or zirconium alloys; or

    b.8. Niobium (columbium) or niobium alloys.

    c. Storage tanks, containers, receivers and prefabricated repair assemblies therefor, as follows:

    c.1. Storage tanks, containers or receivers with a total internal (geometric) volume greater than 0.1 m3 (100 liters) where all surfaces that come in direct contact with the chemical(s) being processed or contained are made from any of the following materials:

    c.1.a. Alloys with more than 25% nickel and 20% chromium by weight;

    c.1.b. Nickel or alloys with more than 40% nickel by weight;

    c.1.c. Fluoropolymers (polymeric or elastomeric materials with more than 35% fluorine by weight);

    c.1.d. Glass (including vitrified or enameled coatings or glass lining);

    c.1.e. Tantalum or tantalum alloys;

    c.1.f. Titanium or titanium alloys;

    c.1.g. Zirconium or zirconium alloys; or

    c.1.h. Niobium (columbium) or niobium alloys;

    c.2. Prefabricated repair assemblies, and their specially designed components, that:

    c.2.a. Are designed for mechanical attachment to glass-lined storage tanks, containers or receivers described in 2B350.c.1; and

    c.2.b. Have metallic surfaces that are made from tantalum or tantalum alloys and come in direct contact with the chemical(s) being processed.

    d. Heat exchangers or condensers with a heat transfer surface area of less than 20 m2, but greater than 0.15 m2, and tubes, plates, coils or blocks (cores) designed for such heat exchangers or condensers, where all surfaces that come in direct contact with the chemical(s) being processed are made from any of the following materials:

    d.1. Alloys with more than 25% nickel and 20% chromium by weight;

    d.2. Nickel or alloys with more than 40% nickel by weight;

    d.3. Fluoropolymers (polymeric or elastomeric materials with more than 35% fluorine by weight);

    d.4. Glass (including vitrified or enameled coatings or glass lining);

    d.5. Tantalum or tantalum alloys;

    d.6. Titanium or titanium alloys;

    d.7. Zirconium or zirconium alloys;

    d.8. Niobium (columbium) or niobium alloys;

    d.9. Graphite or carbon-graphite;

    d.10. Silicon carbide; or

    d.11. Titanium carbide.

    e. Distillation or absorption columns of internal diameter greater than 0.1 m, and liquid distributors, vapor distributors or liquid collectors designed for such distillation or absorption columns, where all surfaces that come in direct contact with the chemical(s) being processed are made from any of the following materials:

    e.1. Alloys with more than 25% nickel and 20% chromium by weight;

    e.2. Nickel or alloys with more than 40% nickel by weight;

    e.3. Fluoropolymers (polymeric or elastomeric materials with more than 35% fluorine by weight);

    e.4. Glass (including vitrified or enameled coatings or glass lining);

    e.5. Tantalum or tantalum alloys;

    e.6. Titanium or titanium alloys;

    e.7. Zirconium or zirconium alloys;

    e.8. Niobium (columbium) or niobium alloys; or

    e.9. Graphite or carbon-graphite.

    f. Remotely operated filling equipment in which all surfaces that come in direct contact with the chemical(s) being processed are made from any of the following materials:

    f.1. Alloys with more than 25% nickel and 20% chromium by weight; or

    f.2. Nickel or alloys with more than 40% nickel by weight.

    g. Valves, as follows:

    g.1. Valves having both of the following characteristics:

    g.1.a. A nominal size greater than 1.0 cm (3/8 in.); and

    g.1.b. All surfaces that come in direct contact with the chemical(s) being produced, processed, or contained are made from materials identified in Technical Note 1 to 2B350.g.

    g.2. Valves, except for valves controlled by 2B350.g.1, having all of the following characteristics:

    g.2.a. A nominal size equal to or greater than 2.54 cm (1 inch) and equal to or less than 10.16 cm (4 inches);

    g.2.b. Casings (valve bodies) or preformed casing liners controlled by 2B350.g.3, in which all surfaces that come in direct contact with the chemical(s) being produced, processed, or contained are made from materials identified in Technical Note 1 to 2B350.g; and

    g.2.c. A closure element designed to be interchangeable.

    g.3. Casings (valve bodies) and preformed casing liners having both of the following characteristics:

    g.3.a. Designed for valves in 2B350.g.1 or .g.2; and

    g.3.b. All surfaces that come in direct contact with the chemical(s) being produced, processed, or contained are made from materials identified in Technical Note 1 to 2B350.g.

    Technical Note 1 to 2B350.g: All surfaces of the valves controlled by 2B350.g.1, and the casings (valve bodies) and preformed casing liners controlled by 2B350.g.3, that come in direct contact with the chemical(s) being produced, processed, or contained are made from the following materials:

    a. Alloys with more than 25% nickel and 20% chromium by weight;

    b. Nickel or alloys with more than 40% nickel by weight;

    c. Fluoropolymers (polymeric or elastomeric materials with more than 35% fluorine by weight);

    d. Glass (including vitrified or enameled coating or glass lining);

    e. Tantalum or tantalum alloys;

    f. Titanium or titanium alloys;

    g. Zirconium or zirconium alloys;

    h. Niobium (columbium) or niobium alloys; or

    i. Ceramic materials, as follows:

    i.1. Silicon carbide with a purity of 80% or more by weight;

    i.2. Aluminum oxide (alumina) with a purity of 99.9% or more by weight; or

    i.3. Zirconium oxide (zirconia).

    Technical Note 2 to 2B350.g: The `nominal size' is defined as the smaller of the inlet and outlet port diameters.

    h. Multi-walled piping incorporating a leak detection port, in which all surfaces that come in direct contact with the chemical(s) being processed or contained are made from any of the following materials:

    h.1. Alloys with more than 25% nickel and 20% chromium by weight;

    h.2. Nickel or alloys with more than 40% nickel by weight;

    h.3. Fluoropolymers (polymeric or elastomeric materials with more than 35% fluorine by weight);

    h.4. Glass (including vitrified or enameled coatings or glass lining);

    h.5. Tantalum or tantalum alloys;

    h.6. Titanium or titanium alloys;

    h.7. Zirconium or zirconium alloys;

    h.8. Niobium (columbium) or niobium alloys; or

    h.9. Graphite or carbon-graphite.

    i. Multiple-seal and seal-less pumps with manufacturer's specified maximum flow-rate greater than 0.6 m3/hour (600 liters/hour), or vacuum pumps with manufacturer's specified maximum flow-rate greater than 5 m3/hour (5,000 liters/hour) (under standard temperature (273 K (0 °C)) and pressure (101.3 kPa) conditions), and casings (pump bodies), preformed casing liners, impellers, rotors or jet pump nozzles designed for such pumps, in which all surfaces that come into direct contact with the chemical(s) being processed are made from any of the following materials:

    i.1. Alloys with more than 25% nickel and 20% chromium by weight;

    i.2. Nickel or alloys with more than 40% nickel by weight;

    i.3. Fluoropolymers (polymeric or elastomeric materials with more than 35% fluorine by weight);

    i.4. Glass (including vitrified or enameled coatings or glass lining);

    i.5. Tantalum or tantalum alloys;

    i.6. Titanium or titanium alloys;

    i.7. Zirconium or zirconium alloys;

    i.8. Niobium (columbium) or niobium alloys.

    i.9. Graphite or carbon-graphite;

    i.10. Ceramics; or

    i.11. Ferrosilicon (high silicon iron alloys).

    Technical Note to 2B350.i: The seals referred to in 2B350.i come into direct contact with the chemical(s) being processed (or are designed to do so), and provide a sealing function where a rotary or reciprocating drive shaft passes through a pump body.

    j. Incinerators designed to destroy chemical warfare agents, chemical weapons precursors controlled by 1C350, or chemical munitions having “specially designed” waste supply systems, special handling facilities and an average combustion chamber temperature greater than 1000 °C in which all surfaces in the waste supply system that come into direct contact with the waste products are made from or lined with any of the following materials:

    j.1. Alloys with more than 25% nickel and 20% chromium by weight;

    j.2. Nickel or alloys with more than 40% nickel by weight; or

    j.3. Ceramics.

    Technical Note 1: Carbon-graphite is a composition consisting primarily of graphite and amorphous carbon, in which the graphite is 8 percent or more by weight of the composition.

    Technical Note 2: For the items listed in 2B350, the term `alloy,' when not accompanied by a specific elemental concentration, is understood as identifying those alloys where the identified metal is present in a higher percentage by weight than any other element.

    Technical Note 3: The materials used for gaskets, packing, seals, screws or washers, or other materials performing a sealing function, do not determine the control status of the items in this ECCN, provided that such components are designed to be interchangeable.

    Note:

    See Categories V and XIV of the United States Munitions List for all chemicals that are “subject to the ITAR” (see 22 CFR parts 120 through 130).

    12. In Supplement No. 1 to Part 774 (the Commerce Control List), Category 2, ECCN 2B351 is revised to read as follows: 2B351 Toxic gas monitors and monitoring systems, and their dedicated detecting “parts” and “components” ( i.e., detectors, sensor devices, and replaceable sensor cartridges), as follows, except those systems and detectors controlled by ECCN 1A004.c (see List of Items Controlled). License Requirements Reason for Control: CB, AT Control(s) Country Chart (See Supp. No. 1 to part 738) CB applies to entire entry CB Column 2 AT applies to entire entry AT Column 1 List Based License Exceptions (See Part 740 for a Description of All License Exceptions) LVS: N/A GBS: N/A CIV: N/A List of Items Controlled Related Controls: See ECCN 2D351 for “software” for toxic gas monitors and monitoring systems, and their dedicated detecting “parts” and “components,” controlled by this ECCN. Also see ECCN 1A004, which controls chemical detection systems and “specially designed” “parts” and “components” therefor that are “specially designed” or modified for detection or identification of chemical warfare agents, but not “specially designed” for military use, and ECCN 1A995, which controls certain detection equipment, “parts” and “components” not controlled by ECCN 1A004 or by this ECCN. Related Definitions: (1) For the purposes of this entry, the term “dedicated” means committed entirely to a single purpose or device. (2) For the purposes of this entry, the term “continuous operation” describes the capability of the equipment to operate on line without human intervention. The intent of this entry is to control toxic gas monitors and monitoring systems capable of collection and detection of samples in environments such as chemical plants, rather than those used for batch-mode operation in laboratories. Items:

    a. Designed for continuous operation and usable for the detection of chemical warfare agents or precursor chemicals controlled by 1C350 at concentrations of less than 0.3 mg/m3; or

    b. Designed for the detection of cholinesterase-inhibiting activity.

    13. In Supplement No. 1 to Part 774 (the Commerce Control List), Category 2—Materials Processing, ECCN 2B352 is revised to read as follows: 2B352 Equipment capable of use in handling biological materials, as follows (see List of Items Controlled). License Requirements Reason for Control: CB, AT Control(s) Country Chart (See Supp. No. 1 to part 738) CB applies to entire entry CB Column 2 AT applies to entire entry AT Column 1 List Based License Exceptions (See Part 740 for a Description of All License Exceptions) LVS: N/A GBS: N/A CIV: N/A List of Items Controlled Related Controls: See ECCNs 1A004 and 1A995 for protective equipment that is not covered by this entry. Also see ECCN 9A120 for controls on certain “UAV” systems designed or modified to dispense an aerosol and capable of carrying elements of a payload in the form of a particulate or liquid, other than fuel “parts” or “components” of such vehicles, of a volume greater than 20 liters. Related Definitions: (1) “Lighter than air vehicles”—balloons and airships that rely on hot air or on lighter-than-air gases, such as helium or hydrogen, for their lift. (2) “UAVs”—Unmanned Aerial Vehicles. (3) “VMD”—Volume Median Diameter. Items:

    a. Containment facilities and related equipment, as follows:

    a.1. Complete containment facilities at P3 or P4 containment level.

    Technical Note: P3 or P4 (BL3, BL4, L3, L4) containment levels are as specified in the WHO Laboratory Biosafety Manual (3rd edition, Geneva, 2004).

    a.2. Equipment designed for fixed installation in containment facilities specified in paragraph a.1 of this ECCN, as follows:

    a.2.a. Double-door pass-through decontamination autoclaves;

    a.2.b. Breathing air suit decontamination showers;

    a.2.c. Mechanical-seal or inflatable-seal walkthrough doors.

    b. Fermenters and components as follows:

    b.1. Fermenters capable of cultivation of micro-organisms or of live cells for the production of viruses or toxins, without the propagation of aerosols, having a total internal volume of 20 liters or greater.

    b.2. Components designed for such fermenters, as follows:

    b.2.a. Cultivation chambers designed to be sterilized or disinfected in situ;

    b.2.b. Cultivation chamber holding devices; or

    b.2.c. Process control units capable of simultaneously monitoring and controlling two or more fermentation system parameters (e.g., temperature, pH, nutrients, agitation, dissolved oxygen, air flow, foam control).

    Technical Note: Fermenters include bioreactors (including single-use (disposable) bioreactors), chemostats and continuous-flow systems.

    c. Centrifugal separators capable of the continuous separation of pathogenic microorganisms, without the propagation of aerosols, and having all of the following characteristics:

    c.1. One or more sealing joints within the steam containment area;

    c.2. A flow rate greater than 100 liters per hour;

    c.3. “Parts” or “components” of polished stainless steel or titanium; and

    c.4. Capable of in-situ steam sterilization in a closed state.

    Technical Note: Centrifugal separators include decanters.

    d. Cross (tangential) flow filtration equipment and “accessories”, as follows:

    d.1. Cross (tangential) flow filtration equipment capable of separation of microorganisms, viruses, toxins or cell cultures having all of the following characteristics:

    d.1.a. A total filtration area equal to or greater than 1 square meter (1 m2); and

    d.1.b. Having any of the following characteristics:

    d.1.b.1. Capable of being sterilized or disinfected in-situ; or

    d.1.b.2. Using disposable or single-use filtration “parts” or “components”.

    N.B.: 2B352.d.1 does not control reverse osmosis and hemodialysis equipment, as specified by the manufacturer.

    d.2. Cross (tangential) flow filtration “parts” or “components” (e.g., modules, elements, cassettes, cartridges, units or plates) with filtration area equal to or greater than 0.2 square meters (0.2 m2) for each “part” or “component” and designed for use in cross (tangential) flow filtration equipment controlled by 2B352.d.1.

    Technical Note: In this ECCN, “sterilized” denotes the elimination of all viable microbes from the equipment through the use of either physical (e.g., steam) or chemical agents. “Disinfected” denotes the destruction of potential microbial infectivity in the equipment through the use of chemical agents with a germicidal effect. “Disinfection” and “sterilization” are distinct from “sanitization”, the latter referring to cleaning procedures designed to lower the microbial content of equipment without necessarily achieving elimination of all microbial infectivity or viability.

    e. Steam, gas or vapor sterilizable freeze-drying equipment with a condenser capacity of 10 kg of ice or greater in 24 hours (10 liters of water or greater in 24 hours) and less than 1000 kg of ice in 24 hours (less than 1,000 liters of water in 24 hours).

    f. Spray-drying equipment capable of drying toxins or pathogenic microorganisms having all of the following characteristics:

    f.1. A water evaporation capacity of ≥0.4 kg/h and ≤400 kg/h;

    f.2. The ability to generate a typical mean product particle size of ≤10 micrometers with existing fittings or by minimal modification of the spray-dryer with atomization nozzles enabling generation of the required particle size; and

    f.3. Capable of being sterilized or disinfected in situ.

    g. Protective and containment equipment, as follows:

    g.1. Protective full or half suits, or hoods dependant upon a tethered external air supply and operating under positive pressure.

    Technical Note: This entry does not control suits designed to be worn with self-contained breathing apparatus.

    g.2. Biocontainment chambers, isolators, or biological safety cabinets having all of the following characteristics, for normal operation:

    g.2.a. Fully enclosed workspace where the operator is separated from the work by a physical barrier;

    g.2.b. Able to operate at negative pressure;

    g.2.c. Means to safely manipulate items in the workspace; and

    g.2.d. Supply and exhaust air to and from the workspace is high-efficiency particulate air (HEPA) filtered.

    Note 1 to 2B352.g.2:

    2B352.g.2 controls class III biosafety cabinets, as specified in the WHO Laboratory Biosafety Manual (3rd edition, Geneva, 2004) or constructed in accordance with national standards, regulations or guidance.

    Note 2 to 2B352.g.2:

    2B352.g.2 does not control isolators “specially designed” for barrier nursing or transportation of infected patients.

    h. Aerosol inhalation equipment designed for aerosol challenge testing with microorganisms, viruses or toxins, as follows:

    h.1. Whole-body exposure chambers having a capacity of 1 cubic meter or greater;

    h.2. Nose-only exposure apparatus utilizing directed aerosol flow and having a capacity for the exposure of 12 or more rodents, or two or more animals other than rodents, and closed animal restraint tubes designed for use with such apparatus.

    i. Spraying or fogging systems and “parts” and “components” therefor, as follows:

    i.1. Complete spraying or fogging systems, “specially designed” or modified for fitting to aircraft, “lighter than air vehicles,” or “UAVs,” capable of delivering, from a liquid suspension, an initial droplet “VMD” of less than 50 microns at a flow rate of greater than 2 liters per minute;

    i.2. Spray booms or arrays of aerosol generating units, “specially designed” or modified for fitting to aircraft, “lighter than air vehicles,” or “UAVs,” capable of delivering, from a liquid suspension, an initial droplet “VMD” of less than 50 microns at a flow rate of greater than 2 liters per minute;

    i.3. Aerosol generating units “specially designed” for fitting to the systems as specified in paragraphs i.1 and i.2 of this ECCN.

    Technical Notes: 1. Aerosol generating units are devices “specially designed” or modified for fitting to aircraft and include nozzles, rotary drum atomizers and similar devices.

    2. This ECCN does not control spraying or fogging systems, “parts” and “components,” as specified in 2B352.i, that are demonstrated not to be capable of delivering biological agents in the form of infectious aerosols.

    3. Droplet size for spray equipment or nozzles “specially designed” for use on aircraft or “UAVs” should be measured using either of the following methods (pending the adoption of internationally accepted standards):

    a. Doppler laser method,

    b. Forward laser diffraction method.

    j. Nucleic acid assemblers and synthesizers that are both:

    j.1 Partly or entirely automated; and

    j.2. Designed to generate continuous nucleic acids greater than 1.5 kilobases in length with error rates less than 5% in a single run.

    14. In Supplement No. 1 to Part 774 (the Commerce Control List), Category 2, ECCN 2D351 is revised to read as follows: 2D351 Dedicated “software” for toxic gas monitors and monitoring systems, and their dedicated detecting “parts” and “components,” controlled by ECCN 2B351. License Requirements Reason for Control: CB, AT Control(s) Country Chart (See Supp. No. 1 to part 738) CB applies to entire entry CB Column 2 AT applies to entire entry AT Column 1 List Based License Exceptions (See Part 740 for a Description of All License Exceptions) CIV: N/A TSR: N/A List of Items Controlled Related Controls: N/A Related Definitions: (1) For the purposes of this entry, the term “dedicated” means committed entirely to a single purpose or device. (2) See Section 772.1 of the EAR for the definitions of “software,” “program,” and “microprogram.” Items: The list of items controlled is contained in the ECCN heading. Dated: March 27, 2018. Matthew S. Borman, Deputy Assistant Secretary for Export Administration.
    [FR Doc. 2018-06581 Filed 3-30-18; 8:45 am] BILLING CODE 3510-33-P
    SOCIAL SECURITY ADMINISTRATION 20 CFR Part 404 [Docket No. SSA-2018-0007] RIN 0960-AI18 Extension of Expiration Dates for Two Body System Listings AGENCY:

    Social Security Administration.

    ACTION:

    Final rule.

    SUMMARY:

    We are extending the expiration dates of the following body systems in the Listing of Impairments (listings) in our regulations: Special Senses and Speech and Congenital Disorders That Affect Multiple Body Systems. We are making no other revisions to these body systems in this final rule. This extension ensures that we will continue to have the criteria we need to evaluate impairments in the affected body systems at step three of the sequential evaluation processes for initial claims and continuing disability reviews.

    DATES:

    This final rule is effective on April 2, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Cheryl A. Williams, Director, Office of Medical Policy, 6401 Security Boulevard, Baltimore, MD 21235-6401, (410) 965-1020. For information on eligibility or filing for benefits, call our national toll-free number, 1-800-772-1213, or TTY 1-800-325-0778, or visit our internet site, Social Security Online, at http://www.socialsecurity.gov.

    SUPPLEMENTARY INFORMATION: Background

    We use the listings in appendix 1 to subpart P of part 404 of 20 CFR at the third step of the sequential evaluation process to evaluate claims filed by adults and children for benefits based on disability under the title II and title XVI programs.1 20 CFR 404.1520(d), 416.920(d), 416.924(d). The listings are in two parts: Part A has listings criteria for adults and Part B has listings criteria for children. If you are age 18 or over, we apply the listings criteria in Part A when we assess your impairment or combination of impairments. If you are under age 18, we first use the criteria in Part B of the listings when we assess your impairment(s). If the criteria in Part B do not apply, we may use the criteria in Part A when those criteria consider the effects of your impairment(s). 20 CFR 404.1525(b), 416.925(b).

    1 We also use the listings in the sequential evaluation processes we use to determine whether a beneficiary's disability continues. See 20 CFR 404.1594, 416.994, and 416.994a.

    Explanation of Changes

    In this final rule, we are extending the dates on which the listings for the following two body systems will no longer be effective as set out in the following chart:

    Listing Current expiration date Extended expiration date Special Senses and Speech (2.00 and 102.00) April 29, 2018 April 24, 2020. Congenital Disorders That Affect Multiple Body Systems (10.00 and 110.00) April 5, 2018 April 3, 2020.

    We continue to revise and update the listings on a regular basis, including those body systems not affected by this final rule.2 We intend to update the two listings affected by this final rule as quickly as possible, but may not be able to publish final rules revising these listings by the current expiration dates. Therefore, we are extending the expiration dates listed above.

    2 Since we last extended the expiration dates of the listings affected by this rule in August 2016 (81 FR 51100), we have published final rules revising the medical criteria for evaluating mental disorders (81 FR 66137 (2016)) and human immunodeficiency virus (HIV infection (81 FR 86915 (2016)).

    Regulatory Procedures Justification for Final Rule

    We follow the Administrative Procedure Act (APA) rulemaking procedures specified in 5 U.S.C. 553 in promulgating regulations. Section 702(a)(5) of the Social Security Act, 42 U.S.C. 902(a)(5). Generally, the APA requires that an agency provide prior notice and opportunity for public comment before issuing a final regulation. The APA provides exceptions to the notice-and-comment requirements when an agency finds there is good cause for dispensing with such procedures because they are impracticable, unnecessary, or contrary to the public interest.

    We have determined that good cause exists for dispensing with the notice and public comment procedures. 5 U.S.C. 553(b)(B). This final rule only extends the date on which two body system listings will no longer be effective. It makes no substantive changes to our rules. Our current regulations 3 provide that we may extend, revise, or promulgate the body system listings again. Therefore, we have determined that opportunity for prior comment is unnecessary, and we are issuing this regulation as a final rule.

    3 See the first sentence of appendix 1 to subpart P of part 404 of 20 CFR.

    In addition, for the reasons cited above, we find good cause for dispensing with the 30-day delay in the effective date of this final rule. 5 U.S.C. 553(d)(3). We are not making any substantive changes to the listings in these body systems. Without an extension of the expiration dates for these listings, we will not have the criteria we need to assess medical impairments in these two body systems at step three of the sequential evaluation processes. We therefore find it is in the public interest to make this final rule effective on the publication date.

    Executive Order 12866, as Supplemented by Executive Order 13563

    We consulted with the Office of Management and Budget (OMB) and determined that this final rule does not meet the requirements for a significant regulatory action under Executive Order 12866, as supplemented by Executive Order 13563. Therefore, OMB did not review it. We also determined that this final rule meets the plain language requirement of Executive Order 12866.

    Regulatory Flexibility Act

    We certify that this final rule does not have a significant economic impact on a substantial number of small entities because it affects only individuals. Therefore, a regulatory flexibility analysis is not required under the Regulatory Flexibility Act, as amended.

    Paperwork Reduction Act

    This final rule does not create any new or affect any existing collections and, therefore, it does not require OMB's approval under the Paperwork Reduction Act.

    (Catalog of Federal Domestic Assistance Program Nos. 96.001, Social Security-Disability Insurance; 96.002, Social Security-Retirement Insurance; 96.004, Social Security-Survivors Insurance; 96.006, Supplemental Security Income) List of Subjects in 20 CFR Part 404

    Administrative practice and procedure, Blind, Disability benefits, Old-age, Survivors and Disability Insurance, Reporting and recordkeeping requirements, Social Security.

    Nancy Berryhill, Deputy Commissioner for Operations, performing the duties and functions not reserved to the Commissioner of Social Security.

    For the reasons set out in the preamble, we are amending appendix 1 to subpart P of part 404 of chapter III of title 20 of the Code of Federal Regulations as set forth below.

    PART 404—FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE (1950-) Subpart P—[Amended] 1. The authority citation for subpart P of part 404 continues to read as follows: Authority:

    Secs. 202, 205(a)-(b) and (d)-(h), 216(i), 221(a) and (h)-(j), 222(c), 223, 225, and 702(a)(5) of the Social Security Act (42 U.S.C. 402, 405(a)-(b) and (d)-(h), 416(i), 421(a) and (h)-(j), 422(c), 423, 425, and 902(a)(5)); sec. 211(b), Pub. L. 104-193, 110 Stat. 2105, 2189; sec. 202, Pub. L. 108-203, 118 Stat. 509 (42 U.S.C. 902 note).

    2. Amend appendix 1 to subpart P of part 404 by revising items 3 and 11 of the introductory text before Part A to read as follows: Appendix 1 to Subpart P of Part 404—Listing of Impairments

    3. Special Senses and Speech (2.00 and 102.00): April 24, 2020.

    11. Congenital Disorders That Affect Multiple Body Systems (10.00 and 110.00): April 3, 2020.

    [FR Doc. 2018-06671 Filed 3-30-18; 8:45 am] BILLING CODE 4191-02-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Parts 890, 900, 1020, and 1040 [Docket No. FDA-2018-N-0011] Medical Devices; Technical Amendment AGENCY:

    Food and Drug Administration; HHS.

    ACTION:

    Final rule; technical amendment.

    SUMMARY:

    The Food and Drug Administration (FDA or Agency) is amending certain medical device regulations. This action is editorial in nature to correct typographical errors and to ensure accuracy and clarity in the Agency's regulations.

    DATES:

    This rule is effective April 2, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Karen Fikes, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 5244, Silver Spring, MD 20993-0002, 301-796-9603.

    SUPPLEMENTARY INFORMATION:

    FDA is amending our regulations in 21 CFR parts 890, 900, 1020, and 1040 to correct typographical errors and to update addresses, office titles, and wording to ensure accuracy and clarity in the Agency's medical device regulations.

    FDA is making nonsubstantive changes to the following regulations:

    1. FDA is revising § 890.5525(b)(2)(i)(A) by replacing “Testing using a drug approved for iontophoretic delivery, or a solution, if identified in the labeling, to demonstrate safe use of the device as intended” with “Testing using a drug approved for iontophoretic delivery, or a solution if identified in the labeling, to demonstrate safe use of the device as intended”.

    2. FDA is revising § 900.3(b)(1) by replacing “Division of Mammography Quality and Radiation Programs (DMQRP), Center for Devices and Radiology Health (HFZ-240), Food and Drug Administration, 1350 Piccard Dr., Rockville, MD 20850, marked Attn: Mammography Standards Branch” with “Division of Mammography Quality Standards, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 4445, Silver Spring, MD 20993, Attn: Program Management Branch”.

    3. FDA is revising § 900.11(b)(2)(i) by replacing “42 U.S.C. 263b(c)(2)” with “42 U.S.C. 263b(c)(4)”.

    4. FDA is revising § 1020.30(c) by replacing “Director of the Office of Communication, Education, and Radiation Programs of the Center for Devices and Radiological Health” with “Director, Center for Devices and Radiological Health”.

    5. FDA is revising § 1040.10(a)(3)(i) by replacing “Food and Drug Administration, Center for Devices and Radiological Health, Director, Office of Compliance, 10903 New Hampshire Ave., Bldg. 66, Rm. 3521, Silver Spring, MD 20993-0002” with “Director, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Silver Spring, MD 20993-0002”.

    6. FDA is revising § 1040.10(f)(6)(ii) by replacing “Director, Office of Compliance (HFZ-300), Center for Devices and Radiological Health” with “Director, Center for Devices and Radiological Health”.

    7. FDA is revising § 1040.10(g)(10) by replacing “Director, Office of Compliance (HFZ-300), Center for Devices and Radiological Health” with “Director, Center for Devices and Radiological Health”.

    8. FDA is revising § 1040.20(d)(3)(iii) by replacing “Director, Office of Communication, Education, and Radiation Programs 10903 New Hampshire Ave., Bldg. 66, Rm. 4312, Silver Spring, MD 20993-0002, Center for Devices and Radiological Health” with “Director, Center for Devices and Radiological Health”.

    9. FDA is revising § 1040.20(d)(3)(iv) by replacing “manfacturer” with “manufacturer,” and replacing “Director, Office of Compliance (HFZ-300), Center for Devices and Radiological Health” with “Director, Center for Devices and Radiological Health”.

    List of Subjects 21 CFR Part 890

    Medical devices, Physical medicine devices.

    21 CFR Part 900

    Electronic products, Health facilities, Medical devices, Radiation protection, Reporting and recordkeeping requirements, X-rays.

    21 CFR Part 1020

    Electronic products, Medical devices, Radiation protection, Reporting and recordkeeping requirements, Television, X-rays.

    21 CFR Part 1040

    Electronic funds transfers, Incorporation by reference, Labeling, Lasers, Medical devices, Radiation protection, Reporting and recordkeeping requirements.

    Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR parts 890, 900, 1020, and 1040 are amended as follows:

    PART 890—PHYSICAL MEDICINE DEVICES 1. The authority citation for part 890 continues to read as follows: Authority:

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

    2. Revise § 890.5525(b)(2)(i)(A) to read as follows:
    § 890.5525 Iontophoresis device.

    (b) * * *

    (2) * * *

    (i) * * *

    (A) Testing using a drug approved for iontophoretic delivery, or a solution if identified in the labeling, to demonstrate safe use of the device as intended;

    PART 900—MAMMOGRAPHY 3. The authority citation for part 900 continues to read as follows: Authority:

    21 U.S.C. 360i, 360nn, 374(e), 42 U.S.C. 263b.

    4. Revise § 900.3(b)(1) to read as follows:
    § 900.3 Application for approval as an accreditation body.

    (b) * * *

    (1) An applicant seeking initial FDA approval as an accreditation body shall inform the Division of Mammography Quality Standards, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 4445, Silver Spring, MD 20993, Attn: Program Management Branch, of its desire to be approved as an accreditation body and of its requested scope of authority.

    5. Revise § 900.11(b)(2)(i) to read as follows:
    § 900.11 Requirements for certification.

    (b) * * *

    (2) * * *

    (i) A new facility beginning operation after October 1, 1994, is eligible to apply for a provisional certificate. The provisional certificate will enable the facility to perform mammography and to obtain the clinical images needed to complete the accreditation process. To apply for and receive a provisional certificate, a facility must meet the requirements of 42 U.S.C. 263b(c)(4) and submit the necessary information to an approved accreditation body or other entity designated by FDA.

    PART 1020—PERFORMANCE STANDARDS FOR IONIZING RADIATION EMITTING PRODUCTS 6. The authority citation for part 1020 continues to read as follows: Authority:

    21 U.S.C. 351, 352, 360e-360j, 360hh-360ss, 371, 381.

    7. Revise § 1020.30(c) to read as follows:
    § 1020.30 Diagnostic x-ray systems and their major components.

    (c) Manufacturers' responsibility. Manufacturers of products subject to §§ 1020.30 through 1020.33 shall certify that each of their products meets all applicable requirements when installed into a diagnostic x-ray system according to instructions. This certification shall be made under the format specified in § 1010.2 of this chapter. Manufacturers may certify a combination of two or more components if they obtain prior authorization in writing from the Director, Center for Devices and Radiological Health. Manufacturers shall not be held responsible for noncompliance of their products if that noncompliance is due solely to the improper installation or assembly of that product by another person; however, manufacturers are responsible for providing assembly instructions adequate to assure compliance of their components with the applicable provisions of §§ 1020.30 through 1020.33.

    PART 1040—PERFORMANCE STANDARDS FOR LIGHT-EMITTING PRODUCTS 8. The authority citation for part 1040 continues to read as follows: Authority:

    21 U.S.C. 351, 352, 360, 360e-360j, 360hh-360ss, 371, 381.

    9. In § 1040.10 revise paragraphs (a)(3)(i), (f)(6)(ii), and (g)(10) to read as follows:
    § 1040.10 Laser products.

    (a) * * *

    (3) * * *

    (i) Registers, and provides a listing by type of such laser products manufactured that includes the product name, model number, and laser medium or emitted wavelength(s), and the name and address of the manufacturer. The manufacturer must submit the registration and listing to the Director, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Silver Spring, MD 20993-0002.

    (f) * * *

    (6) * * *

    (ii) If the configuration, design, or function of the laser product would make unnecessary compliance with the requirement in paragraph (f)(6)(i) of this section, the Director, Center for Devices and Radiological Health, may, upon written application by the manufacturer, approve alternate means to accomplish the radiation protection provided by the beam attenuator.

    (g) * * *

    (10) Label specifications. Labels required by this section and § 1040.11 shall be permanently affixed to, or inscribed on, the laser product, legible, and clearly visible during operation, maintenance, or service, as appropriate. If the size, configuration, design, or function of the laser product would preclude compliance with the requirements for any required label or would render the required wording of such label inappropriate or ineffective, the Director, Center for Devices and Radiological Health, on the Director's own initiative or upon written application by the manufacturer, may approve alternate means of providing such label(s) or alternate wording for such label(s) as applicable.

    10. In § 1040.20 revise paragraphs (d)(3)(iii) and (iv) to read as follows:
    § 1040.20 Sunlamp products and ultraviolet lamps intended for use in sunlamp products.

    (d) * * *

    (3) * * *

    (iii) If the size, configuration, design, or function of the sunlamp product or ultraviolet lamp would preclude compliance with the requirements for any required label or would render the required wording of such label inappropriate or ineffective, or would render the required label unnecessary, the Director, Center for Devices and Radiological Health, on the center's own initiative or upon written application by the manufacturer, may approve alternate means of providing such label(s), alternate wording for such label(s), or deletion, as applicable.

    (iv) In lieu of permanently affixing or inscribing tags or labels on the ultraviolet lamp as required by §§ 1010.2(b) and 1010.3(a), the manufacturer of the ultraviolet lamp may permanently affix or inscribe such required tags or labels on the lamp packaging uniquely associated with the lamp, if the name of the manufacturer and month and year of manufacture are permanently affixed or inscribed on the exterior surface of the ultraviolet lamp so as to be legible and readily accessible to view. The name of the manufacturer and month and year of manufacture affixed or inscribed on the exterior surface of the lamp may be expressed in code or symbols, if the manufacturer has previously supplied the Director, Center for Devices and Radiological Health, with the key to such code or symbols and the location of the coded information or symbols on the ultraviolet lamp. The label or tag affixed or inscribed on the lamp packaging may provide either the month and year of manufacture without abbreviation, or information to allow the date to be readily decoded.

    Dated: March 22, 2018. Leslie Kux, Associate Commissioner for Policy.
    [FR Doc. 2018-06308 Filed 3-30-18; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG-2018-0110] Drawbridge Operation Regulation; Hackensack River, Jersey City, New Jersey AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of deviation from drawbridge regulation.

    SUMMARY:

    The Coast Guard has issued a temporary deviation from the operating schedule that governs the PATH Bridge across the Hackensack River, mile 3.0, at Jersey City, New Jersey. This temporary deviation is necessary to allow the bridge to remain in the closed-to-navigation position to facilitate the replacement of rails and timbers across the length of the span of the bridge.

    DATES:

    This deviation is effective from 12:01 a.m. on March 31, 2018, to 12:01 a.m. on September 26, 2018.

    ADDRESSES:

    The docket for this deviation, USCG-2018-0110 is available at http://www.regulations.gov. Type the docket number in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this deviation.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this temporary deviation, call or email Judy Leung-Yee, Project Officer, First Coast Guard District, telephone 212-514-4330, email [email protected]

    SUPPLEMENTARY INFORMATION:

    The Port Authority Trans-Hudson Corporation, the owner of the bridge, requested a temporary deviation from the normal operating schedule to facilitate the replacement of rails and timbers across the length of the span of the bridge. The PATH Bridge across the Hackensack River, mile 3.0, has a vertical clearance in the closed position of 40 feet at mean high water and 45 feet at mean low water. The existing bridge operating regulations are listed at 33 CFR 117.723(b).

    Under this temporary deviation, the PATH Bridge shall remain in the closed position between 12:01 a.m. Saturday and 12:01 a.m. Monday as follows: March 31-April 2, 2018; April 7-9, 14-16, 21-23, and 28-30, 2018; May 5-7, 12-14, and 19-21, 2018; June 2-4, 9-11, 16-18, 23-25, and 30-July 2, 2018; July 7-9, 14-16, 21-23, and 28-30, 2018; August 4-6, 11-13, 18-20, and 25-27, 2018; September 8-10, 15-17, 22-24, 2018.

    The waterway is transited by commercial and recreational traffic. The Coast Guard notified known companies of the commercial vessels that transit the area, including the Sandy Hook Pilots and the local Tug/Tow Committee; there were no objections to this temporary deviation. Vessels able to pass under the bridge in the closed position may do so at any time. The bridge will not be able to open for emergencies and there is no immediate alternate route for vessels to pass.

    The Coast Guard will inform the users of the waterways through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessel operations can arrange their transits to minimize any impact caused by the temporary deviation.

    In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the effective period of this temporary deviation. This deviation from the operating regulations is authorized under 33 CFR 117.35.

    Dated: March 27, 2018. Christopher J. Bisignano, Supervisory Bridge Management Specialist, First Coast Guard District.
    [FR Doc. 2018-06540 Filed 3-30-18; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG-2018-0253] Drawbridge Operation Regulation; Lake Washington Ship Canal, Seattle, WA AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of deviation from drawbridge regulation.

    SUMMARY:

    The Coast Guard has issued a temporary deviation from the operating schedule that governs the Fremont Bridge, mile 2.6, and the University Bridge, mile 4.3, both crossing the Lake Washington Ship Canal at Seattle, WA. The deviation is necessary to accommodate the Tenacious Ten run event. This deviation allows the bridges to remain in the closed-to-navigation position to allow for the safe movement of event participants.

    DATES:

    This deviation is effective from 8 a.m. to 10:15 a.m. on April 21, 2018.

    ADDRESSES:

    The docket for this deviation, USCG-2018-0253 is available at http://www.regulations.gov. Type the docket number in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this deviation.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this temporary deviation, call or email Mr. Steven Fischer, Bridge Administrator, Thirteenth Coast Guard District; telephone 206-220-7282, email [email protected]

    SUPPLEMENTARY INFORMATION:

    The Seattle Department of Transportation, bridge owner, requested a temporary deviation from the operating schedule for the Fremont Bridge, mile 2.6, and the University Bridge, mile 4.3, both crossing the Lake Washington Ship Canal at Seattle, WA, to facilitate safe passage of participants in the Tenacious Ten run event. The Fremont Bridge provides a vertical clearance of 14 feet (31 feet of vertical clearance for the center 36 horizontal feet) in the closed-to-navigation position. The University Bridge provides a vertical clearance of 30 feet in the closed-to-navigation position. Both bridge clearances are referenced to the mean water elevation of Lake Washington. The normal operating schedule for both the Fremont Bridge and the University Bridge is in 33 CFR 117.1051. During this deviation period, the Fremont Bridge need not open to marine vessels from 8:15 a.m. to 10:15 a.m. on April 21, 2018, and the University Bridge need not open to marine vessel from 8 a.m. to 8:30 a.m. on April 21, 2018. Waterway usage on the Lake Washington Ship Canal ranges from commercial tug and barge to small pleasure craft.

    Vessels able to pass through the bridges in the closed-to-navigation positions may do so at any time. Both bridges will be able to open for emergencies, and there is no immediate alternate route for vessels to pass. The Coast Guard will also inform the users of the waterway through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessels can arrange their transits to minimize any impact caused by the temporary deviation.

    In accordance with 33 CFR 117.35(e), both drawbridges must return to their regular operating schedule immediately at the end of the designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35.

    Dated: March 21, 2018. Steven M. Fischer, Bridge Administrator, Thirteenth Coast Guard District.
    [FR Doc. 2018-06562 Filed 3-30-18; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG-2018-0195] Drawbridge Operation Regulation; Willamette River at Portland, OR AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of deviation from drawbridge regulation.

    SUMMARY:

    The Coast Guard has issued a temporary deviation from the operating schedule that governs the Hawthorne Bridge across the Willamette River, mile 13.1, at Portland, OR. The deviation is necessary to accommodate the Walk MS Portland event. This deviation authorizes the bridge to remain in the closed-to-navigation position to allow safe roadway movement of event participants.

    DATES:

    This deviation is effective from 9 a.m. to 11:30 a.m. on April 7, 2018.

    ADDRESSES:

    The docket for this deviation, USCG-2018-0195 is available at http://www.regulations.gov. Type the docket number in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this deviation.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this temporary deviation, call or email Mr. Steven Fischer, Bridge Administrator, Thirteenth Coast Guard District; telephone 206-220-7282, email [email protected]

    SUPPLEMENTARY INFORMATION:

    Multnomah County, the bridge owner, has requested a temporary deviation from the operating schedule for the Hawthorne Bridge across the Willamette River, mile 13.1, at Portland, OR. The requested deviation is to accommodate the Walk MS Portland event. To facilitate this event, the draw of the subject bridge will be allowed to remain in the closed-to-navigation position and need not open to marine traffic from 7 a.m. to 11:30 on April 7, 2018. The Hawthorne Bridge provides a vertical clearance of 49 feet in the closed-to-navigation position referenced to the vertical clearance above Columbia River Datum 0.0. The normal operating schedule is in 33 CFR 117.897(c)(3(v). Waterway usage on this part of the Willamette River includes vessels ranging from commercial tug and barge to small pleasure craft. The Coast Guard requested objections to this deviation from local mariners via the Local Notice Mariners, and email. No objections were submitted to the Coast Guard.

    Vessels able to pass through the bridge in the closed-to-navigation position may do so at any time. The bridge will be able to open for emergencies, and there is no immediate alternate route for vessels to pass. The Coast Guard will inform the users of the waterway, through our Local and Broadcast Notices to Mariners, of the change in operating schedule for the bridge so that vessel operators can arrange their transits to minimize any impact caused by the temporary deviation.

    In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the effective period of this temporary deviation. This deviation from the operating regulations is authorized under 33 CFR 117.35.

    Dated: March 8, 2018. Steven M. Fischer, Bridge Administrator, Thirteenth Coast Guard District.
    [FR Doc. 2018-06561 Filed 3-30-18; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG-2018-0122] Drawbridge Operation Regulation; Sacramento River, Sacramento, CA AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of deviation from drawbridge regulation.

    SUMMARY:

    The Coast Guard has issued a temporary deviation from the operating schedule that governs the Tower Drawbridge across the Sacramento River, mile 59.0 at Sacramento, CA. The deviation is necessary to allow the local community to participate in the Sactown Run 10-mile and 5K races. This deviation allows the bridge to remain in the closed-to-navigation position during the deviation period.

    DATES:

    This deviation is effective from 5 a.m. to 11:30 a.m. on April 8, 2018.

    ADDRESSES:

    The docket for this deviation, USCG-2018-0122, is available at http://www.regulations.gov. Type the docket number in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this deviation.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this temporary deviation, call or email Carl T. Hausner, Chief, Bridge Section, Eleventh Coast Guard District; telephone 510-437-3516, email [email protected]

    SUPPLEMENTARY INFORMATION:

    The California Department of Transportation has requested a temporary change to the operation of the Tower Drawbridge, mile 59.0, over the Sacramento River, at Sacramento, CA. The drawbridge navigation span provides a vertical clearance of 30 feet above Mean High Water in the closed-to-navigation position. The draw operates as required by 33 CFR 117.189(a). Navigation on the waterway is commercial and recreational.

    The drawspan will be secured in the closed-to-navigation position 5 a.m. to 11:30 a.m. on April 8, 2018, to allow the community to participate in the Sactown Run 10 mile and 5K races. This temporary deviation has been coordinated with the waterway users. No objections to the proposed temporary deviation were raised.

    Vessels able to pass through the bridge in the closed position may do so at any time. The bridge will be able to open for emergencies and there is no immediate alternate route for vessels to pass. The Coast Guard will also inform the users of the waterway through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessel operators can arrange their transits to minimize any impact caused by the temporary deviation.

    In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the effective period of this temporary deviation. This deviation from the operating regulations is authorized under 33 CFR 117.35.

    Dated: March 19, 2018. Carl T. Hausner, District Bridge Chief, Eleventh Coast Guard District.
    [FR Doc. 2018-06536 Filed 3-30-18; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG-2018-0200] Drawbridge Operation Regulation; Willamette River, Portland, OR AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of deviation from drawbridge regulation.

    SUMMARY:

    The Coast Guard has issued a temporary deviation from the operating schedule that governs the lower deck of the Steel Bridge across the Willamette River, mile 12.1, in Portland, OR. The deviation is necessary to support the Bridge to Brews run event. This deviation allows the upper lift span of the bridge to remain in the closed-to-navigation position to ensure the safety of event participants.

    DATES:

    This deviation is effective from 8:30 a.m. to 10:45 a.m. on April 15, 2018.

    ADDRESSES:

    The docket for this deviation, USCG-2018-0200, is available at http://www.regulations.gov. Type the docket number in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this deviation.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this temporary deviation, call or email Mr. Steven Fischer, Bridge Administrator, Thirteenth Coast Guard District; telephone 206-220-7282, email [email protected]

    SUPPLEMENTARY INFORMATION:

    Union Pacific Railroad Company (UPRR) owns and operates the Steel Bridge across the Willamette River, at mile 12.1, in Portland, OR. UPRR has requested a temporary deviation from the operating schedule for the Steel Bridge upper lift span. The deviation is necessary to accommodate the annual Bridge to Brews run event. The Steel Bridge is a double-deck lift bridge, and the lower lift span operates independent of the upper lift span. To facilitate this temporary deviation request, the upper lift span is authorized to remain in the closed-to-navigation position, and need not open to marine vessels from 8:30 a.m. to 10:45 a.m. on April 15, 2018. When the lower span is in the closed-to-navigation position, the bridge provides 26 feet of vertical clearance above Columbia River Datum 0.0. When the upper span is in the closed-to-navigation position, and the lower span is in the open-to-navigation position, the vertical clearance is 71 feet above Columbia River Datum 0.0. The lower lift span of the Steel Bridge operates in accordance with 33 CFR 117.5.

    Waterway usage on this part of the Willamette River includes vessels ranging from commercial tug and barge to small pleasure craft. Vessels able to pass through the subject bridge with the lower deck in the closed-to-navigation position, or in the open-to-navigation position may do so at any time. The lower and upper lift of the Steel Bridge will be able to open for emergencies, and there is no immediate alternate route for vessels to pass. The Coast Guard requested objections to this deviation be submitted to the Local Notice to Mariners. We have not received any objections to this temporary deviation from the operating schedule. The Coast Guard will also inform the users of the waterway through our Local and Broadcast Notices to Mariners of the change in operating schedule for the subject bridge so that vessel operators can arrange their transits to minimize any impact caused by the temporary deviation.

    In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35.

    Dated: March 13, 2018. Steven M. Fischer, Bridge Administrator, Thirteenth Coast Guard District.
    [FR Doc. 2018-06534 Filed 3-30-18; 8:45 am] BILLING CODE 9110-04-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R09-OAR-2017-0680; FRL-9975-65—Region 9] Approval of California Air Plan Revisions, Yolo-Solano Air Quality Management District AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is taking final action to approve a revision to the Yolo-Solano Air Quality Management District (YSAQMD) portion of the California State Implementation Plan (SIP). This revision concerns emissions of volatile organic compounds (VOCs) from organic liquid storage and transfer operations. We are approving a local rule that regulates these emission sources under the Clean Air Act (CAA or the Act).

    DATES:

    This rule will be effective on May 2, 2018.

    ADDRESSES:

    The EPA has established a docket for this action under Docket ID No. EPA-R09-OAR-2017-0680. All documents in the docket are listed on the http://www.regulations.gov website. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy form. Publicly available docket materials are available through http://www.regulations.gov, or please contact the person identified in the FOR FURTHER INFORMATION CONTACT section for additional availability information.

    FOR FURTHER INFORMATION CONTACT:

    Rebecca Newhouse, EPA Region IX, (415) 972-3004, newho[email protected]

    SUPPLEMENTARY INFORMATION:

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

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

    On January 9, 2018 (83 FR 1001), the EPA proposed to approve the following rule into the California SIP.

    Local agency Rule # Rule Title Revised Submitted YSAQMD 2.21 Organic Liquid Storage and Transfer 09/14/16 01/24/17

    We proposed to approve this rule based on a determination that it satisfies the applicable CAA requirements. Our proposed action contains more information on the rule and our evaluation.

    II. Public Comments

    The EPA's proposed action provided a 30-day public comment period. During this period, we received one public comment that fails to identify any specific issue that is germane to our action on the rule. The comment letter is available in the docket for this rulemaking.

    III. EPA Action

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

    IV. Incorporation by Reference

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

    V. Statutory and Executive Order Reviews

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    List of Subjects in 40 CFR Part 52

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

    Dated: March 2, 2018. Alexis Strauss, Acting Regional Administrator, Region IX.

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

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

    42 U.S.C. 7401 et seq.

    Subpart F—California 2. Section 52.220 is amended by adding paragraphs (c)(342)(i)(A)(2) and (c)(497)(i)(D) to read as follows:
    § 52.220 Identification of plan-in part.

    (c) * * *

    (342) * * *

    (i) * * *

    (A) * * *

    (2) Previously approved on October 31, 2006 in paragraph (c)(342)(i)(A)(1) of this section and now deleted with replacement in paragraph (c)(497)(i)(D)(1) of this section, Rule 2.21 amended on September 14, 2005.

    (497) * * *

    (i) * * *

    (D) Yolo-Solano Air Quality Management District.

    (1) Rule 2.21, “Organic Liquid Storage and Transfer,” revised on September 14, 2016.

    [FR Doc. 2018-06558 Filed 3-30-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R09-OAR-2017-0140; FRL-9975-66—Region 9] Approval of California Air Plan Revisions, San Diego County Air Pollution Control District AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is taking final action to approve revisions to the San Diego County Air Pollution Control District (SDCAPCD) portion of the California State Implementation Plan (SIP). These revisions concern volatile organic compound (VOC) emissions from polyester resin operations. We are approving a local rule to regulate these emission sources, as well as a rule rescission, under the Clean Air Act (CAA or “the Act”).

    DATES:

    This rule will be effective on May 2, 2018.

    ADDRESSES:

    The EPA has established a docket for this action under Docket ID No. EPA-R09-OAR-2017-0140. All documents in the docket are listed on the http://www.regulations.gov website. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy form. Publicly available docket materials are available through http://www.regulations.gov, or please contact the person identified in the FOR FURTHER INFORMATION CONTACT section for additional availability information.

    FOR FURTHER INFORMATION CONTACT:

    Arnold Lazarus, EPA Region IX, (415) 972-3024, [email protected]

    SUPPLEMENTARY INFORMATION:

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

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

    On December 20, 2017, the EPA proposed to approve the following rule and rule rescission into the California SIP (82 FR 60348).

    Table 1 lists the rules addressed by this action with the date that they were adopted and repealed by the local air agency, and submitted by the California Air Resources Board (CARB).

    Table 1—Submitted Rules Local agency Rule No. Rule title Adopted/
  • amended
  • Repealed/
  • rescinded
  • Submitted
    SDCAPCD 67.12 Polyester Resin Operations 5/15/1996 5/11/2016 8/22/2016 SDCAPCD 67.12.1 Polyester Resin Operations 5/11/2016 8/22/2016

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

    II. Public Comments

    The EPA's proposed action provided a 30-day public comment period. During this period, we received seven comments. Commenters generally raised issues that are outside the scope of this rulemaking, including bird and bat deaths associated with wind and solar facilities, the regulation of wildfire risks and emissions from wildfires, and the study of hydraulic fracturing and drinking water. One commenter supported the regulation of emissions from polyester resin operations, and one commenter wrote that “I do not want to repeal the regulations of air pollution.” The EPA notes that it proposed to approve the rescission of SDCAPCD Rule 67.12, while simultaneously proposing to approve its replacement: Rule 67.12.1. The EPA's Technical Support Document, included in the docket for this action, contains the EPA's evaluation, including a SIP relaxation analysis, detailing the EPA's proposed conclusion that the rescission of Rule 67.12 and its replacement with Rule 67.12.1 met the requirements of the Act.

    The EPA is required to approve a state submittal if the submittal meets all applicable requirements. 42 U.S.C. 7410(k)(3). The submitted comments either fail to identify any specific issue that is germane to our action, or they do not change our assessment of the SDCAPCD Polyester Resin Operations Rule as described in our proposed action and supporting documents.

    III. EPA Action

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

    IV. Incorporation by Reference

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

    V. Statutory and Executive Order Reviews

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Ozone, Particulate matter, Reporting and recordkeeping requirements, Volatile organic compounds.

    Dated: March 6, 2018. Alexis Strauss, Acting Regional Administrator, Region IX.

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

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

    42 U.S.C. 7401 et seq.

    Subpart F—California 2. Section 52.220 is amended by adding paragraphs (c)(241)(i)(A)(7) and (c)(488)(i)(A)(2) to read as follows:
    § 52.220 Identification of plan-in part.

    (c) * * *

    (241) * * *

    (i) * * *

    (A) * * *

    (7) Previously approved on March 27, 1997 in paragraph (c)(241)(i)(A)(1) of this section and now deleted with replacement by Rule 67.12.1 in paragraph (c)(488)(i)(A)(2) of this section, Rule 67.12, “Polyester Resin Operations,” adopted on May 15, 1996.

    (488) * * *

    (i) * * *

    (A) * * *

    (2) Rule 67.12.1, “Polyester Resin Operations,” adopted and effective on May 11, 2016.

    [FR Doc. 2018-06559 Filed 3-30-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R09-OAR-2017-0737; FRL-9976-08—Region 9] Approval of California Air Plan Revisions, Northern Sierra Air Quality Management District AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is taking final action to approve a revision to the Northern Sierra Air Quality Management District (NSAQMD) portion of the California State Implementation Plan (SIP). This revision concerns emissions of particulate matter (PM) from wood burning devices. We are approving a local measure to reduce emissions from these emission sources under the Clean Air Act (CAA or the Act).

    DATES:

    This rule will be effective on May 2, 2018.

    ADDRESSES:

    The EPA has established a docket for this action under Docket ID No. EPA-R09-OAR-2017-0737. All documents in the docket are listed on the http://www.regulations.gov website. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy form. Publicly available docket materials are available through http://www.regulations.gov, or please contact the person identified in the FOR FURTHER INFORMATION CONTACT section for additional availability information.

    FOR FURTHER INFORMATION CONTACT:

    Rynda Kay, EPA Region IX, (415) 947-4118, [email protected]

    SUPPLEMENTARY INFORMATION:

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

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

    On December 27, 2017 (82 FR 61203), the EPA proposed to approve the following measure into the California SIP.

    Local agency Resolution No. Measure title Adopted Submitted NSAQMD 2017-01 Northern Sierra Air Quality Management District Resolution #2017-01 01/23/17 02/28/17

    We proposed to approve this rule based on a determination that it satisfies the applicable CAA requirements. Our proposed action contains more information on the measure and our evaluation.

    II. Public Comments

    The EPA's proposed action provided a 30-day public comment period. During this period, we received three public comments that fail to identify any specific issue that is germane to our action on the rule. Two of these comments identify issues that are outside of the scope of this rulemaking, including forest management, wildfire suppression, and greenhouse-gas and other emissions from wildfires. The third comment fails to identify any specific issue. The comment letters are available in the docket for this rulemaking.

    III. EPA Action

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

    IV. Incorporation by Reference

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

    V. Statutory and Executive Order Reviews

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    List of Subjects in 40 CFR Part 52

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

    Dated: March 9, 2018. Alexis Strauss, Acting Regional Administrator, Region IX.

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

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

    42 U.S.C. 7401 et seq.

    Subpart F—California 2. Section 52.220 is amended by adding paragraph (c)(500) to read as follows:
    § 52.220 Identification of plan-in part.

    (c) * * *

    (500) The following plan was submitted on February 28, 2017 by the Governor's designee.

    (i) Incorporation by reference. (A) Northern Sierra Air Quality Management District.

    (1) Northern Sierra Air Quality Management District Resolution #2017-01, adopted January 23, 2017.

    [FR Doc. 2018-06538 Filed 3-30-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R04-OAR-2017-0389; FRL-9976-20—Region 4] Air Plan Approval; KY: Removal of Reliance on Reformulated Gasoline in the Kentucky Portion of the Cincinnati-Hamilton Area AGENCY:

    Environmental Protection Agency.

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is approving a State Implementation Plan (SIP) revision submitted on September 13, 2017, by the Commonwealth of Kentucky, through the Kentucky Division for Air Quality (KDAQ) in support of the Commonwealth's separate petition requesting that EPA remove the federal reformulated gasoline (RFG) requirements for Boone, Campbell, and Kenton counties in the Kentucky portion of the Cincinnati-Hamilton, Ohio-Kentucky-Indiana 2008 8-hr ozone maintenance area (hereinafter referred to as the “Northern Kentucky Area” or “Area”). The SIP revision revises the Commonwealth's maintenance plan emissions inventory and associated motor vehicle emissions budgets (MVEBs), for years 2020 and 2030, to remove reliance on emissions reductions from the federal RFG program requirements, a program that the Commonwealth voluntarily opted into in 1995. The SIP revision also includes a non-interference demonstration evaluating whether removing reliance on the RFG requirements in the Northern Kentucky Area would interfere with the requirements of the Clean Air Act (CAA or Act). EPA is approving this SIP revision and the corresponding non-interference demonstration because EPA determined that the revision is consistent with the applicable provisions of the CAA. Please note that this final rule does not remove the federal RFG requirement. On April 18, 2017, Kentucky's Energy and Environment Cabinet submitted a separate petition to the EPA Administrator requesting to opt-out of the federal RFG program in the Northern Kentucky Area, and the Administrator will act on that petition in the near future.

    DATES:

    This rule will be effective April 2, 2018.

    ADDRESSES:

    EPA has established a docket for this action under Docket Identification No. No. EPA-R04-OAR-2017-0389 at http://www.regulations.gov. All documents in the docket are listed on the www.regulations.gov website. Although listed in the index, some information is not publicly available, i.e., Confidential Business Information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through www.regulations.gov or in hard copy at the Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW, Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday 8:30 a.m. to 4:30 p.m., excluding Federal holidays.

    FOR FURTHER INFORMATION CONTACT:

    Dianna Myers, Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, Region 4, U.S. Environmental Protection Agency, 61 Forsyth Street, SW, Atlanta, Georgia 30303-8960. Ms. Myers can be reached via telephone at (404) 562-9207 or via electronic mail at [email protected]

    SUPPLEMENTARY INFORMATION: I. What is the Background for this final action?

    The Northern Kentucky Area was included in the Cincinnati-Hamilton Area, which was originally designated as a moderate nonattainment area for the 1-hour ozone standard on November 6, 1991 (56 FR 56694). In 1995, Kentucky voluntarily opted into the RFG program under Phase I of a two-phase nationwide program to reduce the volatility of commercial gasoline during the summer ozone season. Kentucky elected to stay in the program under Phase II which was more stringent than Phase I.

    On July 18, 1997, EPA promulgated a revised 8-hour ozone standard of 0.08 parts per million (ppm). This standard was more stringent than the 1-hour ozone standard. On June 19, 2000 (65 FR 37879), the Cincinnati-Hamilton 1-hour nonattainment Area was redesignated as attainment for the 1-hour ozone NAAQS, and was considered to be a maintenance area subject to a CAA section 175A maintenance plan for the 1-hour ozone NAAQS. On April 30, 2004, EPA designated the Cincinnati-Hamilton OH-KY-IN Area under subpart 1 as a “basic” 1997 8-hour ozone NAAQS nonattainment area (69 FR 23857).1 On August 5, 2010 (75 FR 47218), the Kentucky portion of the Cincinnati-Hamilton 1997 8-hour ozone area was redesignated to attainment.

    1 The 1997 8-hour ozone area included in its entirety Boone, Campbell, and Kenton Counties in Kentucky and Butler, Clermont, Clinton, Hamilton and Warren Counties in Ohio; and a portion of Dearborn County in Indiana.

    On March 12, 2008, EPA revised both the primary and secondary NAAQS for ozone to a level of 0.075 ppm to provide increased protection of public health and the environment. See 73 FR 16436 (March 27, 2008). The 2008 ozone NAAQS retains the same general form and averaging time as the 0.08 ppm NAAQS set in 1997, but is set at a more protective level. Under EPA's regulations at 40 CFR part 50, the 2008 8-hour ozone NAAQS is attained when the 3-year average of the annual fourth highest daily maximum 8-hour average ambient air quality ozone concentrations is less than or equal to 0.075 ppm. See 40 CFR 50.15.

    Effective July 20, 2012, EPA designated any area that was violating the 2008 8-hour ozone NAAQS based on the three most recent years (2008-2010) of air monitoring data as a nonattainment area. See 77 FR 30088 (May 21, 2012). The Cincinnati-Hamilton, OH-KY-IN Area was designated as a marginal ozone nonattainment area. See 40 CFR 81.318. Areas that were designated as marginal nonattainment areas were required to attain the 2008 8-hour ozone NAAQS as expeditiously as possible but no later than July 20, 2015, based on 2012-2014 monitoring data. On May 4, 2016 (81 FR 26697), EPA published its determination that the Cincinnati-Hamilton, OH-KY-IN Area had attained the 2008 8-hour ozone NAAQS by the attainment deadline.

    On August 26, 2016, Kentucky submitted a 2008 8-hour ozone redesignation request and maintenance plan for the Cincinnati-Hamilton Area, which EPA approved on July 5, 2017 (82 FR 30976).2 With its redesignation request, Kentucky included a maintenance demonstration plan that estimated emissions through 2030 that modeled RFG because Kentucky previously opted into the RFG program.

    2 The Cincinnati-Hamilton, OH-KY-IN Area is composed of portions of Boone, Campbell, and Kenton Counties in Kentucky; Butler, Clermont, Clinton, Hamilton and Warren Counties in Ohio; and a portion of Dearborn County in Indiana. This action only pertains to the Kentucky portion of the maintenance area.

    In a September 13, 2017, SIP revision submittal, KDAQ updated the mobile (on-road and non-road) emissions inventory for the August 26, 2016, maintenance plan (including the MVEBs) to reflect Kentucky's petition (see below) to opt-out of the RFG requirements for Boone, Campbell, and Kenton counties in the Northern Kentucky Area. The updates were summarized in KDAQ's submittal. On April 18, 2017, Kentucky's Energy and Environment Cabinet submitted a petition to the EPA Administrator requesting to opt-out of the federal RFG program in the Northern Kentucky Area, and as stated above, the September 13, 2017, SIP revision was submitted in support of that petition (particularly the requirements of 40 CFR 80.72(b)(3) and (4)). Kentucky's opt-out petition will be acted on by the Administrator in a separate action, and if approved in that separate action, will establish the effective date of the opt-out. EPA's RFG regulations require that the opt-out cannot become effective less than 90 days from the effective date of this final action. EPA will also publish a notice in the Federal Register to notify the public of the approval and effective date of the opt-out (See 40 CFR 80.72(c)(7) and (d).)

    In a notice of proposed rulemaking (NPRM) published on February 14, 2018 (83 FR 6496), EPA proposed to approve the September 13, 2017, SIP revision. The Agency did not receive any adverse comments on the NPRM.

    II. Revised MVEBs

    EPA is approving the changes in the September 13, 2017, SIP revision which includes updating the 2008 maintenance plan 2020 and 2030 MVEBs. The same criteria used to develop the MVEBs in the August 26, 2016, maintenance SIP are used for this SIP revision. The revised MVEBs for nitrogen oxides (NOX) and volatile organic compounds (VOC) are outlined in Table 1 below.

    3 The safety margin is the difference between the attainment level of emissions (from all sources) and the projected level of emissions (from all sources) in the maintenance plan. KDAQ chose to allocate a total of 2.24 tpd to the available NOX safety margin and a total 0.74 tons per day of the available VOC safety margin. The transportation conformity rule provides for establishing safety margins for use in transportation conformity determinations. (See 40 CFR 93.124(a).)

    Table 1—MVEBs for the Kentucky Portion of Cincinnati-Hamilton, OH-KY-IN Area [Tons per summer day] 2020 NOX VOC 2030 NOX VOC On-Road Emissions 8.42 4.17 3.56 2.31 Safety Margin 3 0.61 0.19 1.63 .55 MVEBs with Safety Margin 9.03 4.36 5.19 2.86 III. Final Action

    EPA is approving Kentucky's September 13, 2017, SIP revision seeking to revise the maintenance plan emissions inventory and associated MVEBs for years 2020 and 2030 to remove reliance on emissions reductions from the federal RFG program requirements; a program that the Commonwealth voluntarily opted into in 1995. The SIP revision also includes a non-interference demonstration evaluating whether removing reliance on the RFG requirements in the Northern Kentucky Area would interfere with the requirements of the CAA. Within 24 months from this final rule, the transportation partners will need to demonstrate conformity to the new NOX and VOC MVEBs pursuant to 40 CFR 93.104(e)(3). For analysis years 2020 through 2029, the new 2020 MVEBs will be used, and for analysis years 2030 and beyond, the new 2030 MVEBs will be used.

    In accordance with 5 U.S.C. 553(d), EPA finds that there is good cause for this action to become effective immediately upon publication. This is because a delayed effective date is unnecessary because this action approves a SIP revision and noninterference demonstration that serves as the basis of a subsequent action to relieve the Area from certain CAA requirements that would otherwise apply to it. The immediate effective date for this action is authorized under both 5 U.S.C. 553(d)(1), which provides that rulemaking actions may become effective less than 30 days after publication if the rule grants or recognizes an exemption or relieves a restriction, and section 553(d)(3), which allows an effective date less than 30 days after publication as otherwise provided by the agency for good cause found and published with the rule. The purpose of the 30-day waiting period prescribed in section 553(d) is to give affected parties a reasonable time to adjust their behavior and prepare before the final rule takes effect. This rule however, does not create any new regulatory requirements such that affected parties would need time to prepare before the rule takes effect. Rather, this rule will serve as a basis for a subsequent action to relieve the Area from certain CAA requirements. For these reasons, EPA finds good cause under 5 U.S.C. 553(d)(3) for this action to become effective on the date of publication of this action.

    IV. Statutory and Executive Order Reviews

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

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

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

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

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

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

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

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

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

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

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

    The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

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

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

    List of Subjects in 40 CFR Part 52

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

    Authority:

    42 U.S.C. 7401 et seq.

    Dated: March 21, 2018. Onis “Trey” Glenn, III, Regional Administrator, Region 4.

    40 CFR part 52 is amended as follows:

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

    42.U.S.C. 7401 et seq.

    Subpart S—Kentucky
    2. Section 52.920(e) is amended by adding an entry for “Removal of Reliance on Reformulated Gasoline in the Kentucky portion of the Cincinnati-Hamilton, OH-KY-IN Area” at the end of the table to read as follows:
    § 52.920 Identification of plan.

    (e) * * *

    EPA-Approved Kentucky Non-Regulatory Provisions Name of non-regulatory SIP
  • provision
  • Applicable geographic or
  • nonattainment area
  • State
  • submittal date/effective date
  • EPA approval date Explanations
    *         *         *         *         *         *         * Removal of Reliance on Reformulated Gasoline in the Kentucky portion of the Cincinnati-Hamilton, OH-KY-IN Area Boone, Campbell and Kenton Counties (Kentucky portion of the Cincinnati-Hamilton Area) 09/13/17 4/2/2018 [Insert citation of publication]
    [FR Doc. 2018-06557 Filed 3-30-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R04-OAR-2017-0500; FRL-9976-17—Region 4] Air Plan Approval; Florida; Stationary Sources Emissions Monitoring AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is taking final action to approve a portion of a State Implementation Plan (SIP) revision submitted by the State of Florida, through the Florida Department of Environmental Protection (FDEP) on February 1, 2017, for the purpose of revising Florida's requirements and procedures for emissions monitoring at stationary sources. Specifically, Florida's February 1, 2017, SIP submittal includes amendments to three Florida Administrative Code (F.A.C.) rule sections, as well as the removal of one F.A.C. rule section from the Florida SIP, in order to eliminate redundant language and make updates to the requirements for emissions monitoring at stationary sources. Additionally, this action includes a correction to remove an additional F.A.C. rule that was previously approved by EPA for removal from the SIP but was never removed. This action is being taken pursuant to the Clean Air Act (CAA or Act).

    DATES:

    This rule is effective May 2, 2018.

    ADDRESSES:

    EPA has established a docket for this action under Docket Identification No. EPA-R04-OAR-2017-0500. All documents in the docket are listed on the www.regulations.gov website. Although listed in the index, some information is not publicly available, i.e., Confidential Business Information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through www.regulations.gov or in hard copy at the Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW, Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday 8:30 a.m. to 4:30 p.m., excluding Federal holidays.

    FOR FURTHER INFORMATION CONTACT:

    Andres Febres, Air Regulatory Management Section, Air Planning and Implementation Branch, Pesticides and Toxics Management Division, Region 4, U.S. Environmental Protection Agency, 61 Forsyth Street SW, Atlanta, Georgia 30303-8960. The telephone number is (404) 562-8966. Mr. Febres can also be reached via electronic mail at [email protected]

    SUPPLEMENTARY INFORMATION:

    I. What actions is EPA taking today?

    On February 1, 2017, FDEP submitted to EPA for approval a SIP revision for the purpose of updating Florida's requirements and procedures for emissions monitoring at stationary sources. Florida's February 1, 2017, SIP revision includes amendments to three F.A.C. rule sections and the removal of one F.A.C. rule section from the Florida SIP. Specifically, these changes to Florida's rules include the amendments of Rule 62-297.310, F.A.C.—“General Emissions Test Requirement;” Rule 62-297.440, F.A.C.—“Supplementary Test Procedures;” and Rule 62-297.450, F.A.C.—“EPA VOC Capture Efficiency Test Procedures.” In addition, Florida's February 1, 2017, SIP submittal includes the removal of one of Florida's rule sections from the SIP. Specifically, Florida requested to remove Rule 62-297.401, F.A.C.—“Compliance Test Methods” from the State's implementation plan because it has been repealed at the state level, and, according to the submittal, the section is unnecessary, obsolete or duplicative of other F.A.C. Rules.

    Through this rulemaking, EPA is finalizing approval of the portions of Florida's February 1, 2017, SIP revision regarding amendments to Rule 62-297.440, F.A.C., and Rule 62-297.450, F.A.C., as well as the removal of Rules 62-297.401, F.A.C., from the State's implementation plan. The portion of the SIP regarding Rule 62-297.310 was previously approved in a separate rulemaking, which approved several SIP amendments making administrative and recodification changes to Florida's SIP. See 82 FR 46682 (October 6, 2017).

    In addition to the removal of Rule 62-297.401, F.A.C., EPA is removing Rule 62-297.400, F.A.C.—“EPA Methods Adopted by Reference” from the Florida SIP. The removal of this rule section was previously approved by EPA, but was never reflected in Florida's SIP-approved rules table in 40 CFR 52.520(c). For more detail on the approval to remove Rule 62-297.400, F.A.C., see the June 16, 1999, rulemaking (64 FR 32346).

    II. Background

    On October 13, 2017, EPA published a proposed rulemaking (82 FR 47662), which accompanied a direct final rulemaking (82 FR 47636) published on the same date. The proposed rule proposed to approve the portion of Florida's February 1, 2017 SIP revision described above. It also stated that if EPA received adverse comment on the direct final rule, the direct final rule would be withdrawn and all public comments received would be addressed in a subsequent final rule based on the proposed rule. EPA received 11 comments on the direct final rule, 10 of which were not relevant to the action. However, one of those comments was adverse. As a result, the direct final rule was subsequently withdrawn. After considering the adverse comment, EPA is now taking final action, based on the proposed rule, on the portion of Florida's February 1, 2017 SIP revision described above.

    III. Analysis of Florida's Submittal

    As stated in the proposed rule (82 FR 47662), a detailed rationale for EPA's approval of the above-described portions of Florida's February 1, 2017 SIP revision is set forth in the preamble to the direct final rule (82 FR 47636). In summary, EPA is approving amendments to Rule 62-297.440, F.A.C. that remove several subsections which contain test methods that are either adopted by reference in other rule sections or are now obsolete. EPA is approving amendments to Rule 62-297.450, F.A.C. because the changes clarify and simplify the language in the rule, and are consistent with EPA's VOC capture efficiency test procedure guidelines, as established in the agency's GD-035 guideline. EPA is approving the removal of Rule 62-297.401, F.A.C. from Florida's SIP because the requirements are still in place in other state rules and is unnecessary. Finally, EPA is removing Rule 62-297.400, F.A.C. from Florida's SIP because removal was previously approved by EPA, but was never reflected in Florida's SIP-approved rules table in 40 CFR 52.520(c).

    IV. Response to Comments

    Comment: As mentioned above, EPA received one adverse public comment on the direct final rule published on October 13, 2017. The comment is available for public viewing as a part of the electronic docket for this rulemaking.1 In summary, the Commenter requested EPA to take additional public comments on these SIP revisions because the information in the docket was not fully accessible to the public during the initial comment period for this action. A second portion of the comment was not relevant to the action being taken by EPA.

    1See Docket Identification No. EPA-R04-OAR-2017-0500 at www.regulations.gov.

    Response: EPA subsequently made the state submittals and related materials fully accessible to the public in the electronic docket, and on December 14, 2017 (82 FR 58790), reopened the comment period for the proposed rule that accompanied the now withdrawn direct final rule. In the rulemaking reopening the comment period, EPA explained that it would accept public comments until January 16, 2018, and that it would address any comments received in a separate final action based on the proposed action published on October 13, 2017 (82 FR 47662). During the reopened comment period from December 14, 2017, until January 16, 2018, EPA received an additional 12 comments, but those comments were not relevant. The 12 additional comments are included in the electronic docket for this action.

    V. Incorporation by Reference

    In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of Rule 62-297.440, F.A.C., entitled “Supplementary Test Procedures” and Rule 62-297.450, F.A.C., entitled “EPA VOC Capture Efficiency Test Procedures,” both state effective on July 19, 2014. EPA has made, and will continue to make, these materials generally available through www.regulations.gov and/or at the EPA Region 4 Office (please contact the person identified in the “For Further Information Contact” section of this preamble for more information). Therefore, these materials have been approved by EPA for inclusion in the SIP, have been incorporated by reference by EPA into that plan, are fully federally-enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference by the Director of the Federal Register in the next update to the SIP compilation.2

    2 62 FR 27968 (May 22, 1997).

    VI. Final Action

    EPA is finalizing approval of the above mentioned changes to the Florida SIP, as submitted to us in Florida's February 1, 2017, SIP revision. Specifically, EPA is approving the amendments to Rule 62-297.440, F.A.C., and Rule 62-297.450, F.A.C., both state effective on July 19, 2014, as well as the removal of Rule 62-297.401, F.A.C., from Florida's SIP. In addition, EPA is removing Rule 62-297.400, F.A.C., from Florida's SIP as approved in a previous rulemaking.3 This action is limited to the two rule revisions and two rule removals mentioned above and does not act on the portion of the February 1, 2017, SIP submittal regarding Rule 62-297.310. As mentioned in Section I above, the changes to Rule 62-297.310, were previously approved in a separate rulemaking. See 82 FR 46682 (October 6, 2017).

    3See Section III of this rulemaking for details on Rule 62-297.400.

    VII. Statutory and Executive Order Reviews

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

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

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

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

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

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

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

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

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

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

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

    The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

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

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

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

    Dated: March 15, 2018. Onis “Trey” Glenn, III, Regional Administrator, Region 4.

    40 CFR part 52 is amended as follows:

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

    42 U.S.C. 7401 et seq.

    Subpart K—Florida 2. In § 52.520 paragraph (c) is amended under “Chapter 62-297 Stationary Sources—Emissions Monitoring” by: a. Removing the entries for “62-297.400” and “62-297.401;” and b. Revising the entries for “62-297.440” and “62-297.450” to read as follows:
    § 52.520 Identification of plan.

    (c) * * *

    EPA-Approved Florida Regulations State citation
  • (section)
  • Title/subject State
  • effective
  • date
  • EPA approval date Explanation
    *         *         *         *         *         *         * Chapter 62-297 Stationary Sources—Emissions Monitoring *         *         *         *         *         *         * 62-297.440 Supplementary Test Procedures 7/10/2014 4/2/2018 [Insert citation of publication] 62-297.450 EPA VOC Capture Efficiency Test Procedures 7/10/2014 4/2/2018, [Insert citation of publication] *         *         *         *         *         *         *
    [FR Doc. 2018-06542 Filed 3-30-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 62 [EPA-R03-OAR-2017-0570; FRL-9976-31—Region 3] Approval and Promulgation of Air Quality Implementation Plans; State of Maryland; Control of Emissions From Existing Commercial and Industrial Solid Waste Incinerator Units AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is taking final action to approve a negative declaration for existing commercial and industrial solid waste incineration (CISWI) units within the State of Maryland. This negative declaration certifies that CISWI units subject to the requirements of sections 111(d) and 129 of the Clean Air Act (CAA) do not exist within the jurisdictional boundaries of the State of Maryland. EPA is accepting the negative declaration in accordance with the requirements of the CAA.

    DATES:

    This rule is effective on May 2, 2018.

    ADDRESSES:

    EPA has established a docket for this action under Docket ID No. EPA-R03-OAR-2017-0570. All documents in the docket are listed on the http://www.regulations.gov website. Although listed in the index, some information is not publicly available, e.g., confidential business information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy form. Publicly available docket materials are available through http://www.regulations.gov, or please contact the person identified in the For Further Information Contact section for additional availability information.

    FOR FURTHER INFORMATION CONTACT:

    Mike Gordon, (215) 814-2039, or by email at [email protected]

    SUPPLEMENTARY INFORMATION: I. Background

    Sections 111(d) and 129 of the CAA require states to submit plans to control certain pollutants (designated pollutants) at existing solid waste combustor facilities (designated facilities) whenever standards of performance have been established under section 111(b) for new sources of the same type, and EPA has established emission guidelines (EG) for such existing sources. CAA section 129 directs EPA to establish standards of performance for new sources and emissions guidelines for existing sources for each category of solid waste incineration unit. CAA section 129(a) and (b). According to section 129(a)(4) of the CAA, EPA also must specify numerical emissions limitations for particulate matter (total and fine), opacity (as appropriate), sulfur dioxide, hydrogen chloride, oxides of nitrogen, carbon monoxide, lead, cadmium, mercury, and dioxins and dibenzofurans.

    If a state fails to submit a satisfactory plan, the CAA provides EPA the authority to prescribe a plan for regulating the designated pollutants at the designated facilities. EPA prescribed plan, also known as a federal plan, is often delegated to states with designated facilities but no EPA approved state-specific plan. If no such designated facilities exist within a state's jurisdiction, a state may submit to the EPA a letter of certification to that effect (referred to as a negative declaration) in lieu of a state plan to satisfy the state's obligation. 40 CFR 60.23(b) and 62.06. A negative declaration exempts the state from the requirement to submit a CAA section 111(d)/section 129 plan for that designated pollutant and source category. 40 CFR 60.23(b).

    II. State Submittal and EPA Analysis

    The Maryland Department of the Environment (MDE) has determined that there are no existing CISWI units subject to the requirements of sections 111(d) and 129 of the CAA in its respective air pollution control jurisdiction. Accordingly, MDE submitted a negative declaration letter to EPA certifying this fact on January 20, 2017. A notice of proposed rulemaking was published in the Federal Register on February 1, 2018 (83 FR 4621). EPA received three comments during the public comment that were not specific nor related to this action and thus are not addressed here. The negative declaration letter and EPA's notice of proposed rulemaking are available in the docket for this rulemaking and online at www.regulations.gov.

    III. Final Action

    In this final action, EPA is approving the negative declaration for CISWI units submitted by MDE on January 20, 2017 and amending part 62 to reflect receipt of the negative declaration and subsequent approval by EPA. EPA is accepting the negative declaration in accordance with the requirements of the CAA and 40 CFR 60.23(b) and 62.06.

    IV. Statutory and Executive Order Reviews A. General Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely notifies the public of EPA receipt of a negative declaration from an air pollution control agency without any existing CISWI units in their jurisdiction. This action imposes no requirements. Accordingly, EPA certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this action does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This action also does not have tribal implications because it will 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, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves the negative declaration for existing CISWI units from the MDE and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This action also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

    With regard to negative declarations for designated facilities received by EPA from states, EPA's role is to notify the public of the receipt of such negative declarations and revise 40 CFR part 62 accordingly. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to approve or disapprove a CAA section 111(d)/129 plan negative declaration submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a CAA section 111(d)/129 negative declaration, to use VCS in place of a section 111(d)/129 negative declaration that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

    B. Submission to Congress and the Comptroller General

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

    C. Petitions for Judicial Review

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

    List of Subjects in 40 CFR Part 62

    Environmental protection, Administrative practice and procedure, Air pollution control, Intergovernmental relations, Reporting and recordkeeping requirements, Waste treatment and disposal.

    Dated: March 22, 2018. Cecil Rodrigues, Acting Regional Administrator, Region III.

    40 CFR part 62 is amended as follows:

    PART 62—APPROVAL AND PROMULGATION OF STATE PLANS FOR DESIGNATED FACILITIES AND POLLUTANTS 1. The authority citation for part 62 continues to read as follows: Authority:

    42 U.S.C. 7401 et seq.

    Subpart V—Maryland 2. Revise § 62.5127 to read as follows:
    § 62.5127 Identification of plan—negative declaration.

    (a) May 12, 2005 Maryland Department of the Environment letter certifying that existing CISWI units, subject to 40 CFR part 60, subpart DDDD, have been permanently shut down and have been dismantled in the state.

    (b) Letter from the State of Maryland, Department of the Environment, submitted January 20, 2017, certifying that there are no existing commercial/industrial solid waste incineration units within the State of Maryland that are subject to 40 CFR part 60, subpart DDDD.

    [FR Doc. 2018-06653 Filed 3-30-18; 8:45 am] BILLING CODE 6560-50-P
    83 63 Monday, April 2, 2018 Proposed Rules FEDERAL DEPOSIT INSURANCE CORPORATION 12 CFR Part 325 RIN 3064-AE73 Annual Stress Test—Applicability Transition for Covered Banks With $50 Billion or More in Assets; Technical and Conforming Changes AGENCY:

    Federal Deposit Insurance Corporation.

    ACTION:

    Proposed rule.

    SUMMARY:

    The Federal Deposit Insurance Corporation (FDIC) proposes to make several revisions to its stress testing regulation. Consistent with changes already made by the Board of Governors of the Federal Reserve System (Board) and the Office of the Comptroller of the Currency (OCC) to their respective stress testing regulations, the proposed rule would change the transition process for covered banks that become over $50 billion covered banks. Under the proposed rule, a covered bank that becomes an over $50 billion covered bank on or before September 30 would become subject to the requirements applicable to an over $50 billion covered bank beginning on January 1 of the second calendar year after the covered bank becomes an over $50 billion covered bank. A covered bank that becomes an over $50 billion covered bank after September 30 would become subject to the requirements applicable to an over $50 billion covered bank beginning on January 1 of the third calendar year after the covered bank becomes an over $50 billion covered bank. The proposed rule would also change the range of possible “as-of” dates used in the trading and counterparty position data stress testing component. Lastly, the proposed rule would make certain technical changes to clarify the requirements of the FDIC's stress testing regulation, and to eliminate obsolete provisions.

    DATES:

    Comments must be received on or before June 1, 2018.

    ADDRESSES:

    Interested parties are encouraged to submit written comments. Commenters are encouraged to use the title “Annual Stress Test— Applicability Transition for Covered Banks with $50 Billion or More in Assets; Technical and Conforming Changes” to facilitate the organization and distribution of comments among the Agencies. You may submit comments, identified by RIN number, by any of the following methods:

    Agency website: https://www.fdic.gov/regulations/laws/publiccomments/. Follow instructions for submitting comments on the Agency website.

    Email: Commen[email protected] Include the RIN number 3064-AE73 on the subject line of the message.

    Mail: Robert E. Feldman, Executive Secretary, Attention: Comments, Federal Deposit Insurance Corporation, 550 17th Street NW, Washington, DC 20429.

    Hand Delivery: Comments may be hand delivered to the guard station at the rear of the 550 17th Street Building (located on F Street) on business days between 7:00 a.m. and 5:00 p.m.

    Public Inspection: All comments received must include the agency name and RIN 3064-AE73 for this rulemaking. All comments received will be posted without change to https://www.fdic.gov/regulations/laws/publiccomments/, including any personal information provided. Paper copies of public comments may be ordered from the FDIC Public Information Center, 3501 North Fairfax Drive, Room E-I002, Arlington, VA 22226 by telephone at 1 (877) 275-3342 or 1 (703) 562-2200.

    FOR FURTHER INFORMATION CONTACT:

    Ryan Sheller, Section Chief, (202) 412-4861, Large Bank Supervision, Division of Risk Management Supervision; Annmarie Boyd, Counsel, (202) 898-3714, or Benjamin Klein, Counsel, (202) 898-7027, Legal Division, Federal Deposit Insurance Corporation, 550 17th Street NW, Washington, DC, 20429.

    SUPPLEMENTARY INFORMATION:

    I. Background

    Section 165(i) of the Dodd-Frank Wall Street Reform and Consumer Protection Act 1 (“Dodd-Frank Act”) requires two types of stress tests. Section 165(i)(1) requires the Board to conduct annual stress tests of holding companies with $50 billion or more in assets (“supervisory stress tests”). Section 165(i)(2) requires the federal banking agencies to issue regulations requiring financial companies with more than $10 billion in assets to conduct annual stress tests themselves (“company-run stress tests”). In October 2012, the FDIC, Board, and OCC issued final rules implementing the company-run stress tests.2 Accordingly, the FDIC regulation at 12 CFR part 325, subpart C, implements the stress test requirements of section 165(i)(2) of the Dodd-Frank Act with respect to covered banks.

    1 12 U.S.C. 5365(i).

    2 77 FR 62417 (Oct. 15, 2012) (FDIC); 77 FR 62380 (Oct. 12, 2012 (Board)); 77 FR 61238 (Oct. 9, 2012) (OCC).

    The Dodd-Frank Act also requires that the FDIC and other federal financial regulatory agencies issue consistent and comparable regulations to implement the statutory stress testing requirement.3 In order to fulfill this requirement and minimize regulatory burden, the FDIC is proposing certain changes to 12 CFR part 325, subpart C, as described below, in order to ensure that its stress testing regulation remains consistent and comparable to the regulations enacted by other regulatory agencies, including the Board and the OCC.

    3 12 U.S.C. 5365(i)(2)(C).

    II. Description of the Proposed Rule A. New Terminology and Applicability Transition for Covered Banks With $50 Billion or More in Assets

    Although 12 CFR part 325, subpart C applies to all covered banks that exceed $10 billion in average total consolidated assets, the regulation differentiates between “$10 billion to $50 billion covered banks” and “over $50 billion covered banks.” The proposed rule would change the defined term “over $50 billion covered bank” to “$50 billion or over covered bank.” This change would not alter the scope of this defined term and would not change the substantive requirements of the regulation. The new defined term would be a more precise description of the entities included within this category, which includes all state nonmember banks and state savings associations “with average total consolidated assets . . . that are not less than $50 billion.” 4 While the proposed rule would change the defined term “over $50 billion covered bank” to “$50 billion or over covered bank,” this supplementary information section will continue to use the term “over $50 billion covered bank” since that is the term used in the current regulatory text.

    4 12 CFR 325.202(d)(2).

    The proposed rule would also change the transition process for a covered bank that becomes an “over $50 billion covered bank.” On February 3, 2017, the Board published a final rule that provided additional time for bank holding companies that cross the $50 billion asset threshold to comply with the stress testing requirements applicable to bank holding companies of such size.5 On February 23, 2018, the OCC published a final rule making the same change to its stress testing regulation.6 The proposed rule would make a parallel amendment to the FDIC's stress testing regulation.

    5 82 FR 9308 (Feb. 3, 2017). These expanded transitional arrangements are codified in the Board's regulations at 12 CFR 252.53(b).

    6 83 FR 7951 (Feb. 23, 2018).

    Under the existing regulation, a $10 billion to $50 billion covered bank that migrates to an over $50 billion covered bank becomes subject to the requirements applicable to over $50 billion covered banks immediately after satisfying the threshold.7 Under the proposed rule, a state nonmember bank or state savings association that becomes an over $50 billion covered bank in the first three quarters of a calendar year would not be subject to the stress testing requirements applicable to over $50 billion covered banks until the second calendar year after it crosses the threshold. A state nonmember bank or state savings association that becomes an over $50 billion covered bank in the fourth quarter of a calendar year would not be subject to the stress testing requirements applicable to over $50 billion covered banks until the third year after it crosses the asset threshold. For example, if a state nonmember bank or state savings association becomes an over $50 billion covered bank on September 15, 2018, it would need to comply with the requirements applicable to over $50 billion covered banks beginning in 2020 and file the FDIC DFAST-14A in April 2020. However, if a state nonmember bank or a state savings association becomes an over $50 billion covered bank on October 15, 2018, it would be required to comply with the stress testing requirements applicable to over $50 billion covered banks beginning in 2021 and file the FDIC DFAST-14A in April 2021. The additional time provided to a state nonmember bank or state savings association that becomes an over $50 billion covered bank prior to the enactment of the stress testing requirements is unlikely to change the potential compliance burden for those institutions.

    7 12 CFR 325.203(c)(2). A covered bank becomes an over $50 billion covered bank when its average total consolidated assets, as reported on the covered bank's Call Reports, for the four most recent consecutive quarters, equals $50 billion or more.

    The stress testing timeline and transition process for state nonmember banks and state savings associations that become $10 to $50 billion covered banks would remain unchanged.

    B. New Range of Possible As-Of Dates for Trading Scenario Component

    Under 12 CFR part 325, subpart C, the FDIC may require a covered bank with significant trading activities to include trading and counterparty components in its adverse and severely adverse scenarios. The trading data to be used in this component is as of a date between January 1 and March 1 of a calendar year.8 On February 3, 2017 the Board published a final rule that extended this range to run from October 1 of the calendar year preceding the year of the stress test to March 1 of the calendar year of the stress test.9 On February 23, 2018, the OCC published a final rule making the same change to its stress testing regulation.10 The proposed rule would make the same change to the FDIC's stress testing regulation. Extending this range would increase the FDIC's flexibility to choose an appropriate as-of date. The FDIC continues to coordinate its stress testing program with the Board and OCC in order to minimize regulatory burden. Presently, no FDIC-supervised institutions are required to comply with this stress testing requirement so the proposed rule is unlikely to have an immediate effect on FDIC-supervised institutions.

    8 12 CFR 325.204(c).

    9 82 FR 9308 (Feb 3, 2017).

    10 83 FR 7951 (Feb. 23, 2018).

    C. Removal of Obsolete Transition Language

    In 2014 the FDIC, in coordination with the Board and OCC, shifted the dates of the annual stress testing cycle by approximately three months, from October 1 to January 1.11 The FDIC's stress testing regulation continues to include transition language to facilitate this prior schedule shift. Because the transition to the new schedule is now complete, the proposed rule would remove this obsolete transition language.

    11 79 FR 69365 (Nov. 21, 2014).

    III. Request for Comment

    The FDIC requests comment on all aspects of the proposal.

    IV. Regulatory Analysis and Procedure Paperwork Reduction Act

    Under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501-3520), the FDIC may not conduct or sponsor, and a person is not required to respond to, an information collection unless the information collection displays a valid Office of Management and Budget (OMB) control number. This notice of proposed rulemaking amends 12 CFR part 325, which has an approved information collection under the PRA (OMB Control No. 3064-0189). The FDIC has determined that the proposed rule does not create any new or revise any existing collection of information under section 3504(h) of title 44. Accordingly, no Paperwork Reduction Act submission will be made to OMB.

    Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq., generally requires an agency, in connection with a proposed rule, to prepare and make available for public comment an initial regulatory flexibility analysis that describes the impact of a proposed rule on small entities.12 However, a regulatory flexibility analysis is not required if the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. The Small Business Administration has defined “small entities” to include banking organizations with total assets of less than or equal to $550 million.13 For the reasons described below and pursuant to section 605(b) of the RFA, the FDIC certifies that the proposed rule would not have a significant economic impact on a substantial number of small entities.

    12 5 U.S.C. 601 et seq.

    13 13 CFR 121.201 (as amended, effective December 2, 2014).

    The FDIC supervises 3,637 depository institutions,14 of which, 2,924 are defined as small banking entities by the terms of the RFA.15 As discussed in the SUPPLEMENTARY INFORMATION above, the proposed changes will only affect institutions with more than $10 billion in total assets. Therefore, the rule will not affect any small entities. As such, no small state nonmember banks and state savings associations would be affected by the proposal.

    14 FDIC-supervised institutions are set forth in 12 U.S.C. 1813(q)(2).

    15 FDIC Call Report, December 31, 2017.

    The FDIC invites any comments that will further inform the FDIC's consideration of RFA.

    Plain Language

    Section 722 of the Gramm-Leach-Bliley Act requires the Agencies to use plain language in all proposed and final rules published after January 1, 2000. The Agencies invite comment on how to make this proposed rule easier to understand.

    For example:

    • Has the FDIC organized the material to suit your needs? If not, how could it present the rule more clearly?

    • Have we clearly stated the requirements of the rule? If not, how could the rule be more clearly stated?

    • Does the rule contain technical jargon that is not clear? If so, which language requires clarification?

    • Would a different format (grouping and order of sections, use of headings, paragraphing) make the regulation easier to understand? If so, what changes would make the regulation easier to understand?

    • What else could we do to make the regulation easier to understand?

    List of Subjects in 12 CFR Part 325

    Administrative practice and procedure, Banks, Banking, Reporting and recordkeeping requirements, State savings associations, Stress tests.

    Authority and Issuance

    For the reasons set forth in the preamble, the FDIC proposes to amend 12 CFR part 325 as follows:

    PART 325—CAPITAL MAINTENANCE 1. The authority citation for part 325 continues to read as follows: Authority:

    12 U.S.C. 5365(i)(2); 12 U.S.C. 5412(b)(2)(C); 12 U.S.C. 1818, 12 U.S.C. 1819(a) (Tenth), 12 U.S.C. 1831o, and 12 U.S.C. 1831p-1.

    Subpart C—Annual Stress Test 2. In subpart C, remove the phrase “over $50 billion covered bank” from wherever it appears in the subpart, and add in its place the phrase “$50 billion or over covered bank”. 3. Amend § 325.201(a) by revising paragraph (a) to read as follows:
    § 325.201 Authority, purpose, and reservation of authority.

    (a) Authority. This subpart is issued by the Federal Deposit Insurance Corporation (the “Corporation” or “FDIC”) under 12 U.S.C. 5365(i)(2); 12 U.S.C. 5412(b)(2)(C); 12 U.S.C. 1818, 12 U.S.C. 1819(a)(Tenth), 12 U.S.C. 1831o, and 12 U.S.C. 1831p-1.

    4. Amend § 325.202 by revising paragraphs (d)(2) and (m) to read as follows:
    § 325.202 Definitions.

    (d) * * *

    (2) $50 billion or over covered bank. Any state nonmember bank or state savings association with average total consolidated assets calculated as required under this subpart that are not less than $50 billion.

    (m) Stress test cycle means the period beginning January 1 of a calendar year and ending on December 31 of that year.

    5. Revise § 325.203 to read as follows:
    § 325.203 Applicability.

    (a) Covered banks that become subject to stress testing requirements. A state nonmember bank or state savings association that becomes a $10 billion to $50 billion covered bank on or before March 31 of a given year shall conduct its first annual stress test under this subpart in the next calendar year after the date the state nonmember bank or state savings association becomes a $10 billion to $50 billion covered bank, unless that time is extended by the Corporation in writing. A state nonmember bank or state savings association that becomes a $10 billion to $50 billion covered bank after March 31 of a given year shall conduct its first annual stress test under this part in the second calendar year after the calendar year in which the state nonmember bank or state savings association becomes a $10 billion to $50 billion covered bank, unless that time is extended by the Corporation in writing.

    (b) Ceasing to be a covered bank or changing categories. (1) A covered bank shall remain subject to the stress test requirements based on its applicable category, as defined in § 325.202, unless and until total consolidated assets of the covered bank fall below the relevant size threshold for each of four consecutive quarters as reported by the covered bank's most recent Call Reports. The calculation shall be effective on the “as of” date of the fourth consecutive Call Report.

    (2) Notwithstanding paragraph (b)(1) of this section, a state nonmember bank or state savings association that becomes a $50 billion or over covered bank, whether by migrating from being a $10 billion to $50 billion covered bank or by directly becoming a $50 billion or over covered bank, after September 30 of a calendar year must comply with the requirements applicable to a $50 billion or over covered bank beginning on January 1 of the third calendar year after the state nonmember bank or state savings association becomes a $50 billion or over covered bank, unless that time is extended by the Corporation in writing. A state nonmember bank or state savings association that becomes a $50 billion or over covered bank on or before September 30 of a calendar year must comply with the requirements applicable to a $50 billion or over covered bank beginning on January 1 of the second calendar year after the state nonmember bank or state savings association becomes a $50 billion or over covered bank, unless that time is extended by the Corporation in writing.

    (c) Covered bank subsidiaries of a bank holding company or savings and loan holding company subject to annual stress test requirements. (1) Notwithstanding the requirements applicable to covered banks under this section, a covered bank that is a consolidated subsidiary of a bank holding company or savings and loan holding company that is required to conduct an annual company-run stress test under applicable regulations of the Board of Governors of the Federal Reserve System may elect to conduct its stress test and report to the FDIC on the same timeline as its parent bank holding company or savings and loan holding company.

    (2) A covered bank that elects to conduct its stress test under paragraph (c)(1) of this section will remain subject to the same timeline requirements of its parent company until otherwise approved by the FDIC.

    6. Revise § 325.204 to read as follows:
    § 325.204 Annual stress tests required.

    Each covered bank must conduct the annual stress test under this part subject to the following requirements:

    (a) Financial data. A covered bank must use financial data as of December 31 of the previous calendar year.

    (b) Scenarios provided by the Corporation. In conducting the stress test under this part, each covered bank must use the scenarios provided by the Corporation. The scenarios provided by the Corporation will reflect a minimum of three sets of economic and financial conditions, including baseline, adverse, and severely adverse scenarios. The Corporation will provide a description of the scenarios required to be used by each covered bank no later than February 15 of that calendar year.

    (c) Significant trading activities. The Corporation may require a covered bank with significant trading activities, as determined by the Corporation, to include trading and counterparty components in its adverse and severely adverse scenarios. The trading and counterparty position data to be used in this component will be as of a date between October 1 of the previous calendar year and March 1 of that calendar year in which the stress test is performed, and the Corporation will communicate a description of the component to the covered bank no later than March 1 of that calendar year.

    7. Amend § 325.206 by revising paragraph (a) to read as follows:
    § 325.206 Required reports of stress test results to the FDIC and the Board of Governors of the Federal Reserve System.

    (a) Report required for annual stress test results—(1) $10 billion to $50 billion covered bank. A $10 billion to $50 billion covered bank must report to the FDIC and to the Board of Governors of the Federal Reserve System, on or before July 31, the results of the stress test in the manner and form specified by the FDIC.

    (2) $50 billion or over covered bank. A $50 billion or over covered bank must report to the FDIC and to the Board of Governors of the Federal Reserve System, on or before April 5, the results of the stress test in the manner and form specified by the FDIC.

    8. Amend § 325.207 by revising paragraph (a) to read as follows:
    § 325.207 Publication of disclosures.

    (a) Publication date—(1) $10 billion to $50 billion covered bank. A $10 billion to $50 billion covered bank must publish a summary of the results of its annual stress test in the period starting October 15 and ending October 31.

    (2) $50 billion or over covered bank. A $50 billion or over covered bank must publish a summary of the results of its annual stress tests in the period starting June 15 and ending July 15, provided:

    (i) Unless the Corporation determines otherwise, if the $50 billion or over covered bank is a consolidated subsidiary of a bank holding company or savings and loan holding company subject to supervisory stress tests conducted by the Board of Governors of the Federal Reserve System under 12 CFR part 252, then within the June 15 to July 15 period, such covered bank may not publish the required summary of its annual stress test earlier than the date that the Board of Governors of the Federal Reserve System publishes the supervisory stress test results of the covered bank's parent holding company.

    (ii) If the Board of Governors of the Federal Reserve System publishes the supervisory stress test results of the covered bank's parent holding company prior to June 15, then such covered bank may publish its stress test results prior to June 15, but no later than July 15, through actual publication by the covered bank or through publication by the parent holding company pursuant to paragraph (b) of this section.

    Dated at Washington, DC, on March 20, 2018.

    Federal Deposit Insurance Corporation.

    By order of the Board of Directors.

    Valerie J. Best, Assistant Executive Secretary.
    [FR Doc. 2018-06162 Filed 3-30-18; 8:45 am] BILLING CODE 6714-01-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2013-0446; Product Identifier 2010-SW-007-AD] RIN 2120-AA64 Airworthiness Directives; Airbus Helicopters Deutschland GmbH (Previously Eurocopter Deutschland GmbH) Helicopters AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to revise Airworthiness Directive (AD) 2013-21-05 for Eurocopter Deutschland GmbH (now Airbus Helicopters Deutschland GmbH) (Airbus Helicopters) Model EC135 P1, P2, P2+, T1, T2, and T2+ helicopters. AD 2013-21-05 requires an initial and repetitive inspections of certain bearings and modifying the floor and a rod. Since we issued AD 2013-21-05, we have determined that modifying the floor and rod removes the unsafe condition. This proposed AD would retain the requirements of AD 2013-21-05 but remove the repetitive inspections. The actions of this proposed AD are intended to prevent an unsafe condition on these products.

    DATES:

    We must receive comments on this proposed AD by June 1, 2018.

    ADDRESSES:

    You may send comments by any of the following methods:

    Federal eRulemaking Docket: Go to http://www.regulations.gov. Follow the online instructions for sending your comments electronically.

    Fax: 202-493-2251.

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

    Hand Delivery: Deliver to the “Mail” address between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    Examining the AD Docket

    You may examine the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2013-0446; or in person at the Docket Operations between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the European Aviation Safety Agency (EASA) AD, the economic evaluation, any comments received and other information. The street address for the Docket Operations (telephone 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. For service information identified in this proposed rule, contact Airbus Helicopters, 2701 N. Forum Drive, Grand Prairie, TX 75052; telephone (972) 641-0000 or (800) 232-0323; fax (972) 641-3775; or at http://www.airbushelicopters.com/website/technical-expert/. You may review service information at the FAA, Office of the Regional Counsel, Southwest Region, 10101 Hillwood Pkwy, Room 6N-321, Fort Worth, TX 76177.

    FOR FURTHER INFORMATION CONTACT:

    Matt Fuller, Senior Aviation Safety Engineer, Safety Management Section, Rotorcraft Standards Branch, FAA, 10101 Hillwood Pkwy., Fort Worth, TX 76177; telephone (817) 222-5110; email [email protected].

    SUPPLEMENTARY INFORMATION: Comments Invited

    We invite you to participate in this rulemaking by submitting written comments, data, or views. We also invite comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting the proposals in this document. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit only one time.

    We will file in the docket all comments that we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, we will consider all comments we receive on or before the closing date for comments. We will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. We may change this proposal in light of the comments we receive.

    Discussion

    We issued AD 2013-21-05, Amendment 39-17629 (78 FR 65169, October 31, 2013) (AD 2013-21-05) for Eurocopter Deutschland GmbH (now Airbus Helicopters) Model EC135 P1, P2, P2+, T1, T2, and T2+ helicopters with bearing part number (P/N) LN9367GE6N2; rod P/N L671M5040205; lever P/N L671M5040101; and floor P/N L533M1014101, L533M1014102, L533M1014103, L533M1014104, L533M1014105 or L533M1014106 installed. AD 2013-21-05 requires inspecting each bearing for freedom of movement within 100 hours time-in-service (TIS) and thereafter at intervals not to exceed 800 hours TIS. AD 2013-21-05 also requires modifying the floor and modifying and re-identifying the rod with a new P/N. AD 2013-21-05 was prompted by an incident involving limited control of a tail rotor because of the binding of a bearing. Those actions are intended to detect and prevent the binding of a bearing, which could lead to loss of helicopter control.

    AD 2013-21-05 was also prompted by AD 2006-0318 R1, dated October 27, 2006, issued by EASA, which is the Technical Agent for the Member States of the European Union, issued to correct an unsafe condition for all Eurocopter Model EC 135 helicopters. EASA advised of an incident of impaired control of an EC 135 tail rotor. EASA stated that according to examinations, the bearing of the linear transducer was subject to binding, which limited the control range.

    Actions Since AD 2013-21-05 Was Issued

    After we issued AD 2013-21-05, EASA determined, based on a review of data and operator feedback, that repetitive inspections are not required for helicopters with the modified rod and floor. EASA accordingly revised its AD and issued AD No. 2006-0318R2, dated April 25, 2017, to remove the repetitive inspections.

    Also since we issued AD 2013-21-05, Eurocopter Deutschland GmbH Helicopters changed its name to Airbus Helicopters Deutschland GmbH. This proposed AD reflects that change and updates the contact information to obtain service documentation. Additionally, the FAA's Aircraft Certification Service has changed its organizational structure. The new structure replaces product directorates with functional divisions. We have revised some of the office titles and nomenclature throughout this proposed AD to reflect the new organizational changes. Additional information about the new structure can be found in the Notice published on July 25, 2017 (82 FR 34564).

    FAA's Determination

    These helicopters have been approved by the aviation authority of Germany and are approved for operation in the United States. Pursuant to our bilateral agreement with Germany, EASA, its technical representative, has notified us of the unsafe condition described in its AD. We are proposing this AD because we evaluated all known relevant information and determined that an unsafe condition is likely to exist or develop on other products of the same type design.

    Related Service Information Under 1 CFR Part 51

    We reviewed Eurocopter Alert Service Bulletin EC135-67A-012, Revision 1, dated October 18, 2006 (ASB Rev 1), which specifies repetitively inspecting the bearing of the linear transducer for freedom of movement and the lower side of the floor for chafing or damage. If there is binding, ASB Rev 1 specifies replacing the bearing. If there is chafing or damage on the floor, ASB Rev 1 specifies replacing the bearing and repairing the floor. ASB Rev 1 also specifies modifying and re-identifying a certain rod.

    This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    Other Related Service Information

    We also reviewed Airbus Helicopters Alert Service Bulletin EC135-67A-012, Revision 2, dated April 3, 2017 (ASB Rev 2). ASB Rev 2 states that the repetitive inspection has been added to the helicopter maintenance manual. The repetitive inspection is therefore removed, and ASB Rev 2 requires no action. ASB Rev 1 is attached to ASB Rev 2 as an Appendix.

    Proposed AD Requirements

    This proposed AD would remove the repetitive 800-hour TIS bearing inspection that is currently required. This proposed AD would continue to require inspecting each bearing for freedom of movement within 100 hours TIS, and replacing the bearing before further flight if there is binding or rough turning. If there is chafing or damage on the lower side of the floor, this proposed AD would require, before further flight, replacing the bearing and repairing the floor, and thereafter installing a Teflon strip. This proposed AD would also require modifying and re-identifying the rod and lever with a new part number.

    Differences Between This Proposed AD and the EASA AD

    The EASA AD sets compliance times from its original effective date of October 20, 2006, and this proposed AD would not. This proposed AD would require modifying each rod within 100 hours TIS, rather than within 800 hours TIS as specified in the EASA AD. This proposed AD would not require contacting Eurocopter customer support, unlike the EASA AD. Finally, this proposed AD would not apply to Airbus Helicopters Model EC635 T1, EC635 P2+, and EC635 T2+ helicopters because they have no FAA type certificate.

    Costs of Compliance

    We estimate that this proposed AD would affect 304 helicopters of U.S. Registry and that labor costs average $85 a work hour. We estimate it would take about 10 work-hours to inspect the bearing and no parts or materials would be required, for a cost of $850 per helicopter and $258,400 for the U.S. fleet. If necessary, replacing the bearing would require 3 additional work-hours, and parts would cost $50, for a cost of $305 per helicopter. Repairing the floor would require 3 additional work hours and minimal cost for materials, for a cost of $255 per helicopter.

    Authority for This Rulemaking

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

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

    Regulatory Findings

    We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD 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.

    For the reasons discussed, I certify this proposed regulation:

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

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

    3. Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction; and

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

    We prepared an economic evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.

    List of Subjects in 14 CFR Part 39

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

    The Proposed Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by removing Airworthiness Directive (AD) 2013-21-05, Amendment 39-17629 (78 FR 65169, October 31, 2013), and adding the following new AD: Airbus Helicopters Deutschland GmbH (Previously Eurocopter Deutschland GmbH): Docket No. FAA-2013-0446; Product Identifier 2010-SW-007-AD. (a) Applicability

    This AD applies to Model EC135 P1, P2, P2+, T1, T2, and T2+ helicopters, with bearing, part number (P/N) LN9367GE6N2; rod, P/N L671M5040205; lever, P/N L671M5040101; and floor, P/N L533M1014101, L533M1014102, L533M1014103, L533M1014104, L533M1014105 or L533M1014106, installed, certificated in any category.

    (b) Unsafe Condition

    This AD defines the unsafe condition as limited control of a tail rotor because of the binding of a bearing. This condition could result in subsequent loss of control of the helicopter.

    (c) Affected ADs

    This AD replaces AD 2013-21-05, Amendment 39-17629 (78 FR 65169, October 31, 2013).

    (d) Comments Due Date

    We must receive comments by June 1, 2018.

    (e) Compliance

    You are responsible for performing each action required by this AD within the specified compliance time unless it has already been accomplished prior to that time.

    (f) Required Actions

    (1) Within 100 hours time-in-service (TIS), inspect each bearing for freedom of movement by turning and tilting the bearing as depicted in Figure 2 of Eurocopter Alert Service Bulletin No. EC135-67A-012, Revision 1, dated October 18, 2006 (ASB). During any inspection:

    (i) If there is binding or rough turning, before further flight, replace the bearing with an airworthy bearing.

    (ii) If there is chafing on the lower side of the floor that does not extend through the panel outer layer, before further flight, replace the bearing with an airworthy bearing.

    (iii) If there is damage on the lower side of the floor in the area of the assembly opening that extends through the panel outer layer (revealing an open honeycomb cell or layer), before further flight, replace the bearing with an airworthy bearing and repair the floor.

    (2) After performing the actions in paragraphs (f)(1)(i) through (iii) of this AD, before further flight, install a Teflon strip and identify the floor by following the Accomplishment Instructions, paragraphs 3.E.(1) through 3.E.(4), of the ASB.

    (3) Within 100 hours TIS, modify and re-identify the rod as depicted in Figure 1 of the ASB and by following the Accomplishment Instructions, paragraphs 3.H.(1) through 3.H.(3)(f), of the ASB.

    (g) Alternative Methods of Compliance (AMOCs)

    (1) The Manager, Safety Management Section, FAA, may approve AMOCs for this AD. Send your proposal to: Matt Fuller, Senior Aviation Safety Engineer, Safety Management Section, Rotorcraft Standards Branch, FAA, 10101 Hillwood Pkwy., Fort Worth, TX 76177; telephone (817) 222-5110; email [email protected].

    (2) For operations conducted under a 14 CFR part 119 operating certificate or under 14 CFR part 91, subpart K, we suggest that you notify your principal inspector, or lacking a principal inspector, the manager of the local flight standards district office or certificate holding district office before operating any aircraft complying with this AD through an AMOC.

    (h) Additional Information

    (1) Airbus Helicopters Alert Service Bulletin No. EC135-67A-012, Revision 2, dated April 3, 2017, which is not incorporated by reference, contains additional information about the subject of this AD. For service information identified in this AD, contact Airbus Helicopters, 2701 N. Forum Drive, Grand Prairie, TX 75052; telephone (972) 641-0000 or (800) 232-0323; fax (972) 641-3775; or at http://www.helicopters.airbus.com/website/en/ref/Technical-Support_73.html. You may review the referenced service information at the FAA, Office of the Regional Counsel, Southwest Region, 10101 Hillwood Pkwy., Room 6N-321, Fort Worth, TX 76177.

    (2) The subject of this AD is addressed in European Aviation Safety Agency (EASA) AD No. 2006-0318R2, dated April 25, 2017. You may view the EASA AD on the internet at http://www.regulations.gov in the AD Docket.

    (i) Subject

    Joint Aircraft Service Component (JASC) Code: 6720, Tail Rotor Control System.

    Issued in Fort Worth, Texas, on March 23, 2018. Lance T. Gant, Director, Compliance & Airworthiness Division, Aircraft Certification Service.
    [FR Doc. 2018-06448 Filed 3-30-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2018-0168; Product Identifier 2017-NM-135-AD] RIN 2120-AA64 Airworthiness Directives; Airbus Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to adopt a new airworthiness directive (AD) for certain Airbus Model A318, A319, and A320 series airplanes, and Model A321-111, -112, -131, -211, -212, -213, -231, -232, -251N, -253N, and -271N airplanes. This proposed AD was prompted by a revision of an airworthiness limitations document that specifies more restrictive maintenance requirements and airworthiness limitations. This proposed AD would require revising the maintenance or inspection program, as applicable, to incorporate the specified maintenance requirements and airworthiness limitations. We are proposing this AD to address the unsafe condition on these products.

    DATES:

    We must receive comments on this proposed AD by May 17, 2018.

    ADDRESSES:

    You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:

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

    Fax: 202-493-2251.

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

    Hand Delivery: Deliver to Mail address above between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    For service information identified in this NPRM, contact Airbus, Airworthiness Office—EIAS, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email [email protected]; internet http://www.airbus.com. You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.

    Examining the AD Docket

    You may examine the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0168; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this NPRM, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

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

    SUPPLEMENTARY INFORMATION: Comments Invited

    We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2018-0168; Product Identifier 2017-NM-135-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this NPRM. We will consider all comments received by the closing date and may amend this NPRM based on those comments.

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

    Discussion

    The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2017-0170, dated September 7, 2017 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Airbus Model A318, A319, and A320 series airplanes, and Model A321-111, -112, -131, -211, -212, -213, -231, -232, -251N, -253N, and -271N airplanes. The MCAI states:

    The System Equipment Maintenance Requirements (SEMR) for Airbus A320 family aeroplanes, which are approved by EASA, are currently defined and published in the Airbus A318/A319/A320/A321 Airworthiness Limitations Section (ALS) Part 4 document. These instructions have been identified as mandatory for continued airworthiness.

    Failure to accomplish these instructions could result in an unsafe condition.

    Previously, EASA issued AD 2016-0093 [which corresponds to FAA AD 2017-19-24, Amendment 39-19054 (82 FR 44900, September 27, 2017) (“AD 2017-19-24”)] to require accomplishment of all maintenance tasks as described in ALS Part 4 at Revision 03. ALS Part 4 Revision 04 was not mandated because no significant changes were introduced with this Revision. The new ALS Part 4 Revision 05 (hereafter referred to as `the ALS' in this [EASA] AD) includes new and/or more restrictive requirements and extends the applicability to model A320-251N, A320-271N, A321-251N, A321-253N and A321-271N aeroplanes.

    For the reason described above, this [EASA] AD retains the requirements of EASA AD 2016-0093, which is superseded, and requires accomplishment of all tasks as described in the ALS.

    You may examine the MCAI in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0168.

    Relationship of Proposed AD to AD 2017-19-24

    This NPRM would not supersede AD 2017-19-24. Rather, we have determined that a stand-alone AD would be more appropriate to address the changes in the MCAI. This NPRM would require revising the maintenance or inspection program to incorporate the new maintenance requirements and airworthiness limitations. Accomplishment of the proposed actions would then terminate all of the requirements of AD 2017-19-24.

    Related Service Information Under 1 CFR Part 51

    Airbus has issued Airbus A318/A319/A320/A321 Airworthiness Limitations Section (ALS) Part 4, “System Equipment Maintenance Requirements (SEMR),” Revision 05, dated April 6, 2017. This service information describes preventive maintenance requirements and includes updated inspections and intervals to be incorporated into the maintenance or inspection program. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    FAA's Determination and Requirements of This Proposed AD

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

    This proposed AD would require revisions to certain operator maintenance documents to include new actions (e.g., inspections). Compliance with these actions is required by 14 CFR 91.403(c). For airplanes that have been previously modified, altered, or repaired in the areas addressed by this proposed AD, the operator may not be able to accomplish the actions described in the revisions. In this situation, to comply with 14 CFR 91.403(c), the operator must request approval for an alternative method of compliance according to paragraph (j)(1) of this proposed AD. The request should include a description of changes to the required actions that will ensure the continued operational safety of the airplane.

    Differences Between This Proposed AD and the MCAI or Service Information

    The MCAI specifies that if there are findings from the ALS inspection tasks, corrective actions must be accomplished in accordance with Airbus maintenance documentation. However, this proposed AD does not include that requirement. Operators of U.S.-registered airplanes are required by general airworthiness and operational regulations to perform maintenance using methods that are acceptable to the FAA. We consider those methods to be adequate to address any corrective actions necessitated by the findings of ALS inspections required by this proposed AD.

    Airworthiness Limitations Based on Type Design

    The FAA recently became aware of an issue related to the applicability of ADs that require incorporation of an ALS revision into an operator's maintenance or inspection program.

    Typically, when these types of ADs are issued by civil aviation authorities of other countries, they apply to all airplanes covered under an identified type certificate (TC). The corresponding FAA AD typically retains applicability to all of those airplanes.

    In addition, U.S. operators must operate their airplanes in an airworthy condition, in accordance with 14 CFR 91.7(a). Included in this obligation is the requirement to perform any maintenance or inspections specified in the ALS, and in accordance with the ALS as specified in 14 CFR 43.16 and 91.403(c), unless an alternative has been approved by the FAA.

    When a type certificate is issued for a type design, the specific ALS, including revisions, is a part of that type design, as specified in 14 CFR 21.31(c).

    The sum effect of these operational and maintenance requirements is an obligation to comply with the ALS defined in the type design referenced in the manufacturer's conformity statement. This obligation may introduce a conflict with an AD that requires a specific ALS revision if new airplanes are delivered with a later revision as part of their type design.

    To address this conflict, the FAA has approved alternative methods of compliance (AMOCs) that allow operators to incorporate the most recent ALS revision into their maintenance/inspection programs, in lieu of the ALS revision required by the AD. This eliminates the conflict and enables the operator to comply with both the AD and the type design.

    However, compliance with AMOCs is normally optional, and we recently became aware that some operators choose to retain the AD-mandated ALS revision in their fleet-wide maintenance/inspection programs, including those for new airplanes delivered with later ALS revisions, to help standardize the maintenance of the fleet. To ensure that operators comply with the applicable ALS revision for newly delivered airplanes containing a later revision than that specified in an AD, we plan to limit the applicability of ADs that mandate ALS revisions to those airplanes that are subject to an earlier revision of the ALS, either as part of the type design or as mandated by an earlier AD. This proposed AD therefore would apply to Airbus Model A318, A319, and A320 series airplanes, and Model A321-111, -112, -131, -211, -212, -213, -231, -232, -251N, -253N, and -271N airplanes with an original certificate of airworthiness or original export certificate of airworthiness that was issued on or before the date of approval of the ALS revision identified in this proposed AD. Operators of airplanes with an original certificate of airworthiness or original export certificate of airworthiness issued after that date must comply with the airworthiness limitations specified as part of the approved type design and referenced on the type certificate data sheet.

    Costs of Compliance

    We estimate that this proposed AD affects 1,133 airplanes of U.S. registry.

    We estimate the following costs to comply with this proposed AD:

    We have determined that revising the maintenance or inspection program takes an average of 90 work-hours per operator, although this figure may vary from operator to operator. In the past, we have estimated that this action takes 1 work-hour per airplane. Since operators incorporate maintenance or inspection program changes for their affected fleet(s), we have determined that a per-operator estimate is more accurate than a per-airplane estimate. Therefore, we estimate the total cost per operator to be $7,650 (90 work-hours × $85 per work-hour).

    Authority for This Rulemaking

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

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

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

    Regulatory Findings

    We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD 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.

    For the reasons discussed above, I certify this proposed regulation:

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

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

    3. Will not affect intrastate aviation in Alaska; and

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

    List of Subjects in 14 CFR Part 39

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

    The Proposed Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): Airbus: Docket No. FAA-2018-0168; Product Identifier 2017-NM-135-AD. (a) Comments Due Date

    We must receive comments by May 17, 2018.

    (b) Affected ADs

    This AD affects AD 2017-19-24, Amendment 39-19054 (82 FR 44900, September 27, 2017) (“AD 2017-19-24”).

    (c) Applicability

    This AD applies to the Airbus airplanes identified in paragraphs (c)(1) through (c)(4) of this AD, certificated in any category, with an original certificate of airworthiness or original export certificate of airworthiness issued on or before April 6, 2017.

    (1) Model A318-111, -112, -121, and -122 airplanes.

    (2) Model A319-111, -112, -113, -114, -115, -131, -132, and -133 airplanes.

    (3) Model A320-211, -212, -214, -216, -231, -232, -233, -251N, and -271N airplanes.

    (4) Model A321-111, -112, -131, -211, -212, -213, -231, -232, -251N, -253N, and -271N airplanes.

    (d) Subject

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

    (e) Reason

    This AD was prompted by a revision of an airworthiness limitations document that specifies more restrictive maintenance requirements and airworthiness limitations. We are issuing this AD to mitigate the risks associated with the effects of aging on airplane systems. Such effects could change system characteristics, leading to an increased potential for failure of certain life-limited parts, and reduced structural integrity or controllability of the airplane.

    (f) Compliance

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

    (g) Revision of Maintenance or Inspection Program

    Within 90 days after the effective date of this AD, revise the maintenance or inspection program, as applicable, to incorporate Airbus A318/A319/A320/A321 Airworthiness Limitations Section (ALS) Part 4, “System Equipment Maintenance Requirements (SEMR),” Revision 05, dated April 6, 2017. The initial compliance time for doing the revised actions is at the applicable time specified in Airbus A318/A319/A320/A321 Airworthiness Limitations Section (ALS) Part 4, “System Equipment Maintenance Requirements (SEMR),” Revision 05, dated April 6, 2017.

    (h) No Alternative Actions or Intervals

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

    (i) Terminating Action for AD 2017-19-24

    Accomplishing the actions required by this AD terminates all requirements of AD 2017-19-24.

    (j) Other FAA AD Provisions

    The following provisions also apply to this AD:

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

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

    (k) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2017-0170, dated September 7, 2017, for related information. This MCAI may be found in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0168.

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

    (3) For service information identified in this AD, contact Airbus, Airworthiness Office—EIAS, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email [email protected]; internet http://www.airbus.com. You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.

    Issued in Des Moines, Washington, on March 22, 2018. Michael Kaszycki, Acting Director, System Oversight Division, Aircraft Certification Service.
    [FR Doc. 2018-06590 Filed 3-30-18; 8:45 am] BILLING CODE 4910-13-P
    FEDERAL COMMUNICATIONS COMMISSION 47 CFR Parts 1, 2, 5, 15, and 101 [GN Docket No. 18-21, RM-11795; FCC 18-17] Spectrum Horizons AGENCY:

    Federal Communications Commission.

    ACTION:

    Proposed rule.

    SUMMARY:

    In this document, the Federal Communications Commission (Commission) seeks comment on proposed rules to permit licensed fixed point-to-point operations in a total of 102.2 gigahertz of spectrum; on making 15.2 gigahertz of spectrum available for unlicensed use; and on creating a new category of experimental licenses to increase opportunities for entities to develop new services and technologies from 95 GHz to 3 THz with no limits on geography or technology. The Commission also granted, in part, two petitions for rulemaking and denied two requests for waiver.

    DATES:

    Comments are due May 2, 2018. Reply comments are due May 17, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Michael Ha, Office of Engineering and Technology, 202-418-2099, [email protected]

    SUPPLEMENTARY INFORMATION:

    This is a summary of the Commission's Notice of Proposed Rulemaking, ET Docket No. 18-21, RM-11795, FCC 18-17, adopted February 22, 2018, and released February 28, 2018. The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Center (Room CY-A257), 445 12th Street SW, Washington, DC 20554. The full text may also be downloaded at: https://transition.fcc.gov/Daily_Releases/Daily_Business/2018/db0228/FCC-18-17A1.pdf. 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 Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).

    Synopsis

    1. Background. The Commission focuses the Notice on providing licensed and unlicensed spectrum use opportunities in the 95 GHz to 275 GHz range, with additional provisions for experimental licensing up to 3000 GHz in a manner that would not foreclose future federal and non-federal access to opportunities and technologies. The frequencies in the 95 GHz to 275 GHz range are allocated for federal government and non-federal government use across multiple services on a co-primary basis, while the frequencies above 275 GHz are not allocated. Because the Commission presently has no licensed service rules in these bands, and these bands are currently “restricted” under the part 15 rules for unlicensed devices, there is limited Commission-authorized use above 95 GHz, other than for experimental and amateur radio operations. In developing our proposals, the Commission therefore draws from many inputs, including the present use of the band, our prior inquiries seeking information on potential use of this spectrum (including adjacent and nearby frequencies that can serve as useful comparisons), recent technical and international developments, our analysis of the engineering issues and propagation characteristics associated with the use of these frequencies, and applications for experimental licenses and rulemaking petitions that the Commission has received. Our proposed approach is intended to provide incentives and opportunities for investment in the development of innovative new technologies and services while remaining cognizant of the flexible international, federal and non-federal allocations, and the already extensive and planned passive uses of these bands. Developing rules in these bands serves the public interest; not only can it lead to new and novel communications opportunities in an uncrowded frequency range, it could also pay dividends by reducing pressures in lower parts of the spectrum. The Commission also recognizes that all the potential services and devices that might be developed in this spectrum are not yet known. Thus, while the Commission proposes a wide range of expanded licensed, unlicensed and experimental use opportunities now, the Commission also leaves room to enable future federal and non-federal access opportunities and technologies.

    2. Several parties filed comments in the Spectrum Frontiers docket regarding the spectrum above 95 GHz. Commenters nevertheless offered little in the way of specific proposed rules or technical analyses, likely due to the general nature of the questions about these bands posed by the Further Notice. While parties are welcome to reprise their observations and recommendations to the extent that they remain relevant, the Commission also encourages commenters to react to the specific objectives, proposals, and draft rules that the Commission describes in greater detail herein.

    3. Experimental licenses, petitions and other requests. A review of our licensing database indicates that there are currently eleven active experimental licenses for spectrum above 95 GHz. The Commission has also received petitions and waiver requests to enable spectrum use above 95 GHz on a non-experimental basis. Battelle Memorial Institute, Inc. (Battelle) filed a petition for rulemaking in February 2014 asking the Commission to adopt service rules for non-federal fixed use of the 102-109.5 GHz band. McKay Brothers, LLC, which holds a nationwide, non-exclusive license in the 70/80/90 GHz bands, seeks a waiver to enable its Geneva Communications subsidiary to operate in the band. Additionally, ZenFi Networks, Inc. (ZenFi), which also holds a 70/80/90 GHz license, seeks a waiver of our part 101 rules to permit use of the 102-109.5 GHz band in a number of cities under the 70/80/90 GHz band rules.

    4. IEEE-USA submitted a request for the Commission to make a declaratory ruling that any application for use of technology above 95 GHz is presumed to be a “new technology” under section 7 of the Communications Act of 1934, and is thus subject to the one-year timeframe for determining whether the proposal is in the public interest. IEEE-USA also requests that the Commission declare that, if it finds a proposal to use above 95 GHz spectrum is in the public interest, it will adopt rules that enable provisioning of that new technology or service within a one-year period. James Whedbee, in a petition for rulemaking, asks us to create a rule for operation of unlicensed intentional radiator devices in the 95-1,000 GHz band. Whedbee states that his proposed rule is identical in most respects to those used for other Extremely High Frequency (30-300 GHz) bands regulated under part 15. The Commission has yet to take action on these various petitions or waiver requests.

    5. Discussion. Given the growth in interest in millimeter wave spectrum, the Commission believes it is now appropriate to make spectrum above 95 GHz more readily available for the deployment of fixed and mobile wireless technologies. The Commission tentatively concludes that finding new ways to promote the development of bands above 95 GHz will also serve the public interest. Moreover, a review of academic publications indicates that the demand for wireless data will continue to expand.

    6. Licensed service. The Commission seeks comment on whether to adopt rules for fixed point-to-point operations in the 95-100 GHz, 102-109.5 GHz, 111.8-114.25 GHz, 122.25-123 GHz, 130-134 GHz, 141-148.5 GHz, 151.5-158.5 GHz, 174.5-174.8 GHz, 231.5-232 GHz, and 240-241 GHz bands based on the rules currently in place for the 70/80/90 GHz band. In addition, the Commission also seeks comment on applying these rules to several other frequency bands above 95 GHz that may be suitable for licensed fixed operations, including 158.5-164 GHz, 167-174.5 GHz, 191.8-200 GHz, 209-226 GHz, 232-235 GHz, 238-240 GHz, and 252-275 GHz. The Commission also inquires into whether mobile operations may be appropriate for any bands above 95 GHz with mobile allocations.

    7. Fixed Point-to-Point Services: Based on the propagation properties of the spectrum the Commission believes that large portions of the spectrum in the 95-275 GHz range are potentially suitable for deploying fixed point-to-point links. While the Commission has no intention of changing the current allocations of any of this spectrum, the Commission notes that there are numerous bands below 275 GHz that are already allocated for the fixed service. Consequently, the Commission seeks comment on proposed rules for fixed point-to-point operations in 36 gigahertz of spectrum in the 95-100 GHz, 102-109.5 GHz, 111.8-114.25 GHz, 122.25-123 GHz, 130-134 GHz, 141-148.5 GHz, 151.5-158.5 GHz, 174.5-174.8 GHz, 231.5-232 GHz, and 240-241 GHz bands based on the 70/80/90 GHz rules. These “proposed fixed bands” are all the bands below 275 GHz with a fixed service allocation that are not shared with either the FSS or MSS. Below, the Commission seeks comment on whether it should also include the bands shared with the FSS or MSS in our proposal. The Commission also believes that the 70/80/90 GHz rules in place since 2003, which have proven effective in efficiently providing access to spectrum in that frequency range, provide a useful model for the rules contemplated here. The propagation characteristics and technical rules associated with the 70/80/90 GHz frequencies allow for the sharing of spectrum by multiple users in close geographic proximity, as the Commission contemplates would be the case with the above 95 GHz frequencies proposed here. The 70/80/90 GHz rules also allow for sharing with federal users and the protection of radio astronomy that shares many of these bands, which the Commission anticipates would also be important for the use of the bands contemplated in this proceeding.

    8. The Commission seeks comment on draft rules for the proposed fixed bands, which would be mostly identical to the rules for the 70/80/90 GHz bands contained in part 101. Briefly summarizing, both sets of rules provide that:

    • The Commission will issue non-exclusive nationwide licenses for ten-year terms.

    • Each fixed point-to-point link must be registered through a link registration system maintained by a database manager. An interference analysis for the link must be submitted to the database manager when registering the link.

    • The licensee must apply to the Commission for coordination of a link if: (1) The link receives a “yellow light” from NTIA's automated mechanism as part of the registration process; (2) it requires an environmental assessment; (3) it requires international coordination; or (4) it operates in a quiet zone.

    • An applicant may request a license for any portion of any band.

    • Interference protection is granted to the first-in-time registered non-federal link. Existing digital links are protected to a threshold-to-interference ratio (T/I) level of 1.0 dB of degradation to the static threshold. Existing analog links shall not experience more than a 1.0 dB degradation of the baseband signal-to-noise ratio required to produce an acceptable signal in the receiver.

    • Construction of links must be completed within 12 months of link registration.

    • Transmitters may operate at a maximum Equivalent Isotropically Radiated Power (EIRP) of 25 decibel watts per megahertz (dBW/MHz).

    • Transmitters must have a minimum antenna gain of 43 decibels (isotropic) (dBi) with a half-power beamwidth of 1.2 degrees, but the maximum EIRP is reduced by 2 decibels for each decibel the antenna gain is less than 50 dBi.

    • Out-of-band emissions are limited as specified in § 101.111 of our rules for signals above 24 GHz with the value of B (bandwidth) set for 500 megahertz.

    • Systems using digital modulation must have a minimum bit rate of 0.125 bits/second/Hz.

    • Licensees may provide service on either a common carrier or non-common carrier basis and are subject to the eligibility requirements of § 101.7 (foreign ownership).

    • Coordination with Mexico or Canada is required for certain stations located near the borders.

    The Commission seeks comment generally on adopting these rules for the identified fixed bands and discusses in more detail below some aspects of these proposed rules. Should identical rules be adopted for each of the individual bands or should the rules be adjusted for the characteristics of each band?

    9. Certain rules for the 70/80/90 GHz band contained in part 101 are different for the 70/80 GHz bands as opposed to the 90 GHz band. For example, transmitters in the 90 GHz band are required to have an antenna gain of 50 dBi while in the 70/80 GHz band the limit is only 43 dBi. The 90 GHz band also has an additional interference protection requirement that a new link must not decrease an existing link's desired to undesired signal ratio below 36 dB. Digital systems in the 90 GHz band are required to have a bit rate of 1 bit/second/Hz instead of 0.125 bits/second/Hz in the 70/80 GHz bands. In these instances where the current rules vary, the Commission seeks comment on whether to adopt the 70/80 GHz rules

    10. Under the 70/80/90 GHz rules, the transmitted power is limited to 55 dBW irrespective of the bandwidth of the signal. Under the Commission's proposal, licensees will be limited to a maximum EIRP of 25 dBW/MHz, which is equivalent to the 75 decibel milliwatts per 100 megahertz (75 dBm/100 MHz) EIRP limit the Commission recently adopted for base stations in our part 30 rules. The Commission seeks comment on this proposal; would another EIRP be more appropriate?

    11. Can and should the Commission require or invite the current 70/80/90 GHz database managers to extend their duties to additional bands above 95 GHz or should WTB identify one or more database managers for these bands through an independent process? Is the requirement that licensees submit an interference analysis to the database manager when registering a link necessary to prevent interference given the propagation characteristics above 95 GHz?

    12. The Commission seeks comment generally on extending the 70/80/90 GHz service and technical rules to the proposed fixed bands. Should any of the proposed rules be modified for bands above 95 GHz based on licensees' experiences with the 70/80/90 GHz rules or for other reasons? Are modifications to the rules needed to encourage more efficient use of spectrum or to avoid harmful interference? Should a higher EIRP be permitted to compensate for the atmospheric attenuation at these higher frequencies? The Commission notes that Battelle has suggested an EIRP of 70 dBW in their rulemaking petition, which would be 31.25 dBW/MHz if spread evenly across the 102-109.5 GHz band, claiming that the 70/80/90 GHz bands suffers from limited range and operating availability during severe weather and that there will be additional atmospheric attenuation in the 102-109.5 GHz band. Should the Commission segment any of the proposed bands as the Commission did for the 90 GHz band? What segmentation would be appropriate? Would a specific channel plan be appropriate in any of the bands? Do the rules provide a workable framework for protecting radio astronomy facilities and federal operations in the band? Are there any modifications to the proposed rules that would be necessary to address any of the characteristics of the proposed fixed bands?

    13. Do the antenna gain requirements for the 70/80/90 GHz bands strike an appropriate balance between facilitating sharing of the spectrum and providing flexibility? Do the proposed rules need to be modified to allow for the use of small planar or phased array antennas?

    14. Should the Commission make provisions in the rules for fixed point-to-multipoint systems in addition to point-to-point links? For example, could the Commission allow licensees to register operations in an area around a fixed location instead of requiring registration of individual links as required by the 70/80/90 GHz rules? This would enable a licensee to establish an access point/base station that serves a number of fixed customer locations in the surrounding area. The access point/base station would be permitted to operate with multiple beams where each beam must abide by the power limits the Commission is adopting, but the sum of the power of all the beams could be higher. What are the advantages or disadvantages of such a proposal? The Commission envisions that the area served by an access/point base station would be small. What size area could an access point/base station serve given the propagation properties of these bands? Would allowing such point-to-multipoint systems require a higher degree of coordination with other licensees or Federal operations to prevent harmful interference from occurring? Should the area that is reserved around a particular access point/base station depend on the technical parameters of the access point such its transmit power and antenna height and characteristics of the surrounding environment such as terrain and structures? Because the access point/base station may use dynamically steerable antenna arrays to point at particular customer locations as needed, would it make sense to allow licensees to specify their coverage areas as a probability density function that describes the relative likelihood of pointing in a particular direction? By specifying coverage areas in terms of probably density functions, the coverage areas of different licensees could overlap to allow a means of sharing the spectrum on a statistical basis. Do commenters agree with this assessment?

    15. While the Commission did not include the above 95 GHz bands that are allocated for the FSS or MSS in the above discussion, the Commission notes that satellite services successfully share spectrum with terrestrial services in many bands. Therefore, the Commission seeks comment on extending our above proposal based on the 70/80/90 GHz rules to permit fixed operations in one or more of the following additional bands that are allocated for either the FSS or the MSS in addition to the fixed and mobile services: 158.5-164 GHz, 167-174.5 GHz, 191.8-200 GHz, 209-226 GHz, 232-235 GHz, 238-240 GHz, and 252-275 GHz. What changes, if any, to our proposed rules would be necessary to permit fixed operations in these bands?

    16. Alternatively, should the Commission instead adopt the licensing and prior coordination requirement used in many bands subject to our part 101 rules. Under such an approach, links would be individually licensed and the Commission would require that the links be coordinated with the licensee of other potentially affected links prior to application for a license? Are there any other models for licensing that the Commission should consider for these bands?

    17. Mobile Services: The Commission seeks comment generally on the deployment of mobile services in this spectrum. Would there be significant interest in implementing mobile services here? Given the propagation characteristics of these bands, what type of systems could feasibly be deployed? What type of licensing and technical rules should the Commission consider adopting for mobile services in this spectrum?

    18. Sharing Considerations: With the exception of passive services (EESS, RAS, and SRS) that collectively have exclusive primary allocations in some of the bands between 95 GHz and 275 GHz, all other services in the 95-275 GHz bands have shared allocations. Sometimes, without specific guidance, such allocations convey a perception that when two or more primary services are listed in the U.S. Table, later-licensed or authorized federal or non-federal operations would be expected to protect the earlier-licensed or authorized operations. However, to avoid any mistaken perceptions and in light of the unique physical characteristics in these bands, the Commission seeks comment below on adopting a new U.S. footnote in the table of allocations that would clarify that, among co-primary federal and non-federal services, first-in-time does not necessarily mean priority relative to other current or future licensed or unlicensed uses.

    19. Sharing with the RAS. RAS operations in this region of the spectrum are limited to certain locations. For this reason, the Commission believes that excluding fixed and mobile stations from these localities would provide adequate protection for incumbent operations. U.S. footnote 161 includes a list of RAS locations operating in the bands 81-86 GHz, 92-94 GHz, and 94.1-95 GHz that are protected from fixed stations by the use of coordination distances. The Commission seeks comment as to whether a similar approach would adequately protect RAS operations in the bands above 95 GHz. Does this list reflect RAS operations that currently exist or are anticipated above 95 GHz, or should the Commission modify it to add or eliminate certain locations? Given that the propagation losses in the bands above 95 GHz are higher than the bands identified in US161, should the coordination distances be adjusted accordingly?

    20. The Commission notes that footnote US246 prohibits all transmissions in a number of bands above 95 GHz to protect passive services such as the RAS and EESS (passive). Footnote US74 specifies that radio astronomy observatories operating in most of the frequency bands listed in US246 will be protected from unwanted emissions from other stations only to the extent the emissions exceed what would be permitted under the technical standards or criteria applicable to the service in which the station operates. However, US74 omits the 182-185 GHz and 226-231.5 GHz bands even though they are included in US246 and have RAS allocations. The Commission seeks comment on whether these two bands should be added to US74.

    21. Sharing services with the EESS and SRS. The Commission seeks comments on the appropriate methodology for modelling potential interference to the EESS and SRS. Limitations on power or the number and locations of devices may be appropriate mitigation techniques that would not necessarily restrict the transmission ranges of services such as terahertz WLANs or fixed backhaul links to the point they are unworkable. Are there specific environmental propagation models the Commission should consider when contemplating allowing shared services with EESS and SRS? Should additional environmental characteristics, for example via building or other forms of clutter model, be considered? The Commission seeks comment on the harmful interference criteria for satellite passive remote sensing, as well as any published studies or recommendations that may be relevant in assessing sharing with satellite passive remote sensors. Are there methodologies the Commission should adopt into its rules that could mitigate interference to EESS and SRS services caused by new users of above 95 GHz spectrum? What is the best way of predicting atmospheric attenuation (including losses from rain, etc.), particularly in the bands beyond the 1 THz limit of the International Telecommunication Union (ITU) recommendation on attenuation by atmospheric gases, ITU-R P676-11? Are there other assumptions that must be considered in ensuring interference protected operation for passive sensors in the EESS and SRS?

    22. Sharing with the FSS, MSS, and ISS. The 158.5-164 GHz, 167-174.5 GHz, 209-226 GHz, 232-235 GHz, 238-240 GHz, and 265-275 GHz bands have shared allocations with the FSS. The Commission expects that sharing between the MS service and the FSS service would be similar to the lower frequency bands under the new part 30 rules. The Commission seeks comment on how the Upper Microwave Flexible Use Service (UMFUS) rules could be used to facilitate sharing between the MS and FSS in the above 95 GHz bands. How can interference be avoided between mobile stations and satellite operations? Could exclusion zones or coordination be used to prevent interference? Would designating portions of the shared spectrum where satellite or terrestrial services have priority be an appropriate means for sharing the spectrum?

    23. The Commission also seeks comment on how sharing could be accomplished between the FS and FSS in the bands under discussion. Would the use of a narrow-beam antenna requirement in our proposed rules for FS operations avoid harmful interference to the FSS? Sharing between the FS and the FSS in the lower frequency bands under our part 101 of our rules uses first-in-time coordination. Would this be an appropriate method for sharing between the FS and FSS? Could the registration of fixed links with the database manager required under our proposed rules be extended to also apply to satellite earth stations?

    24. The 158.5-164 GHz, 191.8-200 GHz, 232-235 GHz, and 252-265 GHz bands have shared allocations with the MSS. The Commission believes sharing between FS and MSS is technically feasible, and seeks comment on possible sharing mechanisms between these services. The Commission seeks comment on possible sharing mechanisms between the MS and MSS services. Would geographical partitioning between services, for example between urban/rural markets, serve as a possible sharing mechanism? If so, how should such markets be defined? Could dual MS/MSS user equipment, if available, resolve possible interference conditions by switching to terrestrial service when a terrestrial network is detected? Could requiring operators of terrestrial MS networks to adopt a method of registration and tracking of MSS user equipment reduce the possibility of interference by limiting emissions in the direction of MSS user equipment?

    25. The 122.25-123 GHz, 130-134 GHz, 167-174.8 GHz, and 191.8-200 GHz bands have a shared allocation with the inter-satellite service (ISS). Is there a need to make provisions in the Commission's rules to prevent harmful interference to and from the ISS? Should there be specific antenna performance requirements for FS and MS stations to limit potential interference to the ISS? If so, should there be separate requirements for each of the shared bands? Commenters who support antenna performance requirements for FS and MS stations should provide specific technical information and proposals showing the need for such requirements. Similarly, should there be specific antenna performance requirements for aeronautical use of MS stations or should such use be prohibited entirely to protect the ISS? The Commission seeks comment on whether NGSO satellites can be accommodated in the 116-122.25 GHz band.

    26. Other shared services. The 95-100 GHz, 141-148.5 GHz, 151.5-155.5 GHz, 191-200 GHz, 238-241 GHz, and 252-265 GHz bands have shared allocations for radar use (radionavigation service or radiolocation service). The 95-100 GHz, 238-240 GHz, and 252-265 GHz bands are also allocated for the radio navigation satellite service. How likely is it that these allocations will be used in the future by non-federal users? The Commission seeks comment generally on how stations in the fixed and/or mobile service could share the bands with the radar allocated services. Can the sharing mechanism be based on geographical separation? Could a database of locations where radar operations occur or the locations of transmitters or receivers of other licensed services be used to facilitate sharing in these bands? Such a database could be a relatively simple record of the locations of fixed facilities or the geographic areas where mobile operations may occur or it could be more sophisticated. Could the use of sensing technologies to determine when radars are in operation be used to share the bands between radars and other licensed services?

    27. Federal/non-federal sharing: As the Commission notes above, the 95-275 GHz spectrum is allocated on a co-primary basis for federal and non-federal use. In developing rules for this spectrum, the Commission will work closely with the NTIA with the objective of developing a framework that both encourages private sector investment in new technologies and services and preserves the ability of federal users to research, develop, test, and deploy new technologies and services to meet their needs. While this notice considers the possibility of granting nationwide licenses, access to the band by both federal and non-federal users would be on a shared basis where access by users would not preclude federal and non-federal users from deploying systems where no authorized facilities have been registered or deployed. Specific sharing and coordination terms to ensure federal and non-federal co-primary access will be addressed through a future framework to be jointly developed by NTIA and FCC as part of follow-on proceedings. The Commission seeks comment on adding the following footnote to the Table of Frequency Allocations that reflects this approach:

    USxxx: Federal and non-federal users shall have equal rights to access the spectrum in the 95-275 GHz band. Use of the band by non-federal users on a licensed or unlicensed basis shall not preclude or impair co-primary use of the bands by federal users and shall not establish non-federal priority in bands allocated for shared federal and non-federal use.

    28. Unlicensed operations under parts 15. Part 15 of the Commission's rules permits the operation of RF devices without issuing individual licenses to operators of these devices. The Commission's part 15 rules are designed to ensure that there is a low probability that these devices will cause harmful interference to authorized users of the same or nearby spectrum. Should harmful interference occur, the operator is required to immediately correct the interference problem or cease operation.

    29. Apart from a few specified frequency bands, spectrum above 38.6 GHz is designated as “restricted” in § 15.205 of the rules. Unless expressly permitted by rule or waiver, unlicensed devices are not allowed to intentionally radiate energy into a restricted band. The Commission proposes to allow unlicensed operation in additional frequency bands where the Commission believes it will not cause harmful interference to authorized services, and to remove those specific bands from the list of restricted bands.

    30. The Commission seeks comment on whether to make 15.2 gigahertz of spectrum above 95 GHz available for unlicensed use in four frequency bands. First, the Commission seeks comment on allowing unlicensed operation in the 122-123 GHz and the 244-246 GHz bands, which are already designated industrial, scientific, and medical (ISM) bands. The Commission would remove these bands from the list of restricted bands in § 15.205. The Commission seeks comment on these proposals.

    31. The Commission also seeks comment on whether to allow unlicensed operation in two frequency bands near 183 GHz. The Commission believes that the frequency bands located around a sharp peak in the atmospheric attenuation curve at 183 GHz may be appropriate for unlicensed use. However, no transmissions are permitted in the frequency band at the peak due to Allocations Table footnote US246 stating that no station shall be authorized to transmit in a number of bands including the 182-185 GHz band. The Commission would make spectrum available for unlicensed use on both sides of the attenuation peak, specifically, the 174.8-182 GHz and 185-190 GHz bands. The Commission would remove these bands from the list of restricted bands in § 15.205. The Commission seeks comment on this approach.

    32. The Commission also seeks comment on what technical rules should apply to unlicensed operation within the 122-123 GHz, 174.8-182 GHz, 185-190 GHz and 244-246 GHz frequency bands. In particular, the Commission seeks comment on whether the requirements that apply to the operation of unlicensed devices in the 57-71 GHz band under § 15.255 of the rules are appropriate in these bands. Would the power levels provided in that rule section be high enough for unlicensed equipment to function as intended in the bands under consideration here? If not, what would be a reasonable power level that provides for a practical operational range that would also provide adequate protection to authorized services in the same and nearby spectrum? Could the Commission permit higher power levels in the 174.8-182 GHz and 185-190 GHz bands since they are close to a peak in atmospheric attenuation that is greater than the peak at 60 GHz? The Commission recognizes that the primary allocations for the 174.8-182 GHz and 185-190 GHz bands are for the ISS and for the EESS and the SRS (passive) and that footnote 5.562H limits ISS emissions to levels below the EESS (passive) protection criteria. The Commission also notes that the rules applying to unlicensed use of the 57-71 GHz band do not allow the use of devices on satellites or allow for the use of field disturbance sensors unless the sensors are part of fixed equipment. In addition, these rules permit the use of devices on aircraft only under certain specific circumstances. Therefore, the Commission seeks comment on whether any of these restrictions should apply to unlicensed devices in any or all of the four proposed bands to protect the existing authorized services in these bands, and if so, why? Is there a need to prohibit all operation of devices on aircraft in any of the proposed bands? Would any other modifications to the requirements of § 15.255 be needed to permit unlicensed operation in these bands?

    33. The Commission further seeks comment on whether there are any other bands above 95 GHz that would be suitable for unlicensed use in addition to the 15.2 gigahertz of spectrum identified above. In particular, the Commission seeks comment on allowing unlicensed use of the 116-122 GHz band. The 116-122.25 GHz band is allocated to passive services such as the EESS and SRS (passive) as well as the ISS which is used for communications between satellites with footnote 5.562C limiting ISS emission levels below the EESS (passive) protection criteria. The passive services would likely be compatible only with low density deployments and low power unlicensed uses because of the high sensitivity of these types of passive receivers. Because devices operating under our part 15 rules are limited to transmission at low power levels, and given the increased propagation attenuation from high atmospheric absorption, the Commission believes that part 15 devices may be able to share spectrum with these passive services without causing interference. However, the Commission notes that while this band is close to a peak in the atmospheric attenuation curve, this peak is smaller than the peaks at 60 GHz and 183 GHz. Also, the Commission notes that RAS observations at 115.27 GHz may necessitate geographic restrictions to protect RAS facilities. Accordingly, the Commission seeks comment on whether unlicensed operation should be permitted in the 116-122 GHz band. If so, what technical and other requirements should apply to prevent interference to authorized services in the band? The Commission also seeks comment on any other bands above 95 GHz that may be suitable for unlicensed use and the technical requirements that would be necessary to allow operation in them while protecting authorized services. In particular, the Commission seeks comment on how such use would relate to current and planned passive services.

    34. Potential future applications in these bands includes ultra-high definition video, and high-speed data transmission, such as temporary fiber optic line replacement, chip-to-chip communication within computer equipment, and replacement of computer data cables in data centers with wireless links. Would the rules proposed above for unlicensed devices allow for applications such as these? With respect to non-federal users, the Commission seeks comment on whether the unlicensed spectrum access model is most appropriate for the types of devices that could be operated in the proposed frequency bands, or whether some other spectrum access model would be more appropriate, e.g., licensed or licensed by rule.

    35. As mentioned above, James Whedbee has filed a rulemaking petition requesting that the Commission adopt rules to permit unlicensed device operation in the 95-1000 GHz range. Whedbee advocates that the Commission apply the same technical rules to these unlicensed operations as currently apply in the 57-71 GHz band with a few differences. Whedbee proposes unlicensed devices in 95-1000 GHz be limited to a bandwidth of 500 megahertz. Whedbee also specifies that unlicensed operations be limited to indoors only and that transmitters not be deliberately pointed at windows in a number of bands used by the RAS, EESS (passive), and SRS (passive). According to Whedbee, licensing of transmissions over the range 95-1000 GHz may hinder the technological developments that his proposed rule would permit without licensing. The Commission is reluctant to open such a wide swath of spectrum for unlicensed use because the Commission believes it represents an inefficient use of the spectrum, provides no focus for development of technologies in specific bands and the Commission's proposals would already provide considerable opportunities for unlicensed devices. Nevertheless, in seeking comment on making 15.2 gigahertz of spectrum above 95 GHz available for unlicensed use the Commission grants his petition in part. The Commission also seeks comment broadly on Whedbee's rulemaking petition to the extent his proposal goes beyond what the Commission is seeking comment on and on any costs or benefits that could arise from making the 95-1000 GHz band available for unlicensed use in accordance with his proposal.

    36. The Commission also seeks comment on what rules might be most appropriate for ISM operations in the above 95 GHz band. Part 18 of the rules contains the regulations for ISM equipment.

    37. The Commission has historically treated RF devices that transmit a radio signal for purposes such as measuring the level of a fluid in a container or for measuring some quantifiable property of a material as part 15 devices. The Commission is aware of interest in using the spectrum above 95 GHz for devices that use terahertz spectroscopy to analyze material properties and for imaging applications, which could possibly be considered ISM applications. The Commission seeks comment on whether it should establish a more certain regulatory approach for devices that use the frequencies above 95 GHz. Is the lack of provisions under part 15 for equipment that operates in these higher frequency bands hampering the ability of these new technologies to be approved and, if so should the Commission modify the part 15 rules to allow them? Or would it be more appropriate to routinely treat these terahertz applications as part 18 ISM equipment for which there are already power and field strength limits specified in the rules?

    38. The Commission recognizes that the radiated emission limits in part 18 were originally developed for devices operating at significantly lower frequencies than the Commission is considering here, and seeks comment on how that should affect its analysis. Accordingly, the Commission seeks comment on whether changes to these limits are necessary for operation above 95 GHz. Are the limits in § 18.305 appropriate for these devices? If not, what are the appropriate limits, and in what terms should they be expressed, e.g., field strength, power density, EIRP or some other power-related terms? In addition, the Commission notes that the rules currently specify that radiated emissions from most ISM equipment must be measured at a distance of 300 meters from the equipment. Due to the rapid attenuation of signals and the limitations in measurement devices at frequencies above 95 GHz, measurements at this distance are likely not practical. The Commission therefore seeks comment on the appropriate measurement distance and procedures for determining compliance with the rules. The Commission also seeks comment on whether any other changes to the rules may be required to prevent harmful interference to authorized services. For example, should the Commission restrict operation in certain frequency bands to indoor locations only, and if so, in which frequency bands should such a restriction apply and how could it be enforced?

    39. Experimental Radio service. In this section, the Commission seeks comment on whether to create a new subpart of our part 5 Experimental Radio Service (ERS) rules to better encourage experiments in the spectrum range between 95 GHz and 3 THz. The Commission's part 5 ERS rules prescribe the requirements for authorizing a variety of entities to experiment with new radio technologies, equipment designs, characteristics of radio wave propagation, or service concepts related to the use of the radio spectrum. Experimental operations are not entitled to exclusive use protected from harmful interference from allocated services, and ERS licensees must not cause harmful interference to stations of authorized services, including secondary services.

    40. Proposal for “Spectrum Horizons Experimental Radio Licenses.” Because of the potential for innovation above 95 GHz, and the unique nature of this spectrum (e.g., limited propagation and virtually no existing operations), the Commission believes that certain experimental requirements can be relaxed or modified without creating an unacceptable risk of interference or undermining our longstanding general policies related to the marketing and authorization of equipment. Accordingly, the Commission seeks comment on a proposal to create an experimental radio license for authorizing operation on frequencies from 95 GHz to 3 THz. In keeping with the current structure of part 5, the Commission proposes to add a new subpart I that would provide specific requirements for “Spectrum Horizons Experimental Radio Licenses” and amend subparts A, B, and C, which are generally applicable to all part 5 ERS licenses, as necessary. Since these Spectrum Horizons licensees would be subject to unique requirements that, in many cases, reflect existing or modified versions of the requirements associated with other ERS licensees, the Commission believes this would be the best option for providing prospective licensees with clear requirements, while at the same time maintaining existing rules for the various other forms of ERS authorization. The Commission seeks comment on the assumptions made above and whether a unique subpart of the ERS rules is warranted.

    41. The Commission believes that Spectrum Horizons licenses should have a number of characteristics that differ from existing ERS authorizations, although they would also have a number of characteristics in common. Specifically, the Commission seeks comment on the following proposed rules for these Spectrum Horizon licenses.

    42. Marketing. Marketing of experimental devices or provision of services for hire under product development trial is currently prohibited. While our rules permit market trials under certain circumstances, ERS licensees may sell equipment only to each other under such trials, rather than to market trial participants, and must also ensure that the number of marketed devices is the minimum necessary to conduct the market trial.

    43. In the spectrum range above 95 GHz, the Commission believes that marketing of innovative devices at a relatively early stage of experimentation may be particularly important to permit entrepreneurs to gauge consumer acceptance and to determine whether to proceed to the next stage of the experiment. As operations extend further into the spectrum above 95 GHz, the unique technical issues associated with such operations make capable devices more expensive to produce. Further, these same issues also make it less likely that such devices could be easily adapted for use in the lower spectrum. Thus, entrepreneurs will be reluctant to proceed without a clear signal from consumers that they are interested in purchasing such devices.

    44. The Commission proposes to allow experimental devices used in market trials in these bands to be sold directly to participants to encourage experimentation, as well as to help innovators share device manufacturing costs with potential early adopters who are willing to bear the risks associated with experimental licensing in this range. As a safeguard against such devices causing harmful interference, the Commission will maintain a requirement that the Spectrum Horizons licensee must adhere to the conditions specified in § 5.602(e) of our rules, which states that “trial devices are either rendered inoperable or retrieved . . . at the conclusion of the trial.” The Commission also proposes that the Spectrum Horizons licensee must provide market trial participants with a written disclosure clearly stating that the equipment being purchased is part of an experiment that may be terminated at any time by the licensee or the Commission. Thus, only those individuals who are willing to accept the risk that their devices could be rendered unusable on short notice would be candidates for participating in such market trials. The Commission seeks comment on these proposals.

    45. In this connection, the Commission proposes to require that Spectrum Horizons licensees who choose to market equipment must label any such equipment as “Experimental—Not Authorized for Permanent Use” and carry with it an equipment ID number registered as part of the experimental license process. The Commission notes that a Spectrum Horizons license should have no expectation that an experiment will always lead to the establishment of a permanent service. Thus, a Spectrum Horizons licensee who chooses to market a substantial—rather than a limited—amount of equipment would be increasing its financial risk. The Commission seeks comment on these marketing proposals, and on any alternatives to them.

    46. Eligibility and filing requirements. The Commission seeks comment on whether Spectrum Horizons licenses should be broadly available to qualified persons as generally defined under existing ERS rules. However, to obtain a Spectrum Horizons license, the Commission proposes that a qualified applicant be required to include a narrative statement that sufficiently explains the proposed new technology/potential new service and that incorporates an interference analysis that explains why the proposed experiment would not cause harmful interference to any other spectrum user. The statement should include technical details, including the requested frequency band(s), maximum power, emission designators, area(s) of operation, type(s) of device(s) to be used, and the maximum number of each type of device to be used. The Commission seeks comment on these and any other issues that it should require a Spectrum Horizons service applicant to address in its narrative statement.

    47. Available frequencies. Because all ERS licenses are authorized on a non-interfering basis, and such applications must be coordinated with federal users via NTIA, the Commission proposes that subpart I specify that Spectrum Horizons licenses be permitted on any frequency in the range of 95 GHz-3 THz, provided there are no objections raised in the coordination process. Applicants would be expected to address any allocation footnotes and any known use(s) of the requested frequency or frequencies in the spectrum analysis that they would be required to provide in their narrative statements discussed above. Additionally, applicants must ensure that the significant number of passive services that use spectrum above 95 GHz are protected from harmful interference and, if proposing to use spectrum that is exclusively allocated for passive use(s), they must explain why nearby bands that have non-passive allocations are not adequate for the experiment. The Commission seeks comment on this proposal. Commenters who propose limitations on available frequencies should identify specific bands where they believe that Spectrum Horizons experiments should be prohibited or restricted, including references to pertinent footnotes listed in the Table of Frequency Allocations. The Commission proposes to list in subpart I all bands that the Commission concludes should be prohibited or restricted for Spectrum Horizons experimental use.

    48. Scope of license grant. The Commission proposes to provide Spectrum Horizons licensees with substantial flexibility to conduct long-term experiments over a wide geographic area and frequency range, market equipment if necessary, and adapt their program of experimentation as needed. In making these proposals, the Commission emphasizes the overriding considerations that Spectrum Horizons licensees—like all ERS licensees—would have to accept to operate: (1) Licensees would be prohibited from causing harmful interference to any established radio service, and would be solely responsible for promptly remedying any such interference; (2) licenses would be non-exclusive; and (3) there would be no assurance that experimentation would lead to the establishment of an authorized service. Otherwise, the Commission asks for comment on what specific technical rules in subpart C should or should not be applicable to Spectrum Horizons stations.

    49. License term and interim reporting requirement. The Commission seeks comment on whether to extend the experimental license term for Spectrum Horizons licenses and, if so, for how long. Would a longer license term, such as 10 years, encourage entrepreneurs to make investments in this portion of the spectrum where there has been relatively minimal experimentation and, thus, limited “real world” experiences to guide the experimental planning process? If the Commission provides longer license terms, the Commission proposes to require an interim report be submitted to the Commission at the half-way point of the license term to provide the public with information about the progress of the experiment. The Commission also seeks comment on whether a longer Spectrum Horizons license would be eligible for renewal.

    50. Other aspects. The Commission seeks comment on how best to handle geographic, frequency, or technical limits on experiments, and limits on the number of devices or their type, including whether these limits should be decided on a case-by-case basis. The Commission also seeks comment on how applicants should be required to justify their proposed parameters in their narrative statements. In order to avoid the filing of subsequent requests to modify those parameters during the license term, the Commission proposes that applicants request the maximum parameters that they may ultimately use, even if their initial plans do not require those maximums. The Commission acknowledges that circumstances may change, however, and would still consider granting applications to modify Spectrum Horizons licenses.

    51. To better ensure that Spectrum Horizons experiments do not cause harmful interference, the Commission proposes to adopt rules for such experiments similar to our existing “station identification,” “responsible party,” and “stop buzzer” rules. However, consistent with our rules for conventional experimental licenses, the Commission proposes to permit Spectrum Horizons licenses to be transferred, if the Commission finds that to be in the public interest and gives its consent in writing. Comments are requested on each of these proposals.

    52. RF Exposure Limits. RF devices must comply with the Commission's RF exposure limits that are currently specified up to 100 GHz. The power density limits specified for general population and occupational exposure at 100 GHz are 1 mW/cm2 and 5 mW/cm2 respectively for whole-body continuous exposure. The Commission notes that these limits could in principle be applied up to infrared wavelengths, although the Commission does not suggest that there should be any particular changes to our rules at this time. The Commission also notes that the issues of averaging area and averaging time for localized and time varying exposure are the subject of ongoing consideration at lower frequencies in the context of developing laboratory test procedures for specific devices. However, the Commission has an open proceeding in which it is broadly examining its RF exposure rules and policies, which could potentially influence how such devices are authorized in the future. In the RF Inquiry of that separate open proceeding, the Commission specifically asks whether it should expand the frequency scope of its exposure rules above the present maximum of 100 GHz. The Commission proposes that it make no changes to its present rules limiting human exposure to RF energy until it considers the broader issues brought forth in its RF Inquiry.

    53. Equipment Authorization Matters. As the Commission has noted previously in the Spectrum Frontiers proceeding, there are unique technical challenges specific to demonstrating compliance with our rules for the purpose of equipment authorization of millimeter-wave devices. As technology evolves to address the technical challenges related to perform compliance measurements above 95 GHz (with respect to propagation, interference protection, modulation techniques, transmission security, etc.), the Commission expects that OET, in its capacity as the technical administrator of the Commission's part 2, 5, 15, and 18 rules, will provide guidance on appropriate measurement techniques through its knowledge database publications as products are developed, seeking notice and comment as appropriate. To inform this guidance, the Commission generally requests information on relevant research as it addresses measurement techniques to verify that devices meet the electromagnetic compatibility (EMC) technical rules; the Commission discusses specific concerns in more detail below.

    54. EMC measurements. In this Notice, the Commission seeks comment on what technical rules should apply to operation in spectrum above 95 GHz. At this time, the FCC laboratory has offered generally limited guidance related to the technical procedures that could be used to demonstrate the compliance of millimeter-wave devices with such rules. The Commission recognizes that radiated field strength measurements at frequencies above 1 GHz present challenges due to the relatively high values of cable loss and antenna factor. Similarly, a conducted method of measurement would only be effective if the device and other mixer waveguides are both accessible. The Commission seeks information on fundamental aspects of measurements of radiated and conducted emissions at these frequencies. What are ways to demonstrate compliance with procedures which are practical, repeatable, and do not have large margins of error? Specifically, §§ 15.255 and 15.257 of our rules apply to the use of an RF detector that has been specified to make millimeter-wave measurements. Is the use of an RF detector an appropriate method for measuring the frequencies above 95 GHz? Are there industry measurement standards available for RF devices operating above 95 GHz? The Commission seeks further comment on whether and how present procedures can be adapted or modified to appropriately address the specific technical challenges presented by millimeter-wave devices.

    55. Out-of-band and spurious emissions measurement. At the present time, the FCC laboratory guidance does offer a procedure to measure the out-of-band and spurious emissions from devices with multiple antennas. The measurement challenges discussed above are often accentuated in the case of out-of-band and spurious emissions due to the low levels of these emissions relative to the fundamental emissions. The Commission seeks comment on what other measurement procedures, such as those in ANSI C63.10-2013, may be used and whether the Commission needs to provide additional guidance (e.g., appropriate measurement bandwidth, cut-off frequency, etc.) to determine compliance with the out-of-band and spurious emission limits for millimeter-wave devices considering the technical challenges of such measurements.

    56. Equipment authorization procedures. The Commission proposes to parallel the existing 70/80/90 GHz service rules for the bands the Commission proposes for fixed services and similarly adapt our UMFUS rules for the bands the Commission proposes for mobile services. Transmitters used for operation in accordance with the Commission's part 101 Fixed Microwave Services rules are generally authorized via our Suppliers Declaration of Conformity (SDoC) procedure. Transmitters used for part 30 UMFUS mobile operations are required to be authorized via the certification procedure. The Commission seeks comment on which equipment authorization procedure would be most appropriate for any fixed or mobile service adopted under the proposals set forth herein, or whether some other authorization procedure would be more appropriate.

    57. Rulemaking and Waiver Petitions. Battelle Petition. Battelle Memorial Institute, Inc. (Battelle) filed a petition for rulemaking in February 2014 asking the Commission to commence a rulemaking to propose service rules for fixed use of the 102-109.5 GHz band. Battelle's proposed rules draw extensively from the 70/80/90 GHz rules. Because the rules the Commission is proposing for the 102-109.5 GHz band are similar to what Battelle has proposed, the Commission considers their rulemaking petition granted in part. Battelle and other interested parties are able to participate in this rulemaking and will have ample opportunity to comment on the rules the Commission is proposing and therefore the Commission dismisses Battelle's petition from further consideration.

    58. ZenFi Waiver. ZenFi Networks, Inc. (ZenFi), which holds a nationwide, non-exclusive license under call sign WQUN758 in the 71-76 GHz, 81-86 GHz, and 92-95 GHz bands, seeks a waiver of the applicable part 1 and subpart Q of part 101 rules to permit use of the 102-109.5 GHz band under its existing license and to register individual point-to-point links at locations within the New York City, Chicago, Washington, DC, and San Francisco metropolitan markets using the regulatory framework established for registering links in the 70/80/90 GHz bands. ZenFi states that it understands that grant of its waiver request will serve as a pre-requisite for coordinating and registering individual point-to-point links in the 102-109.5 GHz band in the four identified markets and that its use of the 102-109.5 GHz band would continue pending resolution of the Battelle rulemaking proceeding.

    59. On October 13, 2015, the Commission's Wireless Telecommunications Bureau released a public notice seeking comment on the ZenFi Waiver Request. Battelle and SMG Holdings, LLC (SMG) support grant of the ZenFi Waiver Request, and SMG asks that the Commission extend to it any relief granted to ZenFi.

    60. The Commission denies the ZenFi Waiver Request and SMG's informal request seeking waiver to use the 102-109.5 GHz band because ZenFi and SMG have not met the standard for a waiver and grant of a waiver would improperly judge the outcome of the rulemaking proceeding the Commission has begun with this NPRM. First, ZenFi has failed to justify a waiver based on special circumstances because there is nothing unique or unusual about its situation. It is no different than any other operator who has potential interest in using the above 95 GHz bands, and has not demonstrated a need to use this band that cannot be met by deployment in another band. Second, ZenFi has not shown that a deviation from the general rule would be in the public interest. Although ZenFi generally discusses its intent to address the growing demand for wireless links capable of delivering 10GE, it fails to reference a specific proposed deployment that would require a waiver, or discuss the extent to which its proposed deployments could not be reasonably achieved on other spectrum. ZenFi has also failed to distinguish itself from any other party who would potentially be interested in using the 102-109.5 GHz band. ZenFi also fails to satisfy the third prong, because a waiver grant here would essentially replace the current rulemaking process, undermining the validity of that final rule. This is particularly true in this band where the Commission lacks any actual service, licensing, or technical rules. What ZenFi is requesting is not a waiver of the existing rules, but the authority to operate absent any established rules governing the operations. As noted above, there are a series of issues that the Commission must decide before it authorizes service in the 102-109.5 GHz band and develops service rules for that band, including whether to adopt the existing 70/80/90 GHz licensing regime for this band. The Commission does not believe that it would be a prudent policy to subject licensees and their customers to this potential disruption, particularly in the absence of any specific, demonstrated need for interim operation in the band. While the Commission may ultimately adopt rules similar to what Battelle has proposed, ZenFi (and SMG) have not justified the need for a waiver prior to our developing a full record on the proposed changes.

    61. McKay Brothers Waiver. McKay Brothers has requested that if the Commission were not to issue a notice of proposed rulemaking regarding Battelle's petition, the Commission should consider granting a waiver of the Commission's rules to permit operations similar to ZenFi's waiver request. Because the Commission has deemed Battelle's rulemaking petition granted-in-part, the Commission shall likewise consider McKay Brothers request granted-in-part and dismiss it from further considerations.

    62. Procedural Matters. Ex Parte Rules—Permit-but-disclose. Pursuant to § 1.1200(a) of the Commission's rules, this NPRM 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.

    63. Comment period and procedures. 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.

    64. 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 Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).

    65. Availability of Documents. Comments, reply comments, and ex parte submissions will be publicly available online via ECFS. These documents will also 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. 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.

    66. Initial Regulatory Flexibility Analysis. As required by the Regulatory Flexibility Act of 1980 (RFA), as amended, the Commission has prepared an Initial Regulatory Flexibility Analysis (IRFA) regarding the possible significant economic impact on small entities of the policies and rules adopted in the NPRM, which is found below. The Commission request written public comment on the IRFA. Comments must be filed in accordance with the same deadlines as comments filed in response to the NRPM and must have a separate and distinct heading designating them as responses to the IRFA. The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, will send a copy of the Notice, including the IRFA, to the Chief Counsel for Advocacy of the Small Business Administration.

    67. Paperwork Reduction Analysis. This document contains proposed new information collection requirements. The Commission, as part of its continuing effort 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, Public Law 104-13. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), the Commission sought specific comment on how they might further reduce the information collection burden for small business concerns with fewer than 25 employees.

    I. ORDERING CLAUSES

    68. It is ordered, pursuant to the authority found in sections 1, 2, 4, 7, 201, 301, 302a, 303, 307, 310, and 332 of the Communications Act of 1934, 47 U.S.C. 151, 152, 154, 157, 201, 301, 302a, 303, 307, 310, 332, section 706 of the Telecommunications Act of 1996, as amended, 47 U.S.C. 1302, and § 1.411 of the Commission's rules, 47 CFR 1.411, that this NPRM is hereby adopted.

    69. It is further ordered, pursuant to section 4(i) of the Communications Act of 1934, 47 U.S.C. 154(i), and § 1.925 of the Commission's rules, that the Requests for Waivers filed by ZenFi Networks, Inc. on July 22, 2015, McKay Brothers, LLC on August 10, 2015, and SMG Holdings, LLC on November 12, 2015 are denied.

    70. It is ordered, pursuant to section 4(i) of the Communications Act of 1934, 47 U.S.C. 154(i), and § 1.407 of the Commission's rules, that the Petition for Rulemaking of Battelle Memorial Institute, Inc. filed on February 6, 2014 is granted-in-part as described herein and is otherwise denied.

    71. It is ordered, pursuant to section 4(i) of the Communications Act of 1934, 47 U.S.C. 154(i), and § 1.407 of the Commission's rules, that the Petition for Rulemaking of James Edwin Whedbee filed on November 5, 2013 is granted-in-part as described herein.

    72. It is ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this NPRM, including the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

    List of Subjects 47 CFR Part 1

    Environmental impact statements.

    47 CFR Part 2

    Radio.

    47 CFR Part 5

    Reporting and recordkeeping requirements and Radio.

    47 CFR Part 15

    Communications equipment and Radio.

    47 CFR Part 101

    Communications equipment and Radio.

    Federal Communications Commission.

    Marlene H. Dortch, Secretary.
    Proposed Rules

    For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR parts 1, 2, 5, 15, and 101 as follows:

    PART 1—PRACTICE AND PROCEDURE 1. The authority citation for part 1 continues to read as follows: Authority:

    47 U.S.C. 34-39, 151, 154(i), 154(j), 155, 157, 160, 201, 225, 227, 303, 309, 310, 332, 1403, 1404, 1451, 1452, 1455; 28 U.S.C. 2461 note.

    2. Amend § 1.1307 by revising the last entry of Table 1 in paragraph (b)(1) to read as follows:
    § 1.1307 Actions that may have a significant environmental effect, for which Environmental Assessments (EAs) must be prepared.

    (b) * * *

    (1) * * *

    Service (title 47 CFR rule part) Evaluation required if: *         *         *         *         *         *         * 70/80/90 GHz and above 95 GHz Bands (subpart Q of part 101) Non-building-mounted antennas: height above ground level to lowest point of antenna < 10 m and power > 1640 W EIRP.
  • Building-mounted antennas: power > 1640 W EIRP, licensees are required to attach a label to transceiver antennas that:
  • (1) provides adequate notice regarding potential radiofrequency safety hazards, e. g., information regarding the safe minimum separation distance required between users and transceiver antennas; and
  • (2) references the applicable FCC-adopted limits for radio-frequency exposure specified in § 1.1310.
  • PART 2—FREQUENCY ALLOCATIONS AND RADIO TREATY MATTERS; GENERAL RULES AND REGULATIONS 3. The authority citation for part 2 continues to read as follows: Authority:

    47 U.S.C. 154, 302a, 303, and 336, unless otherwise noted.

    4. Amend § 2.803 by revising paragraph (c)(1) to read as follows:
    § 2.803 Marketing of radio frequency devices prior to equipment authorization.

    (c) * * *

    (1) Activities conducted under market trials pursuant to subpart H of part 5 or in accordance with a Spectrum Horizons experimental radio license issued pursuant to subpart I of part 5.

    PART 5—EXPERIMENTAL RADIO SERVICE 5. The authority citation for part 5 continues to read as follows: Authority:

    Secs. 4, 302, 303, 307, 336 48 Stat. 1066, 1082, as amended; 47 U.S.C. 154, 302, 303, 307, 336. Interpret or apply sec. 301, 48 Stat. 1081, as amended; 47 U.S.C. 301.

    6. Amend § 5.1 by revising paragraph (b) to read as follows:
    § 5.1 Basis and purpose.

    (b) Purpose. The rules in this part provide the conditions by which portions of the radio frequency spectrum may be used for the purposes of experimentation and innovation, product development, and market trials.

    7. Amend § 5.3 by revising paragraph (l) and adding paragraph (m) to read as follows:
    § 5.3 Scope of service.

    (l) Experimentation in innovative new devices and services that operate on frequencies above 95 GHz.

    (m) Types of experiments that are not specifically covered under paragraphs (a) through (l) of this section will be considered upon demonstration of need for such additional types of experiments.

    8. Amend § 5.54 by redesignating paragraph (f) as paragraph (g) and adding a new paragraph (f) to read as follows:
    § 5.54 Types of authorizations available.

    (f) Spectrum Horizons experimental radio license. This type of license is issued for the purpose of testing potentially innovative devices and services on frequencies above 95 GHz, where there are no existing service rules.

    9. Amend § 5.55 by revising paragraphs (c) and (d) to read as follows:
    § 5.55 Filing of applications.

    (c) Each application for station authorization shall be specific and complete with regard to the information required by the application form and this part.

    (1) Conventional and Spectrum Horizons license and STA applications shall be specific as to station location, proposed equipment, power, antenna height, and operating frequencies.

    (2) Broadcast license applicants shall comply with the requirements in subpart D of this part; Program license applicants shall comply with the requirements in subpart E of this part; Medical Testing license applicants shall comply with the requirements in subpart F of this part; Compliance Testing license applicants shall comply with the requirements in subpart G of this part; and Spectrum Horizons license applicants shall comply with the requirements in subpart I of this part.

    (d) Filing conventional, program, medical, compliance testing, and Spectrum Horizons experimental radio license applications:

    (1) Applications for radio station authorization shall be submitted electronically through the Office of Engineering and Technology website http://www.fcc.gov/els.

    (2) Applications for special temporary authorization shall be filed in accordance with the procedures of § 5.61.

    (3) Any correspondence relating thereto that cannot be submitted electronically shall instead be submitted to the Commission's Office of Engineering and Technology, Washington, DC 20554.

    10. Amend § 5.59 by revising the paragraph (a) subject heading and paragraph (a)(1) to read as follows:
    § 5.59 Forms to be used.

    (a) Application for conventional, program, medical, compliance testing, and Spectrum Horizons experimental radio licenses—(1) Application for new authorization or modification of existing authorization. Entities must submit FCC Form 442.

    12. Amend § 5.71 by adding paragraph (d) to read as follows:
    § 5.71 License period.

    (d) Spectrum Horizons experimental radio license. Licenses are issued for a term of 10 years.

    13. Amend § 5.79 by revising the section heading and adding paragraph (c) to read as follows:
    § 5.79 Transfer and assignment of station authorization for conventional, program, medical testing, Spectrum Horizons, and compliance testing experimental radio licenses.

    (c) A station authorization for a Spectrum Horizons experimental radio license, the frequencies authorized to be used by the grantee of such authorization, and the rights therein granted by such authorization shall be transferred, assigned, or in any manner either voluntarily or involuntarily disposed of, if the Commission decides that such a transfer is in the public interest and gives its consent in writing.

    14. Amend § 5.107 by adding paragraph (f) to read as follows:
    § 5.107 Transmitter control requirements.

    (f) Spectrum Horizons experimental radio licenses. The licensee shall ensure that transmissions are in conformance with the requirements in subpart I of this part and that the station is operated only by persons duly authorized by the licensee.

    15. Amend § 5.115 by adding paragraph (d) to read as follows:
    § 5.115 Station identification.

    (d) Spectrum Horizons experimental radio licenses. Spectrum Horizons experimental radio licenses shall transmit identifying information sufficient to identify the license holder and the geographic coordinates of the station. This information shall be transmitted at the end of each complete transmission except that: this information is not required at the end of each transmission for projects requiring continuous, frequent, or extended use of the transmitting apparatus, if, during such periods and in connection with such use, the information is transmitted at least once every thirty minutes. The station identification shall be transmitted in clear voice or Morse code. All digital encoding and digital modulation shall be disabled during station identification.

    16. Amend § 5.121 by revising paragraph (a) to read as follows:
    § 5.121 Station record requirements.

    (a) For conventional, program, medical testing, compliance testing, and Spectrum Horizons experimental radio stations, the current original authorization or a clearly legible photocopy for each station shall be retained as a permanent part of the station records, but need not be posted. Station records are required to be kept for a period of at least one year after license expiration.

    17. Add subpart I, consisting of §§ 5.701 through 5.705, to read as follows: Subpart I—Spectrum Horizons Experimental Radio Licenses Sec. 5.701 Applicable rules. 5.702 Licensing requirement—necessary showing. 5.703 Responsible party. 5.704 Marketing of devices under Spectrum Horizons experimental radio licenses. 5.705 Interim report. Subpart I—Spectrum Horizons Experimental Radio Licenses
    § 5.701 Applicable rules.

    In addition to the rules in this subpart, Spectrum Horizons experimental radio station applicants and licensees shall follow the rules in subparts B and C of this part. In case of any conflict between the rules set forth in this subpart and the rules set forth in subparts B and C of this part, the rules in this subpart shall govern.

    § 5.702 Licensing requirement—necessary showing.

    Each application must include a narrative statement describing in detail how its experiment could lead to the development of innovative devices and/or services on frequencies above 95 GHz. This statement must sufficiently explain the proposed new technology/potential new service and incorporate an interference analysis that explains why the proposed experiment would not cause harmful interference to any other spectrum user. The statement should include technical details, including the requested frequency band(s), maximum power, emission designators, area(s) of operation, type(s) of device(s) to be used, and the maximum number of each type of device to be used.

    § 5.703 Responsible party.

    (a) Each program experimental radio applicant must identify a single point of contact responsible for all experiments conducted under the license and ensuring compliance with all applicable FCC rules.

    (b) The responsible individual will serve as the initial point of contact for all matters involving interference resolution and must have the authority to discontinue any and all experiments being conducted under the license, if necessary.

    (c) The license application must include the name of the responsible individual and contact information at which the person can be reached at any time of the day; this information will be listed on the license. Licensees are required to keep this information current.

    § 5.704 Marketing of devices under Spectrum Horizons experimental radio licenses.

    Unless otherwise stated in the instrument of authorization, devices operating in accordance with a Spectrum Horizons experimental radio license may be marketed subject to the following conditions:

    (a) Marketing of devices (as defined in § 2.803 of this chapter) and provision of services for hire is permitted before the radio frequency device has been authorized by the Commission, provided that the number of devices to be marketed shall be the minimum quantity of devices necessary to conduct the experiment as approved by the Commission.

    (b) Licensees are required to ensure that trial devices are either rendered inoperable or retrieved by them from trial participants at the conclusion of the trial. Licensees are required to notify trial participants in advance that operation of the trial device is subject to this condition.

    (c) The size and scope of the experiment are subject to limitations as the Commission shall establish on a case-by-case basis. If the Commission subsequently determines that the experiment is not so limited, authorization shall be immediately terminated.

    § 5.705 Interim report.

    Licensee must submit to the Commission an interim progress report 5 years after grant of its license.

    PART 15—RADIO FREQUENCY DEVICES 18. The authority citation for part 15 continues to read as follows: Authority:

    47 U.S.C. 154, 302a, 303, 304, 307, 336, 544a, and 549.

    19. Amend § 15.205 by revising paragraph (d)(4) to read as follows:
    § 15.205 Restricted bands of operation.

    (d) * * *

    (4) Any equipment operated under the provisions of § 15.255, § 15.256 in the frequency band 75-85 GHz, § 15.257, or § 15.258 of this part.

    20. Add § 15.258 to subpart C to read as follows:
    § 15.258 Operation in the bands 122-123 GHz, 174.8-182 GHz, 185-190 GHz and 244-246 GHz.

    (a)(1) Operation under the provisions of this section is not permitted for equipment used on satellites.

    (2) Operation on aircraft is permitted under the following conditions:

    (i) When the aircraft is on the ground.

    (ii) While airborne, only in closed exclusive on-board communication networks within the aircraft, with the following exceptions:

    (A) Equipment shall not be used in wireless avionics intra-communication (WAIC) applications where external structural sensors or external cameras are mounted on the outside of the aircraft structure.

    (B) Equipment shall not be used on aircraft where there is little attenuation of RF signals by the body/fuselage of the aircraft. These aircraft include, but are not limited to, toy/model aircraft, unmanned aircraft, crop-spraying aircraft, aerostats, etc.

    (b) Emission levels within the 122-123 GHz, 174.8-182 GHz, 185-190 GHz and 244-246 GHz bands shall not exceed the following equivalent isotropically radiated power (EIRP) as measured during the transmit interval:

    (1) The average power of any emission shall not exceed 40 dBm and the peak power of any emission shall not exceed 43 dBm; or

    (2) For fixed point-to-point transmitters located outdoors, the average power of any emission shall not exceed 82 dBm, and shall be reduced by 2 dB for every dB that the antenna gain is less than 51 dBi. The peak power of any emission shall not exceed 85 dBm, and shall be reduced by 2 dB for every dB that the antenna gain is less than 51 dBi.

    (i) The provisions in this paragraph for reducing transmit power based on antenna gain shall not require that the power levels be reduced below the limits specified in paragraph (b)(1) of this section.

    (ii) The provisions of § 15.204(c)(2) and (4) that permit the use of different antennas of the same type and of equal or less directional gain do not apply to intentional radiator systems operating under this provision. In lieu thereof, intentional radiator systems shall be certified using the specific antenna(s) with which the system will be marketed and operated. Compliance testing shall be performed using the highest gain and the lowest gain antennas for which certification is sought and with the intentional radiator operated at its maximum available output power level. The responsible party, as defined in § 2.909 of this chapter, shall supply a list of acceptable antennas with the application for certification.

    (3) The peak power shall be measured with an RF detector that has a detection bandwidth that encompasses the band of operation, e.g., 122-123 GHz, 174.8-182 GHz, 185-190 GHz or 244-246 GHz, and that has a video bandwidth of at least 10 MHz. The average emission levels shall be measured over the actual time period during which transmission occurs.

    (c) Limits on spurious emissions:

    (1) The power density of any emissions outside the band of operation, e.g., 122-123 GHz, 174.8-182 GHz, 185-190 GHz or 244-246 GHz, shall consist solely of spurious emissions.

    (2) Radiated emissions below 40 GHz shall not exceed the general limits in § 15.209.

    (3) Between 40 GHz and 200 GHz, the level of these emissions shall not exceed 90 pW/cm2 at a distance of 3 meters.

    (4) The levels of the spurious emissions shall not exceed the level of the fundamental emission.

    (d) Except as specified paragraph (d)(1) of this section, the peak transmitter conducted output power shall not exceed 500 mW. Depending on the gain of the antenna, it may be necessary to operate the intentional radiator using a lower peak transmitter output power in order to comply with the EIRP limits specified in paragraph (b) of this section.

    (1) Transmitters with an emission bandwidth of less than 100 MHz must limit their peak transmitter conducted output power to the product of 500 mW times their emission bandwidth divided by 100 MHz. For the purposes of this paragraph, emission bandwidth is defined as the instantaneous frequency range occupied by a steady state radiated signal with modulation, outside which the radiated power spectral density never exceeds 6 dB below the maximum radiated power spectral density in the band, as measured with a 100 kHz resolution bandwidth spectrum analyzer. The center frequency must be stationary during the measurement interval, even if not stationary during normal operation (e.g., for frequency hopping devices).

    (2) Peak transmitter conducted output power shall be measured with an RF detector that has a detection bandwidth that encompasses the band of operation, e.g., 122-123 GHz, 174.8-182 GHz, 185-190 GHz or 244-246 GHz, and that has a video bandwidth of at least 10 MHz.

    (3) For purposes of demonstrating compliance with this paragraph, corrections to the transmitter conducted output power may be made due to the antenna and circuit loss.

    (e) Frequency stability: Fundamental emissions must be contained within the frequency bands specified in this section during all conditions of operation. Equipment is presumed to operate over the temperature range −20 to + 50 degrees Celsius with an input voltage variation of 85% to 115% of rated input voltage, unless justification is presented to demonstrate otherwise.

    (f) Regardless of the power density levels permitted under this section, devices operating under the provisions of this section are subject to the radiofrequency radiation exposure requirements specified in §§ 1.1307(b), 2.1091 and 2.1093 of this chapter, as appropriate. Applications for equipment authorization of devices operating under this section must contain a statement confirming compliance with these requirements for both fundamental emissions and unwanted emissions. Technical information showing the basis for this statement must be submitted to the Commission upon request.

    (g) Any transmitter that has received the necessary FCC equipment authorization under the rules of this chapter may be mounted in a group installation for simultaneous operation with one or more other transmitter(s) that have received the necessary FCC equipment authorization, without any additional equipment authorization. However, no transmitter operating under the provisions of this section may be equipped with external phase-locking inputs that permit beam-forming arrays to be realized.

    (h) Measurement procedures that have been found to be acceptable to the Commission in accordance with § 2.947 of this chapter may be used to demonstrate compliance.

    PART 101—FIXED MICROWAVE SERVICES 21. The authority citation for part 101 continues to read as follows: Authority:

    47 U.S.C. 154 and 303.

    22. Amend § 101.63 by revising paragraph (b) to read as follows:
    § 101.63 Period of construction; certification of completion of construction.

    (b) For the 71-76 GHz, 81-86 GHz, 92-95 GHz, 95-100 GHz, 102-109.5 GHz, 111.8-114.25 GHz, 122.25-123 GHz, 130-134 GHz, 141-148.5 GHz, 151.5-158.5 GHz, 174.5-174.8 GHz, 231.5-232 GHz, and 240-241 GHz bands, the 12-month construction period will commence on the date of each registration of each individual link; adding links will not change the overall renewal period of the license.

    23. § 101.101 is amended by adding ten entries in numerical order to read as follows:
    § 101.101 Frequency availability. Frequency band
  • (MHz)
  • Radio service Common carrier
  • (part 101)
  • Private radio
  • (part 101)
  • Broadcast auxiliary
  • (part 74)
  • Other
  • (parts 15, 21, 22, 24, 25, 74, 78 & 100)
  • Notes
    *         *         *         *         *         *         * 95,000-100,000 CC OFS 25 F/M/TF. 102,000-109,500 CC OFS 25 F/M/TF. 111,800-114,250 CC OFS 25 F/M/TF. 122,250-123,000 CC OFS 25 F/M/TF. 130,000-134,000 CC OFS 25 F/M/TF. 141,000-148,500 CC OFS 25 F/M/TF. 151,500-158,500 CC OFS 25 F/M/TF. 174,500-174,800 CC OFS 25 F/M/TF. 231,500-232,000 CC OFS 25 F/M/TF. 240,000-241,000 CC OFS 25 F/M/TF.
    24. § 101.105 is amended by revising paragraphs (a)(5) introductory text and (c)(2)(i) and (ii) to read as follows:
    § 101.105 Interference protection criteria.

    (a) * * *

    (5) 71,000-76,000 MHz, 81,000-86,000 MHz, 102-109.5 GHz, 111.8-114.25 GHz, 122.25-123 GHz, 130-134 GHz, 141-148.5 GHz, 151.5-158.5 GHz, 174.5-174.8 GHz, 231.5-232 GHz, and 240-241 GHz bands. In these bands the following interference criteria shall apply:

    (c) * * *

    (2) * * *

    (i) Co-Channel Interference. Both side band and carrier-beat, applicable to all bands; the existing or previously authorized system must be afforded a carrier to interfering signal protection ratio of at least 90 dB, except in the 952-960 MHz band where it must be 75 dB, and in the 71-76 GHz, 81-86 GHz, 95-100 GHz, 102-109.5 GHz, 111.8-114.25 GHz, 122.25-123 GHz, 130-134 GHz, 141-148.5 GHz, 151.5-158.5 GHz, 174.5-174.8 GHz, 231.5-232 GHz, and 240-241 GHz bands where the criteria in paragraph (a)(5) of this section applies, and in the 92,000-94,000 MHz and 94,100-95,000 MHz bands, where the criteria in paragraph (a)(6) of this section applies; or

    (ii) Adjacent Channel Interference. Applicable to all bands; the existing or previously authorized system must be afforded a carrier to interfering signal protection ratio of at least 56 dB, except in the 71-76 GHz, 81-86 GHz, 95-100 GHz, 102-109.5 GHz, 111.8-114.25 GHz, 122.25-123 GHz, 130-134 GHz, 141-148.5 GHz, 151.5-158.5 GHz, 174.5-174.8 GHz, 231.5-232 GHz, and 240-241 GHz bands where the criteria in paragraph (a)(5) of this section applies, and in the 92-94 GHz and 94-95 GHz bands, where the criteria in paragraph (a)(6) of this section applies.

    25. Amend § 101.107 by adding ten entries to the table in paragraph (a) in numerical order and revising footnote 8 to read as follows:
    § 101.107 Frequency tolerance.

    (a) * * *

    Frequency
  • (MHz)
  • Frequency
  • tolerance
  • (percent)
  • *    *    *    *    * 95,000-100,000 8 102,000-109,500 8 111,800-114,250 8 122,250-123,000 8 130,000-134,000 8 141,000-148,500 8 151,500-158,500 8 174,500-174,800 8 231,500-232,000 8 240,000-241,000 8 *    *    *    *    * 8 Equipment authorized to be operated in the 71-76 GHz, 81-86 GHz, 92-95 GHz, 95-100 GHz, 102-109.5 GHz, 111.8-114.25 GHz, 122.25-123 GHz, 130-134 GHz, 141-148.5 GHz, 151.5-158.5 GHz, 174.5-174.8 GHz, 231.5-232 GHz, and 240-241 GHz bands is exempt from the frequency tolerance requirement noted in the table of paragraph (a) of this section.
    26. Amend § 101.109 by adding ten entries to the table in paragraph (c) in numerical order to read as follows:
    § 101.109 Bandwidth.

    (c) * * *

    Frequency band
  • (MHz)
  • Maximum
  • authorized bandwidth
  • *    *    *    *    * 95,000 to 100,000 5 GHz 102,000 to 109,500 7.5 GHz 111,800 to 114,250 2.45 GHz 122,250 to 123,000 750 MHz 130,000 to 134,000 4 GHz 141,000 to 148,500 7.5 GHz 151,500 to 158,500 7.5 GHz 174,500 to 174,800 300 MHz 231,500 to 232,000 500 MHz 240,000 to 241,000 1 GHz
    27. Amend § 101.111 by revising paragraph (a)(2)(v) to read as follows:
    § 101.111 Emission limitations.

    (a) * * *

    (2) * * *

    (v) The emission mask for the 71-76 GHz, 81-86 GHz, 92-95 GHz, 95-100 GHz, 102-109.5 GHz, 111.8-114.25 GHz, 122.25-123 GHz, 130-134 GHz, 141-148.5 GHz, 151.5-158.5 GHz, 174.5-174.8 GHz, 231.5-232 GHz, and 240-241 GHz bands used in the equation in paragraph (a)(2)(ii) of this section applies only to the edge of each channel, but not to sub-channels established by licensees. The value of P in the equation is for the percentage removed from the carrier frequency and assumes that the carrier frequency is the center of the actual bandwidth used. The value of B will always be 500 MHz. In the case where a narrower sub-channel is used within the assigned bandwidth, such sub-carrier will be located sufficiently far from the channel edges to satisfy the emission levels of the mask. The mean output power used in the calculation is the sum of the output power of a fully populated channel.

    28. Amend § 101.113 by adding ten entries to the table in paragraph (a) in numerical order to read as follows:
    § 101.113 Transmitter power limitations.

    (a) * * *

    Frequency band
  • (MHz)
  • Maximum allowable EIRP ¹ ² Fixed 1 2
  • (dBW)
  • Mobile
  • (dBW)
  • *         *         *         *         *         *         * 95,000-100,000 25 dBW/MHz 25 dBW/MHz. 102,000-109,500 25 dBW/MHz 25 dBW/MHz. 111,800-114,250 25 dBW/MHz 25 dBW/MHz. 122,250-123,000 25 dBW/MHz 25 dBW/MHz. 130,000-134,000 25 dBW/MHz 25 dBW/MHz. 141,000-148,500 25 dBW/MHz 25 dBW/MHz. 151,500-158,500 25 dBW/MHz 25 dBW/MHz. 174,500-174,800 25 dBW/MHz 25 dBW/MHz. 231,500-232,000 25 dBW/MHz 25 dBW/MHz. 240,000-241,000 25 dBW/MHz 25 dBW/MHz.
    29. Amend § 101.115 by adding twenty entries to the table in paragraph (b) in numerical order and revising footnote 15 to read as follows:
    § 101.115 Directional antennas.

    (b) * * *

    Frequency
  • (MHz)
  • Category Maximum beam width to 3 dB points 1
  • (included angle in
  • degrees)
  • Minimum antenna gain
  • (dBi)
  • Minimum radiation suppression to angle in degrees from centerline of main beam in decibels
  • to
  • 10°
  • 10°
  • to
  • 15°
  • 15°
  • to
  • 20°
  • 20°
  • to
  • 30°
  • 30°
  • to
  • 100°
  • 100°
  • to
  • 140°
  • 140°
  • to
  • 180°
  • *         *         *         *         *         *         * 95,000 to 100,000 (co-polar) 15 N/A 1.2 43 35 40 45 50 50 55 55 95,000 to 100,000 (cross-polar) 15 N/A 1.2 43 45 50 50 55 55 55 55 102,000 to 109,500 (co-polar) 15 N/A 1.2 43 35 40 45 50 50 55 55 102,000 to 109,500 (cross-polar) 15 N/A 1.2 43 45 50 50 55 55 55 55 111,800 to 114,250 (co-polar) 15 N/A 1.2 43 35 40 45 50 50 55 55 111,800 to 114,250 (cross-polar) 15 N/A 1.2 43 45 50 50 55 55 55 55 122,250 to 123,000 (co-polar) 15 N/A 1.2 43 35 40 45 50 50 55 55 122,250 to 123,000 (cross-polar) 15 N/A 1.2 43 45 50 50 55 55 55 55 130,000 to 134,000 (co-polar) 15 N/A 1.2 43 35 40 45 50 50 55 55 130,000 to 134,000 (cross-polar) 15 N/A 1.2 43 45 50 50 55 55 55 55 141,000 to 148,500 (co-polar) 15 N/A 1.2 43 35 40 45 50 50 55 55 141,000 to 148,500 (cross-polar) 15 N/A 1.2 43 45 50 50 55 55 55 55 151,500 to 158,500 (co-polar) 15 N/A 1.2 43 35 40 45 50 50 55 55 151,500 to 158,500 (cross-polar) 15 N/A 1.2 43 45 50 50 55 55 55 55 174,500 to 174,800 (co-polar) 15 N/A 1.2 43 35 40 45 50 50 55 55 174,500 to 174,800 (cross-polar) 15 N/A 1.2 43 45 50 50 55 55 55 55 231,500 to 232,000 (co-polar) 15 N/A 1.2 43 35 40 45 50 50 55 55 231,500 to 232,000 (cross-polar) 15 N/A 1.2 43 45 50 50 55 55 55 55 240,000 to 241,000 (co-polar) 15 N/A 1.2 43 35 40 45 50 50 55 55 240,000 to 241,000 (cross-polar) 15 N/A 1.2 43 45 50 50 55 55 55 55          *         *         *         *         *         *         * 15 Antenna gain less than 50 dBi (but greater than or equal to 43 dBi) is permitted only with a proportional reduction in maximum authorized EIRP in a ratio of 2 dB of power per 1 dB of gain, so that the maximum allowable EIRP (in dBW/MHz) for antennas of less than 50 dBi gain becomes 25−2(50-G), where G is the antenna gain in dBi. In addition, antennas in these bands must meet two additional standards for minimum radiation suppression: At angles between 1.2 and 5 degrees from the centerline of the main beam, co-polar discrimination must be G−28, where G is the antenna gain in dBi; and at angles of less than 5 degrees from the centerline of main beam, cross-polar discrimination must be at least 25 dB.     *         *         *         *         *         *         *
    30. Amend § 101.139 by revising paragraph (h) to read as follows:
    § 101.139 Authorization of transmitters.

    (h) 71-76 GHz; 81-86 GHz, 95-100 GHz, 102-109.5 GHz, 111.8-114.25 GHz, 122.25-123 GHz, 130-134 GHz, 141-148.5 GHz, 151.5-158.5 GHz, 174.5-174.8 GHz, 231.5-232 GHz, and 240-241 GHz. For equipment employing digital modulation techniques, the minimum bit rate requirement is 0.125 bit per second per Hz.

    31. Amend § 101.147 by adding ten entries to the list of frequency bands in paragraph (a) and revising the paragraph (z) subject heading and paragraph (z)(2) to read as follows:
    § 101.147 Frequency assignments.

    (a) * * *

    95,000,100,000 MHz

    102,000-109,500 MHz

    111,800-114,250 MHz

    122,250-123,000 MHz

    130,000-134,000 MHz

    141,000-148,500 MHz

    151,500-158,500 MHz

    174,500-174,800 MHz

    231,500-232,000 MHz

    240,000-241,000 MHz

    (z) 71-76 GHz, 81-86 GHz, 92-94 GHz, 94.1-95 GHz, 95-100 GHz, 102-109.5 GHz, 111.8-114.25 GHz, 122.25-123 GHz, 130-134 GHz, 141-148.5 GHz, 151.5-158.5 GHz, 174.5-174.8 GHz, 231.5-232 GHz, and 240-241 GHz.

    (2) Prior links shall be protected using the interference protection criteria set forth in § 101.105. For transmitters employing digital modulation techniques and operating in the 71-76 GHz, 81-86 GHz, 95-100 GHz, 102-109.5 GHz, 111.8-114.25 GHz, 122.25-123 GHz, 130-134 GHz, 141-148.5 GHz, 151.5-158.5 GHz, 174.5-174.8 GHz, 231.5-232 GHz, and 240-241 GHz bands, the licensee must construct a system that meets a minimum bit rate of 0.125 bits per second per Hertz of bandwidth. For transmitters that operate in the 92,000-94,000 MHz or 94,100-95,000 MHz bands, licensees must construct a system that meets a minimum bit rate of 1.0 bit per second per Hertz of bandwidth. If it is determined that a licensee has not met these loading requirements, then the database will be modified to limit coordination rights to the spectrum that is loaded and the licensee will lose protection rights on spectrum that has not been loaded.

    Subpart Q—Service and technical rules for the 70/80/90 GHz and above 95 GHz Bands 32. Amend subpart Q by revising the subpart heading to read as set forth above. 33. Revise § 101.1501 to read as follows:
    § 101.1501 Service areas.

    The 71-76 GHz, 81-86 GHz, 92-95 GHz, 95-100 GHz, 102-109.5 GHz, 111.8-114.25 GHz, 122.25-123 GHz, 130-134 GHz, 141-148.5 GHz, 151.5-158.5 GHz, 174.5-174.8 GHz, 231.5-232 GHz, and 240-241 GHz bands are licensed on the basis of non-exclusive nationwide licenses. There is no limit to the number of non-exclusive nationwide licenses that may be granted for these bands, and these licenses will serve as a prerequisite for registering individual links.

    34. Amend § 101.1505 by adding paragraph (c) to read as follows:
    § 101.1505 Segmentation plan.

    (c) An entity may request any portion of the 95-100 GHz, 102-109.5 GHz, 111.8-114.25 GHz, 122.25-123 GHz, 130-134 GHz, 141-148.5 GHz, 151.5-158.5 GHz, 174.5-174.8 GHz, 231.5-232 GHz, and 240-241 GHz bands.

    35. Revise § 101.1507 to read as follows:
    § 101.1507 Permissible operations.

    Licensees may use the 71-76 GHz, 81-86 GHz, 92-95 GHz, 95-100 GHz, 102-109.5 GHz, 111.8-114.25 GHz, 122.25-123 GHz, 130-134 GHz, 141-148.5 GHz, 151.5-158.5 GHz, 174.5-174.8 GHz, 231.5-232 GHz, and 240-241 GHz bands for any point-to-point, non-broadcast service. The segments may be unpaired or paired, but pairing will be permitted only in a standardized manner (e.g., 71-72.25 GHz may be paired only with 81-82.25 GHz, and so on). The segments may be aggregated without limit.

    36. Amend § 101.1523 by revising paragraph (a) to read as follows:
    § 101.1523 Sharing and coordination among non-Government licensees and between non-Government and Government services.

    (a) Registration of each link in the 71-76 GHz, 81-86 GHz, 92-95 GHz, 95-100 GHz, 102-109.5 GHz, 111.8-114.25 GHz, 122.25-123 GHz, 130-134 GHz, 141-148.5 GHz, 151.5-158.5 GHz, 174.5-174.8 GHz, 231.5-232 GHz, and 240-241 GHz bands will be in the Universal Licensing System until the Wireless Telecommunications Bureau announces by public notice the implementation of a third-party database.

    37. Revise § 101.1525 to read as follows:
    § 101.1525 RF safety.

    Licensees in the 71-76 GHz, 81-86 GHz, 92-95 GHz, 95-100 GHz, 102-109.5 GHz, 111.8-114.25 GHz, 122.25-123 GHz, 130-134 GHz, 141-148.5 GHz, 151.5-158.5 GHz, 174.5-174.8 GHz, 231.5-232 GHz, and 240-241 GHz bands are subject to the exposure requirements found in §§ 1.1307(b), 2.1091 and 2.1093 of this chapter, and will use the parameters found therein.

    38. Amend § 101.1527 by revising paragraph (a) and paragraph (b) introductory text to read as follows:
    § 101.1527 Canadian and Mexican coordination.

    (a) A licensee of bands 71-76 GHz, 81-86 GHz, 92-95 GHz, 95-100 GHz, 102-109.5 GHz, 111.8-114.25 GHz, 122.25-123 GHz, 130-134 GHz, 141-148.5 GHz, 151.5-158.5 GHz, 174.5-174.8 GHz, 231.5-232 GHz, and 240-241 GHz must comply with § 1.928(f) of this chapter, which pertains to coordination with Canada.

    (b) A licensee of bands 71-76 GHz, 81-86 GHz, 92-95 GHz, 95-100 GHz, 102-109.5 GHz, 111.8-114.25 GHz, 122.25-123 GHz, 130-134 GHz, 141-148.5 GHz, 151.5-158.5 GHz, 174.5-174.8 GHz, 231.5-232 GHz, and 240-241 GHz must coordinate with Mexico in the following situations:

    [FR Doc. 2018-06179 Filed 3-30-18; 8:45 am] BILLING CODE 6712-01-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) Under Section 73.2080(f)(2) AGENCY:

    Federal Communications Commission.

    ACTION:

    Propose rule; correction.

    SUMMARY:

    This document corrects the preamble to a proposed rule published in the Federal Register on March 21, 2018 regarding the EEO Broadcast Mid-Term Report. The comment periods in the DATES section of the proposed rule published on March 21, 2018, inaccurately reflected a 60-day comment period and 90-day reply comment period, instead of the 30-day comment, 45-day reply comment deadline stated in the proposed rule. Any comments made before this correction is published will be considered.

    DATES:

    Comments are due on or before April 30, 2018; reply comments are due on or before May 15, 2018.

    ADDRESSES:

    You may submit comments, identified by MB Docket No. 18-20, 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.

    Correction: In the Federal Register of March 21, 2018, in FR Doc. 2018-05726, on page 12313, in the third column, correct the DATES caption to read:

    DATES:

    Comments are due on or before April 30, 2018; reply comments are due on or before May 15, 2018.

    Dated: March 28, 2018. Federal Communications Commission. Katura Jackson, Federal Register Liaison Officer, Office of the Secretary.
    [FR Doc. 2018-06599 Filed 3-30-18; 8:45 am] BILLING CODE 6712-01-P
    DEPARTMENT OF TRANSPORTATION National Highway Traffic Safety Administration 49 CFR Part 578 [Docket No. NHTSA-2018-0017] RIN 2127-AL94 Civil Penalties AGENCY:

    National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    This document proposes a civil penalty rate applicable to automobile manufacturers that fail to meet applicable corporate average fuel economy (CAFE) standards and are unable to offset such a deficit with compliance credits. The agency is proposing this civil penalty rate based on a tentative determination regarding the applicability of the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, and in accordance with the Energy Policy and Conservation Act of 1975 (EPCA) and the Energy Independence and Security Act of 2007 (EISA).

    DATES:

    Comments: Comments must be received by May 2, 2018.

    ADDRESSES:

    You may submit comments to the docket number identified in the heading of this document by any of the following methods:

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

    Mail: Docket Management Facility, M-30, U.S. Department of Transportation, West Building, Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590.

    Hand Delivery or Courier: U.S. Department of Transportation, West Building, Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC, between 9 a.m. and 5 p.m. Eastern time, Monday through Friday, except Federal holidays.

    • Fax: 202-493-2251

    FOR FURTHER INFORMATION CONTACT:

    Kerry Kolodziej, Office of Chief Counsel, NHTSA, telephone (202) 366-2992, facsimile (202) 366-3820, 1200 New Jersey Ave, SE, Washington, DC 20590.

    SUPPLEMENTARY INFORMATION:

    Table of Contents A. Executive Summary B. Statutory and Regulatory Background C. Civil Penalties Inflationary Adjustment Act Improvements Act of 2015 D. NHTSA's Actions to Date Regarding CAFE Civil Penalties 1. Interim Final Rule 2. Final Rule 3. Reconsideration and Request for Comments E. Proposed Revisions to the CAFE Civil Penalty Rate 1. NHTSA is Proposing to Retain the $5.50 CAFE Civil Penalty Rate Because the 2015 Act is Inapplicable 2. The Agency Proposes a Finding That Increasing the CAFE Civil Penalty Rate Will Result in Negative Economic Impact 3. Increasing the CAFE Civil Penalty Rate to $14 Would Have a “Negative Economic Impact,” Even If The EPCA Factors Were Not Mandatory 4. The CAFE Civil Penalty Rate is Capped At $10 F. Rulemaking Analyses and Notices 1. Executive Order 12866, Executive Order 13563, and DOT Regulatory Policies and Procedures 2. Regulatory Flexibility Act 3. Executive Order 13132 (Federalism) 4. Unfunded Mandates Reform Act of 1995 5. National Environmental Policy Act 6. Executive Order 12778 (Civil Justice Reform) 7. Paperwork Reduction Act 8. Privacy Act 9. Executive Order 13771 A. Executive Summary

    NHTSA has almost forty years of experience in implementing the corporate average fuel economy (CAFE) program and its civil penalty component. This includes oversight and administration of the program's operation, how the automobile manufacturers respond to CAFE standards and increases, and the role of civil penalties in achieving the CAFE program's objectives. NHTSA has carefully considered these objectives in reconsidering the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Inflation Adjustment Act or 2015 Act) and its application to the CAFE civil penalty statute NHTSA administers.

    As a result of this review, NHTSA is proposing to retain the current civil penalty rate in 49 U.S.C. 32912(b) of $5.50 per tenth of a mile per gallon for automobile manufacturers that do not meet applicable CAFE standards and are unable to offset such a deficit with compliance credits. NHTSA's proposal is based on its tentative determination that the CAFE civil penalty rate is not a “civil monetary penalty,” as defined by the 2015 Act, that must be adjusted for inflation. NHTSA's previous Federal Register notices on its inflation adjustments under the 2015 Act did not consider whether the CAFE civil penalty rate fit the definition of a “civil monetary penalty” subject to adjustment under the 2015 Act, instead proceeding—without analysis—as if the 2015 Act applied to the CAFE civil penalty rate. After taking the opportunity to fully analyze the issue, NHTSA tentatively concludes that the CAFE civil penalty rate is not covered by the 2015 Act and seeks comment on four ways that the provisions of the 2015 Act could be best approached.

    First, civil penalties assessed for CAFE violations under Section 32912(b) are not a “penalty, fine, or other sanction that” is either “a maximum amount” or “a specific monetary amount.” Rather, the civil penalties under consideration here are part of a complicated market-based enforcement mechanism. Any potential civil penalties for failing to satisfy fuel economy requirements, unlike other civil penalties, are not determined until the conclusion of a complex formula, credit-earning arrangement, and credit transfer and trading program. In fact, the ultimate penalty assessed is based on the noncompliant manufacturer's decision, not NHTSA's, on whether and how to acquire and apply any credits that may be available to the manufacturer, and on the decisions of other manufacturers to earn and sell credits to a potentially liable manufacturer. In other words, what the noncompliant manufacturer pays is as much a function of market forces as it is the CAFE penalty rate.

    Moreover, NHTSA tentatively concludes that Congress did not intend for the 2015 Act to apply to this specialized civil penalty rate, which has longstanding, strict procedures previously enacted by Congress that limit NHTSA's ability to increase the rate. Congress specifically contemplated that increases to the CAFE civil penalty rate for manufacturer non-compliance with CAFE standards may be appropriate and necessary and included a mechanism in the statute for such increases. Critically, this mechanism requires the Secretary of Transportation to determine specifically that any such increase will not lead to certain specific negative economic effects. In addition, Congress explicitly limited any such increase to $10 per tenth of a mile per gallon.1 These restrictions have been in place since the statute was amended in 1978. Though Congress later amended the CAFE civil penalty provision in 2007, Congress did not amend either the mechanism for increases or the upper limit of an increased civil penalty under the statute. NHTSA seeks comment on this analysis.

    1 NHTSA tentatively concludes the 2015 Act also does not apply to the $10 cap.

    Second, in the alternative, NHTSA is proposing to keep the civil penalty rate the same in order to comply with EPCA, which must be read harmoniously with the 2015 Act. The 2015 Act confers discretion to the head of each agency to adjust the amount of a civil monetary penalty by less than the amount otherwise required for the initial adjustment, with the concurrence with the Director of the Office of Management and Budget, upon determining that doing so would have a “negative economic impact” In EPCA, Congress previously identified specific factors that NHTSA is required to consider before making a determination about the “impact on the economy” as a prerequisite to increasing the applicable civil penalty rate. NHTSA believes that these statutory criteria are appropriate for determining whether an increase in the CAFE civil penalty rate would have a “negative economic impact” for purposes of the 2015 Act. Under EPCA, NHTSA faces a heavy burden to demonstrate that increasing the civil penalty rate “will not have a substantial deleterious impact on the economy of the United States, a State, or a region of a State.” Specifically, in order to establish that the increase would not have that “substantial deleterious impact,” NHTSA would need to affirmatively determine that it is likely that the increase would not cause a significant increase in unemployment in a State or a region of a State; adversely affect competition; or cause a significant increase in automobile imports. In light of those statutory factors—and the absence of evidence to the contrary—NHTSA tentatively concludes it is likely that increasing the CAFE civil penalty rate would have a negative economic impact and thus is proposing not to adjust the rate under the 2015 Act. NHTSA is soliciting comments on this proposal, including whether the inflation adjustment would have a “negative economic impact,” and if so, how much less than the amount otherwise required should the penalty level be adjusted.

    Third, even if EPCA's statutory factors for increasing civil penalties are not applied, NHTSA has tentatively determined that the $14 penalty will lead to a negative economic impact that merits leaving the CAFE civil penalty rate at $5.50. Based on available information, including information provided by commenters, the effect of applying the 2015 Act to the CAFE civil penalty could potentially drastically increase manufacturers' costs of compliance beyond those contemplated when NHTSA established the current CAFE standards in 2012. NHTSA is soliciting comments on this tentative conclusion, including the level at which the CAFE civil penalty rate should be set.

    Fourth, even if the CAFE civil penalty rate is a “civil monetary penalty” under the 2015 Act and regardless of whether increasing it would have a “negative economic impact,” the increase is capped by statute at $10 by EPCA. NHTSA seeks comment on this alternative, including whether the $10 cap is itself a “civil monetary penalty” that is required to be adjusted under the 2015 Act.

    NHTSA is also proposing an inflationary adjustment to the general penalty for other violations of EPCA, as amended.

    B. Statutory and Regulatory Background

    NHTSA sets 2 and enforces 3 corporate average fuel economy (CAFE) standards for the United States light-duty vehicle fleet, and in doing so, assesses civil penalties against vehicle manufacturers that fall short of their compliance obligations and are unable to make up the shortfall with credits.4 The civil penalty amount for CAFE non-compliance was originally set by statute in 1975, and since 1997, has included a rate of $5.50 per each tenth of a mile per gallon (0.1) that a manufacturer's fleet average CAFE level falls short of its compliance obligation. This shortfall amount is then multiplied by the number of vehicles in that manufacturer's fleet.5 The basic equation for calculating a manufacturer's civil penalty amount before accounting for credits, is as follows:

    2 49 U.S.C. 32902.

    3 49 U.S.C. 32911, 32912.

    4 Credits may be either earned (for over-compliance by a given manufacturer's fleet, in a given model year), transferred (from one fleet to another), or purchased (in which case, another manufacturer earned the credits by over-complying and chose to sell that surplus). 49 U.S.C. 32903.

    5 A manufacturer may have up to three fleets of vehicles, for CAFE compliance purposes, in any given model year—a domestic passenger car fleet, an imported passenger car fleet, and a light truck fleet. Each fleet belonging to each manufacturer has its own compliance obligation, with the potential for either over-compliance or under-compliance. There is no overarching CAFE requirement for a manufacturer's total production.

    (penalty rate, in $ per 0.1 mpg per vehicle) × (amount of shortfall, in tenths of an mpg) × (# of vehicles in manufacturer's non-compliant fleet).

    Without even accounting for costs of generating or purchasing credits, automakers have paid more than $890 million in CAFE civil penalties, up to and including model year (MY) 2014 vehicles.6 Starting with the model year 2011, provisions in the CAFE program provided for credit transfers among a manufacturer's various fleets. Starting with that model year, the law also provided for trading between vehicle manufacturers, which has allowed vehicle manufacturers the opportunity to acquire credits from competitors rather than paying civil penalties for non-compliance. Manufacturers are required to notify NHTSA of the volumes of credits traded or sold, but the agency does not receive any information regarding total cost paid or cost per credit. NHTSA believes it is likely that credit purchases involve significant expenditures and that an increase in the penalty rate would correlate with an increase in such expenditures. The agency currently anticipates many manufacturers will face the possibility of paying larger CAFE penalties or incurring increased costs to acquire credits over the next several years than at present.7

    6 Fine reporting for MY15 and newer vehicles was not reported at the time of this proposal. The highest CAFE penalty paid to date for a shortfall in a single fleet was $30,257,920, paid by DaimlerChrysler for its imported passenger car fleet in MY 2006. Since MY 2012, only Jaguar Land Rover and Volvo have paid civil penalties. See https://one.nhtsa.gov/cafe_pic/CAFE_PIC_Fines_LIVE.html.

    7 NHTSA's Projected Fuel Economy Performance Report7 indicates that many manufacturers are falling behind the standards for model year 2016 and increasingly so for model year 2017.

    NHTSA has long had authority under the Energy Policy and Conservation Act (EPCA) of 1975, Public Law 94-163, 508, 89 Stat. 912 (1975), to raise the amount of the penalty for CAFE shortfalls if it can make certain findings,8 as well as the authority to compromise and remit such penalties under certain circumstances.9 If NHTSA were to raise the penalty rate for CAFE shortfalls, the higher amount would apply to any manufacturer that owed them; the authority to compromise and remit penalties, however, is extremely limited and on a case-by-case basis. To date, NHTSA has never utilized its ability to compromise or remit a CAFE civil penalty.

    8 49 U.S.C. 32912.

    9 49 U.S.C. 32913.

    Recognizing the economic harm that CAFE civil penalties could have on the automobile industry and the economy as a whole, Congress capped any increase in the original statutory penalty rate at $10 per tenth of a mile per gallon. Further—and significantly—it provided that NHTSA may only raise CAFE penalties under EPCA if it concludes through rulemaking that the increase in the penalty rate both (1) will result in, or substantially further, substantial energy conservation for automobiles in model years in which the increased penalty may be imposed, and (2) will not have a substantial deleterious impact on the economy of the United States, a State, or a region of the State. A finding of “no substantial deleterious impact” may only be made if NHTSA determines that it is likely that the increase in the penalty (A) will not cause a significant increase in unemployment in a State or a region of a State, (B) adversely affect competition, or (C) cause a significant increase in automobile imports. Nowhere does EPCA define “substantial” or “significant” in the context of this provision.

    If NHTSA seeks to compromise or remit penalties for a given manufacturer, a rulemaking is not necessary, but the amount of a penalty may be compromised or remitted only to the extent (1) necessary to prevent a manufacturer's insolvency or bankruptcy, (2) the manufacturer shows that the violation was caused by an act of God, a strike, or a fire, or (3) the Federal Trade Commission certifies that a reduction in the penalty is necessary to prevent a substantial lessening of competition. NHTSA has never previously attempted to undertake this process.

    C. Civil Penalties Inflation Adjustment Act Improvements Act of 2015

    On November 2, 2015, the Federal Civil Penalties Inflation Adjustment Act Improvements Act (Inflation Adjustment Act or 2015 Act), Public Law 114-74, Section 701, was signed into law. The 2015 Act required federal agencies to make an initial “catch-up” adjustment to the “civil monetary penalties,” as defined, they administer through an interim final rule and then to make subsequent annual adjustments for inflation. The amount of increase for any “catch-up” adjustment to a civil monetary penalty pursuant to the 2015 Act was limited to 150 percent of the then-current penalty. Agencies were required to issue an interim final rule, without providing the opportunity for public comment ordinarily required under the Administrative Procedure Act, for the initial “catch-up” adjustment by July 1, 2016.

    The method of calculating inflationary adjustments in the 2015 Act differs substantially from the methods used in past inflationary adjustment rulemakings conducted pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990 (the 1990 Inflation Adjustment Act), Public Law 101-410. Civil penalty adjustments under the 1990 Inflation Adjustment Act were conducted under rules that sometimes required significant rounding of figures.

    The 2015 Act altered these rounding rules. Now, penalties are simply rounded to the nearest $1. Furthermore, the 2015 Act “resets” the inflation calculations by excluding prior inflationary adjustments under the 1990 Inflation Adjustment Act. To do this, the 2015 Act requires agencies to identify, for each civil monetary penalty, the year and corresponding amount(s) for which the maximum penalty level or range of minimum and maximum penalties was established (i.e., originally enacted by Congress) or last adjusted other than pursuant to the 1990 Inflation Adjustment Act.

    The Director of the Office of Management and Budget (OMB) provided guidance to agencies in a February 24, 2016 memorandum.10 For those penalties an agency determined to be “civil monetary penalties,” the memorandum provided guidance on how to calculate the initial adjustment required by the 2015 Act. The initial catch up adjustment is based on the change between the Consumer Price Index for all Urban Consumers (CPI-U) for the month of October in the year the penalty amount was established or last adjusted by Congress and the October 2015 CPI-U. The February 24, 2016 memorandum contains a table with a multiplier for the change in CPI-U from the year the penalty was established or last adjusted to 2015. To arrive at the adjusted penalty, the agency must multiply the penalty amount when it was established or last adjusted by Congress, excluding adjustments under the 1990 Inflation Adjustment Act, by the multiplier for the increase in CPI-U from the year the penalty was established or adjusted as provided in the February 24, 2016 memorandum. The 2015 Act limits the initial inflationary increase to 150 percent of the current penalty. To determine whether the increase in the adjusted penalty is less than 150 percent, the agency must multiply the current penalty by 250 percent. The adjusted penalty is the lesser of either the adjusted penalty based on the multiplier for CPI-U in Table A of the February 24, 2016 memorandum or an amount equal to 250% of the current penalty.

    10 Memorandum from the Director of OMB to Heads of Executive Departments and Agencies, Implementation of the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Feb. 24, 2016), available online at https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/memoranda/2016/m-16-06.pdf (last accessed December 14, 2017).

    Additionally, the 2015 Act gives agencies discretion to adjust the amount of a civil monetary penalty by less than otherwise required if the agency determines that increasing the civil monetary penalty by the otherwise required amount will have either a negative economic impact or if the social costs of the increased civil monetary penalty will outweigh the benefits.11 In either instance, the agency must publish a notice, take and consider comments on this finding, and receive concurrence on this determination from the Director of OMB prior to finalizing a lower civil penalty amount.

    11 Public Law 114-74, Sec. 701(c).

    D. NHTSA's Actions to Date Regarding CAFE Civil Penalties 1. Interim Final Rule

    On July 5, 2016, NHTSA published an interim final rule, adopting inflation adjustments for civil penalties under its administration, following the procedure and the formula in the 2015 Act. NHTSA did not analyze at that time whether the 2015 Act applied to all of its civil penalties. One of the adjustments NHTSA made at the time was raising the civil penalty rate for CAFE non-compliance from $5.50 to $14.12 NHTSA also indicated in that notice that the maximum penalty rate that the Secretary is permitted to establish for such violations would increase from $10 to $25, although this was not codified in the regulatory text.13 NHTSA also raised the maximum civil penalty for other violations of EPCA, as amended, to $40,000.14

    12 81 FR 43524 (July 5, 2016). This interim final rule also updated the maximum civil penalty amounts for violations of all statutes and regulations administered by NHTSA, and was not limited solely to penalties administered for CAFE violations.

    13 For the reasons described in Section E.1, NHTSA is proposing to leave the maximum penalty rate that the Secretary is permitted to establish for such violations at $10.

    14 81 FR 43524 (July 5, 2016).

    In response to the changes to the CAFE penalty provisions issued in the interim final rule, the Alliance of Automobile Manufacturers (Alliance) and the Association of Global Automakers (Global) jointly petitioned NHTSA for reconsideration (the Industry Petition).15 The Industry Petition raised concerns with the significant impact, which they estimated to be at least $1 billion annually, that the increased penalty rate would have on CAFE compliance costs. Specifically, the Industry Petition raised: The issue of retroactivity (applying the penalty increase associated with model years that have already been completed or for which a company's compliance plan had already been “set”); which “base year” (i.e., the year the penalty was established or last adjusted) NHTSA should use for calculating the adjusted penalty rate; and whether an increase in the penalty rate to $14 would cause a “negative economic impact.”

    15 Jaguar Land Rover North America, LLC also filed a petition for reconsideration in response to the July 5, 2016 interim final rule raising the same concerns as those raised in the Industry Petition. Both petitions, along with a supplement to the Industry Petition, can be found in Docket ID NHTSA-2016-0075 at www.regulations.gov.

    2. Final Rule

    In response to the Industry Petition, NHTSA issued a final rule on December 28, 2016.16 In that rule, NHTSA agreed that raising the penalty rate for model years already fully complete would be inappropriate, given how courts generally disfavor the retroactive application of statutes. NHTSA also agreed that raising the rate for model years for which product changes were infeasible due to lack of lead time, did not seem consistent with Congress' intent that the CAFE program be responsive to consumer demand. NHTSA therefore stated that it would not apply the inflation-adjusted penalty rate of $14 until model year 2019, as the agency believed that would be the first year in which product changes could be made in response to the higher penalty rate.

    16 81 FR 95489 (December 28, 2016).

    3. Reconsideration and Request for Comments

    Before NHTSA's December 2016 final rule became effective, in January 2017, NHTSA took action to delay the effective date of the December 2016 CAFE civil penalties rule.17 As part of that action, and in light of CAFE compliance data submitted by manufacturers to NHTSA showing that many automakers would begin to fall behind in meeting their applicable CAFE standards beginning in model years 2016 and 2017,18 the agency requested public comment on the civil penalties—the first opportunity the public had to do so.19 The comment period closed on October 10, 2017. NHTSA received thirteen comments from various interested parties.

    17 82 FR 8694 (January 30, 2017); 82 FR 15302 (March 28, 2017); 82 FR 29009 (June 27, 2017); 82 FR 32139 (July 12, 2017). The portions of the July 5, 2016 interim final rule not dealing with CAFE remain in effect and are expected to be finalized as part of NHTSA's 2018 inflationary adjustments.

    18 “MYs 2016 and 2017 Projected Fuel Economy Performance Report,” February 14, 2017, available at https://one.nhtsa.gov/cafe_pic/AdditionalInfo.htm

    19 82 FR 32140 (July 12, 2017).

    Commenters included industry stakeholders and citizens. The array of commenters also included representatives from environmental groups, academia, and state governments such as attorneys general and environmental quality divisions. Industry stakeholders included comments from trade organizations and vehicle manufacturers.20

    20 Comments on this notice of proposed rulemaking can be found at: https://www.regulations.gov/docket?D=NHTSA-2017-0059.

    Generally, commenters from environmental organizations, attorneys general of 10 states, and academia expressed support for upholding the December 2016 final rule. In addition, those supporting the $14 civil penalty generally asserted reconsidering the 2016 final rule was outside of NHTSA's authority. None of the comments received from commenters specifically addressed whether the CAFE civil penalty rate was a “civil monetary penalty” as defined by the 2015 Act.

    Vehicle manufacturers, either directly or via their respective representing organizations, also expressed support for the reconsideration of the 2016 final rule. These commenters provided an analysis of how increased CAFE civil penalties could potentially impact their efforts to develop and sell vehicles in the marketplace when faced with anticipated increases in CAFE stringencies. These commenters expressed support for using 2007 as the base year for calculating inflation adjusted increases in CAFE civil penalty amounts.

    Additionally, some commenters suggested civil penalty amounts of 47 dollars per 0.1 mpg and $8.47 per 0.1 mpg, the latter a 54% increase over the $5.50 per 0.1 mpg value.

    The California Air Resources Board (CARB) commented that NHTSA's considerations when adjusting a civil penalty rate under EPCA do not matter for purposes of making an adjustment under the 2015 Act. CARB also stated that in past joint documents, NHTSA did not indicate that the $5.50 civil penalty rate would have a negative economic impact.

    The Alliance and Global suggested that NHTSA's considerations when adjusting a civil penalty rate under EPCA are informative for purposes of making a determination of negative economic impact under the 2015 Act.

    The December 28, 2016 final rule is not yet effective, and during reconsideration, the applicable civil penalty rate was $5.50 per tenth of a mile per gallon, which was the civil penalty rate prior to NHTSA's inflationary adjustment.21 NHTSA's delay of the final rule pending reconsideration did not affect the amount of any CAFE penalties that would have otherwise applied prior to Model Year 2019.

    21 82 FR 32140 (July 12, 2017). If the December 28, 2016 final rule had gone into effect, the penalty rate would have remained $5.50 until MY 2019.

    E. Proposed Revisions to the CAFE Civil Penalty Rate

    In this notice of proposed rulemaking (NPRM), NHTSA is announcing that it has tentatively determined, upon reconsideration, that the 2015 Act should not be applied to the CAFE civil penalty formula provision found in 49 U.S.C. 32912 and is proposing to retain the current civil penalty rate of $5.50 per .1 of a mile per gallon.22 The agency is proposing this based on a legal determination that the CAFE civil penalty rate is not a “civil monetary penalty” as contemplated by the 2015 Act and that therefore the 2015 Act should not be applied to the NHTSA CAFE civil penalty formula. Additionally, in the alternative, NHTSA is proposing to maintain the current civil penalty rate based on a tentative finding that—in light of the factors Congress requires NHTSA to analyze in determining whether an increase in the civil penalty rate will have “a substantial deleterious impact on the economy”—increasing the CAFE civil penalty rate would result in negative economic impact. Pursuant to OMB's guidance, NHTSA has consulted with OMB before proposing this reduced catch-up adjustment determination and submitted this notice of proposed rulemaking (NPRM) to the Office of Information and Regulatory Affairs (OIRA) for review. . In addition, if NHTSA determines that a reduced catch-up adjustment is appropriate in its final rule, it will seek OMB's concurrence before promulgating the rule, as required by the 2015 Act and confirmed by OMB's guidance. Finally, in this NPRM NHTSA has provided a series of tentative interpretations of the 2015 Act. In light of OMB's role in providing agencies guidance about the 2015 Act, NHTSA has requested OMB's views about the 2015 Act.

    22 NHTSA chose to reconsider its prior determination consistent with its statutory authority to administer the CAFE standards program and its inherent authority to do so efficiently and in the public interest. See, e.g., Tokyo Kikai Seisakusho, Ltd. v. United States, 529 F.3d 1352, 1360-61 (Fed. Cir. 2008) (“[A]dministrative agencies possess inherent authority to reconsider their decisions, subject to certain limitations, regardless of whether they possess explicit statutory authority to do so.”). OMB's February 2016 guidance confirms that each agency is “responsible for identifying the civil monetary penalties that fall under the statutes and regulations [it] enforce[s].” And, as repeatedly confirmed by courts, an agency may reconsider how it previously interpreted a statute, particularly when its updated interpretation “closely fits the design of the statute as a whole and its object and policy.” Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 417-18 (1993) (cleaned up); see also Nat'l Classification Comm. v. United States, 22 F.3d 1174, 1177 (D.C. Cir. 1994) (“[A]n agency may depart from its past interpretation [of a statute] so long as it provides a reasoned basis for the change.”) (citing Motor Vehicles Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42 (1983)); Torrington Extend-A-Care Employee Ass'n v. N.L.R.B., 17 F.3d 580, 589 (2d Cir. 1994) (similar). In the 2015 Act specifically, Congress did not prohibit or otherwise restrict agencies from reconsidering whether an initial catch-up adjustment is required or, if so, the magnitude of such an adjustment. Moreover, NHTSA's regulations provide broadly that “[t]he Administrator may initiate any further rulemaking proceedings that he finds necessary or desirable.” 49 CFR 553.25.

    NHTSA is also proposing to finalize the 2017 and 2018 inflationary adjustments for the maximum penalty for general CAFE violations in 49 U.S.C. 32912(a).

    1. NHTSA Is Proposing To Retain the $5.50 CAFE Civil Penalty Rate Because the 2015 Act Is Inapplicable

    Upon reconsideration, NHTSA has tentatively determined that the 2015 Act is not applicable to the CAFE civil penalty formula. The penalty in 49 U.S.C. 32912(b) for a manufacturer that violates fuel economy standards is not a “civil monetary penalty” subject to inflationary adjustment under the 2015 Act. This reflects a change in NHTSA's position on this issue from when NHTSA previously adjusted the CAFE civil penalty rate from $5 to $5.50.23 Given that the current penalty figure has been in effect since it was set twenty years ago, NHTSA proposes to apply its new position on a prospective basis only from the effective date of the final rule of this rulemaking. As a result of this change, NHTSA is proposing to retain the $5.50 multiplier in the CAFE civil penalty formula. NHTSA requests comment on this issue.

    23 NHTSA may consider a separate rulemaking to consider whether the CAFE civil penalty rate should be $5.

    The 2015 Act requires agencies to adjust “civil monetary penalties” for inflation.24 A “`civil monetary penalty' means any penalty, fine, or other sanction” that meets three requirements.25 First, the “penalty, fine, or other sanction” must be “for a specific monetary amount as provided by Federal law” or have “a maximum amount provided for by Federal law.” 26 Second, the “penalty, fine, or other sanction” must be “assessed or enforced by an agency pursuant to Federal law.” 27 Third, the “penalty, fine, or other sanction” must be “assessed or enforced pursuant to an administrative proceeding or a civil action in the Federal courts.” 28

    24 EPCA's use of the terminology “civil penalty” in 49 U.S.C. 32912(b) is not dispositive. The 2015 Act does not apply to all civil penalties, but rather “civil monetary penalties,” a defined term.

    25 28 U.S.C. 2461 note, Federal Civil Penalties Inflation Adjustment § 3(2).

    26Id.

    27Id.

    28Id.

    The 2015 Act required the Office of Management and Budget (OMB) to “issue guidance to agencies on implementing the inflation adjustments” under the Act.29 OMB issued guidance on February 24, 2016 that stated: “Agencies are responsible for identifying the civil monetary penalties that fall under the statutes and regulations they enforce” and for determining the “applicability of the inflation adjustment requirement to an individual penalty . . . .” 30 In none of NHTSA's July 2016 interim final rule, its December final rule, its July 2017 request for comments, nor its earlier adjustment from $5 to $5.50 did NHTSA specifically address whether the penalty for manufacturer violations of fuel economy standards in 49 U.S.C. 32912(b) is a “civil monetary penalty” subject to inflationary adjustment under the 2015 Act, or more generally, whether the 2015 Act should be made applicable to the penalty in Section 32912(b). Instead, it applied the 2015 Act without specific analysis of these issues.

    29Id. § 7(a).

    30 OMB Guidance at 2. OMB's guidance included the definition of “civil monetary penalty” applicable to the 2015 Act and explained: “Agencies with questions on the applicability of the inflation adjustment requirement to an individual penalty, should first consult with the Office of General Counsel of the agency for the applicable statute, and then seek clarifying guidance from OMB if necessary.”

    Upon evaluation, NHTSA has tentatively concluded the penalty for manufacturer violations of fuel economy standards in 49 U.S.C. 32912(b) is not a “civil monetary penalty” subject to adjustment under the 2015 Act. Upon similar evaluation, NHTSA also has tentatively concluded the $10 limit for such violations in 49 U.S.C. 32912(c)(1)(B) is not a “civil monetary penalty” subject to adjustment under the 2015 Act either. To be a “civil monetary penalty,” a penalty must meet all three criteria in the statutory definition.31 The penalty for manufacturer violations of fuel economy standards, which includes a rate of $5.50 per .1 mile in its formula, does not meet the first set of criteria in the definition. It is not a “penalty, fine, or other sanction” that is either “a specific monetary amount” or “a maximum amount.” Instead, the statute outlines a process that NHTSA uses to determine a proposed penalty and that manufacturers use to assess their specific penalty. In particular, the $5.50 per .1 mile is merely a rate that goes into a complex, statutory formula used to calculate a variable penalty. Other factors, such as the manufacturer's credit earning arrangement and its participation in the credit trading program, are also integral parts of the multifaceted formula used to calculate a manufacturer's penalty for violations of the fuel economy standards in 49 U.S.C. 32912(b). Moreover, the decisions of other manufacturers to generate or not generate and sell or not sell credits will also influence the amount that a potentially liable manufacturer pays. NHTSA does not believe this complex formula and credit trading program generates the kind of simple civil penalty that lends itself to rote application of the 2015 Act.

    31 The three criteria in the definition are joined by the conjunctive “and.”

    Unlike other civil penalties under NHTSA's jurisdiction, the penalty for manufacturer violations of fuel economy standards is not for “a maximum amount.” One example of a penalty that is for “a maximum amount” is the “general penalty” in EPCA for violations of 49 U.S.C. 32911(a). That “general penalty” is “a civil penalty of not more than $10,000 for each violation.” 32 This sets “a maximum amount” of $10,000 per violation. In other words, EPCA set “a maximum amount” of $10,000 per violation of requirements such as the requirement for manufacturers to submit pre-model year and mid-model year reports to NHTSA on whether they will comply with the average fuel economy standards.33 Accordingly, this civil penalty level was properly adjusted to $40,000 in NHTSA's interim final rule and is further adjusted here for 2017 and 2018.34 Violations of the Safety Act are also generally subject to “a maximum amount” of $21,000 per violation and $105 million for a related series of violations.35 The agency determines the appropriate amount of such penalties, up to the statutory maximum. On the other hand, the penalty for manufacturer violations of fuel economy standards in 49 U.S.C. 32912(b) does not provide “a maximum amount” of a penalty and instead contains only a complex process for determining a penalty. Setting aside any credits available to the manufacturer, the greater shortfall there is in a manufacturer's corporate average fuel economy, the greater the potential exists for the eventual application of a civil penalty for that shortfall.

    32 49 U.S.C. 32912(a). Since the penalty in 49 U.S.C. 32912(a) is for a maximum amount, it is subject to inflationary adjustment under the 2015 Act. NHTSA's inflationary adjustment of that civil penalty in the July 2016 IFR to a maximum penalty of $40,000 was therefore appropriate. The penalty in 49 U.S.C. 32912(a) is subject to additional inflationary adjustment for 2017 and 2018. Applying the multiplier for 2017 of 1.01636, as specified in OMB's December 16, 2016 guidance, results in an adjusted maximum penalty of $40,654. Applying the multiplier for 2018 of 1.02041, as specified in OMB's December 15, 2017, results in an adjusted maximum penalty of $41,484. NHTSA is proposing to finalize that inflationary adjustment.

    33See id.; 49 U.S.C. 32907(a).

    34 81 FR 43524, 43526 (July 5, 2016).

    35 49 U.S.C. 30165(a)(1). These civil penalty amounts were established by Section 24110 of the Fixing America's Surface Transportation Act (FAST Act), Public Law 114-94, after the 2015 Act was enacted, and thus were not adjusted in the interim final rule.

    The penalty for manufacturer violations of fuel economy standards also does not meet the definition of a “civil monetary penalty” because the fuel economy standards statute does not provide a “specific monetary amount” for manufacturer violations of fuel economy standards. In contrast to other provisions of the statute that provide for a specific amount on a per violation basis, often in the tens of thousands of dollars, section 32912(b) provides no specific amount. It only provides a $5.50 rate, which is one input in a market-based enforcement mechanism involving the calculation established in 49 U.S.C. 32912(b), the ultimate result of which—the penalty owed—is determined by how a manufacturer decides to use any available credits it has, or can acquire, to make up for the initial shortfall identified by NHTSA which in turn is based on the market price for credits which is dependent on the actions of other manufacturers.

    For a manufacturer that does not meet an applicable fuel economy standard, NHTSA sends what is known as a “shortfall letter” to the manufacturer. NHTSA can only do so after it knows the average fuel economy “calculated under section 32904(a)(1)(A) or (B) of this title for automobiles to which the standard applies manufactured by the manufacturer during the model year.” 36 The fuel economy calculation is conducted by the Environmental Protection Agency (EPA). Following the end of a model year, manufacturers submit final model year reports to EPA. EPA reviews and verifies the information and values manufacturers provide before providing the reports to NHTSA, generally more than six months after the end of a model year.

    36 49 U.S.C. 32912(b)(1).

    Once NHTSA receives the average fuel economy calculation from EPA, NHTSA must then determine whether the manufacturer's average fuel economy fails to meet the applicable average fuel economy standard.37 If so, the manufacturer has a shortfall. NHTSA then prepares a preliminary calculation of the manufacturer's potential civil penalty, which, as described above, varies depending on the relationship between the manufacturer's average fuel economy and the average fuel economy standards. NHTSA sends the manufacturer a shortfall letter with the preliminary calculation, which requires the manufacturer to respond by either submitting a plan on how it intends to make up the shortfall or by paying a penalty.

    37 49 U.S.C. 32912(b)(1).

    NHTSA's preliminary calculation is determined by multiplying three numbers: (1) $5.50, (2) each tenth of a mile per gallon by which the average fuel economy falls short of the applicable average fuel economy standard, and (3) the number of automobiles manufactured by the manufacturer during the model year.38 That calculation does not yield a final civil penalty amount because the statute requires that calculation to include a reduction “by the credits available to the manufacturer under section 32903 of this title for the model year.” 39

    38 49 U.S.C. 32912(b)(2).

    39 49 U.S.C. 32912(b)(3).

    However, applying the reduction for the number of available credits is not a matter of simple mathematics because manufacturers have control over both the amount of credits available to them and the use of their credits. If a manufacturer's performance for a given fleet does not meet the applicable standard, then the manufacturer must elect how to satisfy its shortfall.

    Whether and to what extent the penalty calculation is reduced “by the credits available to the manufacturer under section 32903 of this title for the model year” (i.e., how to deal with a non-compliance) is ultimately determined by the manufacturer. Only after this step in the process outlined in section 32912 occurs is the penalty calculation complete. Each manufacturer controls the allocation of its own credits, if credits are available.40 A manufacturer that earned credits in a compliance category before MY 2008 may apply those credits to that same compliance category for the three model years prior to, and three model years after, the year in which the credits were earned.41 A manufacturer that earned credits in a compliance category during and after MY 2008 may apply those credits to the same compliance category for three model years prior to, and five model years after, the year in which the credits were earned.42 Manufacturers instruct NHTSA on how they wish to allocate their credits, or account for shortfalls.43

    40See 49 CFR 536.5(c), (d)(2), (6).

    41Id. 536.6(a).

    42Id. 536.6(b).

    43See 49 CFR 536.5(d)(2), (6).

    Only once NHTSA hears back from the manufacturer on how it wishes to satisfy its shortfall does NHTSA know the specific civil penalty that the manufacturer owes for falling short of the applicable average fuel economy standard. In other words, the manufacturer's decision regarding use of credits is one of the several inputs in the complex formula set forth in the fuel economy standards statute, which ultimately produces the civil penalty for a manufacturer's violation of fuel economy standards. In sum, the statute describes a process to determine a penalty amount, but does not itself provide for a penalty, fine or sanction that is “for a specific amount.” Instead,, due to additional flexibilities of credit transfers and trades, a manufacturer determines the amount of the civil penalty that is actually owed.44 Considering this framework, the formula established under 49 U.S.C. 32912(b) and the variable amounts that result from application of the formula, are not a “specific monetary amount” of a penalty for manufacturer violations of fuel economy standards subject to adjustment pursuant to the 2015 Act.

    44 Public Law 110-140, Title I, 104(a), 121 Stat. 1501 (2007).

    NHTSA must conduct a preliminary calculation for each of the manufacturer's fleets. CAFE standards are fleet-wide standards that apply to the vehicles a manufacturer produced for sale in each of three compliance categories: passenger cars manufactured domestically, imported passenger cars, and light trucks.45 Within specified limits, EISA permitted manufacturers to transfer credits across fleets. For example, credits earned for a manufacturer's domestic passenger fleet may be transferred to its domestic light-truck fleet. Likewise, EISA permitted manufacturers to sell (i.e., trade) their credits to other manufacturers. The ability to trade credits with another manufacturer, authorized for the first time by EISA in 2007, introduced a new level of complexity that further differentiated civil penalties for violations of fuel economy requirements from other types of civil penalties. This added wrinkle further supports NHTSA's current understanding that the statutory CAFE civil penalty process is not included within the scope of the 2015 Act.

    45Id. 32902-04.

    Since manufacturers control the use of their available credits, NHTSA has no way of determining on its own the amount of a penalty that a manufacturer must pay, or even if a manufacturer must pay any penalty at all.46 The options are plentiful.47 A manufacturer can choose to use no credits and pay a penalty. A manufacturer can choose to use credits from the same compliance category and pay no penalty. A manufacturer can choose to use some credits from the same compliance category and pay a smaller penalty. A manufacturer can choose to transfer credits from another compliance category and pay no penalty. A manufacturer can choose to transfer some credits from another compliance category and pay a smaller penalty. A manufacturer can choose to purchase credits from another manufacturer and pay no penalty. A manufacturer can choose to purchase some credits from another manufacturer and pay a smaller penalty. A manufacturer can combine credits from the same compliance category and/or transfer credits from another compliance category and/or purchase credits from another manufacturer and pay no penalty or a smaller penalty.

    46 NHTSA is able to request supplemental reports and audit a manufacturer's compliance plan, see, e.g., 49 CFR 537.8, but ultimately, it is the manufacturer's decision on how to use the credits available to it.

    47See 49 U.S.C. 32903.

    Those are just the options for credits already earned. A manufacturer can also elect not to pay a penalty or pay a smaller penalty by using a “carryback” plan, in which the manufacturer applies credits it expects to earn in future model years.48

    48See 49 CFR 536.5(d).

    There are additional considerations that strongly supports NHTSA's conclusion that the 2015 Act should not be applied to the CAFE civil penalty. Congress already adopted a specific scheme for increasing the civil penalty in 49 U.S.C. 32912(b) that requires a far more intensive and restrictive process than the summary approach in the 2015 Act. First, EPCA placed an absolute limit on such an increase to “not more than $10 for each .1 of a mile a gallon.” 49 Moreover, Congress set a high bar for adopting an increase. Specifically:

    49 49 U.S.C. 32912(c).

    The Secretary of Transportation shall prescribe by regulation a higher amount for each .1 of a mile a gallon to be used in calculating a civil penalty under subsection (b) of this section, if the Secretary decides that the increase in the penalty—(i) will result in, or substantially further, substantial energy conservation for automobiles in model years in which the increased penalty may be imposed; and (ii) will not have a substantial deleterious impact on the economy of the United States, a State, or a region of a State.50

    50 49 U.S.C. 32912(c)(1)(A).

    Further, the Secretary must decide that an increase will not have a substantial deleterious impact “only when the Secretary decides that it is likely that the increase in the penalty will not—(i) cause a significant increase in unemployment in a State or a region of a State; (ii) adversely affect competition; or (iii) cause a significant increase in automobile imports.” 51 These factors, which appear to demonstrate Congress' concern that the CAFE civil penalties program could damage the economy, are far more specific and tailored to the CAFE program than any provisions in the 2015 Act. Although it is not specifically identified in the statute, the legislative history indicates that the “impact” of concern relates to “the automobile industry.” 52 In its report on EPCA's original fuel economy provisions in 1975, the House Commerce Committee recognized:

    51Id. 32912(c)(1)(C).

    52 “Energy Initiatives of the 95th Congress,” S. Rep. No. 96-10, at 175-76 (1979) (“Representative Dingell (D-Mich.), concerned that increasing the penalties could lead to layoffs in the automobile industry, insisted that raising the penalties be contingent upon findings by the Secretary of Transportation that increasing the penalties would achieve energy savings and would not be harmful to the economy.”).

    The automobile industry has a central role in our national economy and that any regulatory program must be carefully drafted so as to require of the industry what is attainable without either imposing impossible burdens on it or unduly limiting consumer choice as to capacity and performance of motor vehicles.53

    53 H.R. Rep. No. 94-340, at 87 (1975). See also 121 Cong. Rec. 18675 (June 12, 1975) (statement of Rep. Sharp) (“[W]e recognize that we have serious unemployment in the American auto industry and we want to preserve this important segment of the economy.”).

    Notably, Congress was aware that inflation would effectively reduce the real value of the civil penalty rate over time—the CBO Director and NHTSA Administrator recognized that the civil penalty structure under 1975 EPCA “actually become less stringent over time . . . as inflation erodes [the penalties'] effect”—yet chose to require this strict procedure to increase the rate without allowing for inflationary adjustments to the multiplier in the formula. In contrast, Congress expressly purposes of the 2015 Act (and its predecessor) “to establish a mechanism that shall . . . maintain the deterrent effect of civil monetary penalties . . . .” The omission of any inflation adjustment procedure makes sense in light of Congress' requirement for NHTSA to continually increase fuel economy standards to maximum feasible levels.54 Rather than increase the penalty each year, Congress directed NHTSA to determine whether fuel economy standards should be increased, because the goal of the CAFE standards is to increase fuel economy not punish manufacturers, as with other penalties subject to the 2015 Act. Requiring mandatory penalty inflation adjustments and continuous fuel standard increases would multiply the amount assessed against manufacturers in a way that does not occur with other types of penalties.

    54 49 U.S.C. 32902(a).

    Congress also recognized the need for lead time in increasing the civil penalty for violations of fuel economy standards by specifying that an increase “is effective for the model year beginning at least 18 months after the regulation stating the higher amount becomes final.” 55

    55Id. 32912(c)(1)(D).

    Congress additionally recognized the need for extensive input from the public and other parts of the Government before any such increase. It required that:

    The Secretary shall publish in the Federal Register a proposed regulation under this subsection and a statement of the basis for the regulation and provide each manufacturer of automobiles a copy of the proposed regulation and the statement. The Secretary shall provide a period of at least 45 days for written public comments on the proposed regulation. The Secretary shall submit a copy of the proposed regulation to the Federal Trade Commission and request the Commission to comment on the proposed regulation within that period. After that period, the Secretary shall give interested persons and the Commission an opportunity at a public hearing to present oral information, views, and arguments and to direct questions about disputed issues of material fact to—(A) other interested persons making oral presentations; (B) employees and contractors of the Government that made written comments or an oral presentation or participated in the development or consideration of the proposed regulation; and (C) experts and consultants that provided information to a person that the person includes, or refers to, in an oral presentation.56

    56Id. 32912(c)(2).

    These extensive, statutorily-mandated procedures specifically applicable to increases in the penalty rate in 49 U.S.C. 32912(b) are in stark contrast to the procedures applicable to the 2015 Act. For the initial catch-up adjustment, the 2015 Act specified that agencies should use an interim final rule.57 For subsequent annual adjustments, the 2015 Act specified that agencies “shall make the adjustment notwithstanding section 553 of title 5, United States Code,” which contain the Administrative Procedure Act's requirements for rulemaking.58

    57 28 U.S.C. 2461 note, Federal Civil Penalties Inflation Adjustment § 4(b)(1)(A).

    58Id. § 4(b)(2).

    Finally, before Congress passed the 2015 Act, the CBO provided an assessment of the revenue that inflation adjustments pursuant to the 2015 Act would provide the Federal government. CBO determined that all inflation adjustments pursuant to the 2015 Act (across every Federal agency) would provide in total $1.3 billion of revenue across ten years.59 Commenters indicate that adjusting the civil penalty rate to $14 could cost up to $1 billion annually in penalty payments.60 Across ten years, the penalty payments under this provision of the statute alone could dwarf CBO's contemporaneous estimate of the 2015 Act's effect on revenues from all civil monetary penalties across all statutes. The drastic difference between CBO's estimate of revenue from all inflation adjustments across ten years and the potential revenue from this adjustment alone further suggests Congress had not considered the civil penalty rate subject to the 2015 Act's inflation adjustment. This is bolstered by the rounding rule adopted by Congress. The 2015 Act states, “[a]ny increase determined under this subsection shall be rounded to the nearest multiple of $1.” 61 This rounding rule suggests the Act was not intended to apply to the small dollar value CAFE civil penalty rate, since it would not serve a de minimis rounding function. As a practical matter, if the rounding rule applied to a small dollar penalty rate, it would prevent any annual inflationary increases (absent extraordinary inflation).

    59See “Estimate of the Budgetary Effects of H.R. 1314, the Bipartisan Budget Act of 2015, as reported by the House Committee on Rules on October 27, 2015,” at 4, available at https://www.cbo.gov/sites/default/files/114th-congress-2015-2016/costestimate/hr1314.pdf. Title VII of the Bipartisan Budget Act of 2015 includes three sections and the revenue estimate was for title VII in its entirety. Section 701 is the 2015 Act. The other two sections are the rescission of money deposited or available in two funds which CBO recognized would decrease direct government spending. Therefore, the 2015 Act is likely the only portion of title VII to provide revenue, and the CBO's revenue estimate for title VII can be understood as a revenue estimate for the 2015 Act.

    60See, e.g., Comment ID NHTSA-2017-0059-0019, available at https://www.regulations.gov/.

    61 28 U.S.C. 2461 note, Federal Civil Penalties Inflation Adjustment § 5(a).

    NHTSA believes that applying the 2015 Act to the penalty in 49 U.S.C. 32912(b) would evade the statutory safeguards and limitations directly applicable to that penalty, in contrast to Congress's original awareness of penalty rate adjustments, and could result in the imposition of a potentially massive increase in civil penalties, in contrast to contemporaneous, pre-enactment evidence about the effect of the 2015 Act.

    NHTSA has previously sought comment on related issues, but NHTSA believes it is important to provide the public with an opportunity to provide additional comments in light of NHTSA's analysis. Accordingly, NHTSA requests comments on this analysis. For these reasons, NHTSA tentatively concludes that it is not appropriate to apply the 2015 Act and is proposing to retain the $5.50 rate in the CAFE civil penalty.

    2. The Agency Tentatively Finds That Increasing the CAFE Civil Penalty Rate Will Result in Negative Economic Impact

    NHTSA is proposing to retain the CAFE civil penalty rate of $5.50 per tenth of a mile per gallon, even if one were to assume that the penalties are subject to the 2015 Act, because NHTSA tentatively concludes that, in light of the statutory requirements in EPCA for raising the penalty rate, applying the increase would lead to a “negative economic impact” under the 2015 Act.

    The 2015 Act states, “[a]ny increase determined under this subsection shall be rounded to the nearest multiple of $1.” 62 NHTSA requests comment on whether, and if so, how, this rounding rule should apply if NHTSA ultimately concludes that adjusting the $5.50 CAFE civil penalty rate upwards would have a “negative economic impact.” Specifically, does the 2015 Act rule require a $5.50 civil penalty rate, if finalized, to be rounded to $6? Commenters should consider the potential application of the rounding rule to the initial catch-up adjustment, as well as the 2017 and 2018 adjustments and future annual adjustments. Commenters should also consider the relationship, if any, between the rounding rule and the criteria required to be met to raise the civil penalty under EPCA.

    62 28 U.S.C. 2461 note, Federal Civil Penalties Inflation Adjustment § 5(a).

    a. Negative Economic Impact i. “Negative Economic Impact” Is Not Defined

    Under the 2015 Inflation Adjustment Act, NHTSA, under authority delegated by the Secretary, may adjust the amount of a civil monetary penalty by the less than the amount otherwise required for the “catch-up adjustment” upon determining in a final rule, after notice-and comment, that increasing the civil monetary penalty by the otherwise required amount will have a “negative economic impact,” or the social costs of increasing the civil monetary penalty by the otherwise required amount outweigh the benefits.63 In either case, the Director of the Office of Management and Budget must concur with the agency's determination.

    63 28 U.S.C. 2461 note, Federal Civil Penalties Inflation Adjustment § 4(c)(1).

    To determine whether increasing the CAFE civil penalty rate by the amount calculated under the inflation adjustment formula would have a “negative economic impact,” NHTSA must first establish the meaning of “negative economic impact.” The statute does not define “negative economic impact.” OMB issued a memorandum providing guidance to the heads of executive departments and agencies on how to implement the Inflation Adjustment Act, but the guidance does not define “negative economic impact” either.64

    64 Memorandum from the Director of OMB to Heads of Executive Departments and Agencies, Implementation of the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Feb. 24, 2016), available at https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/memoranda/2016/m-16-06.pdf.

    ii. How To Interpret “Negative Economic Impact”

    In interpreting “negative economic impact,” NHTSA cannot just consider the Inflation Adjustment Act in isolation: statutory interpretation is not conducted in a vacuum.65 “It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” 66

    65Davis v. Michigan Dep't of Treasury, 489 U.S. 803, 809 (1989).

    66Id. (citing United States v. Morton, 467 U.S. 822, 828 (1984)).

    Accordingly, NHTSA must interpret Congress' Inflation Adjustment Act in light of the longstanding CAFE civil penalty structure previously enacted by Congress. Interpreting the Inflation Adjustment Act in context is particularly important in determining the appropriate adjustment to make to the CAFE civil penalty rate given the unique nature of the CAFE civil penalties program. For example, in contrast to other federal civil penalty programs, the CAFE statute requires a minimum of eighteen months' lead time in advance of a model year before a higher civil penalty amount can become effective.67 Congress mandated this interval because “manufacturers' product and compliance plans are difficult to alter significantly for years ahead of a given model year.” 68 Indeed, “NHTSA believes that this approach facilitates continued fuel economy improvements over the longer term by accounting for the fact that manufacturers will seek to make improvements when and where they are most cost-effective.” 69 For similar reasons, when DOT amends a fuel economy standard to make it more stringent, that new standard must be promulgated “at least 18 months before the beginning of the model year to which the amendment applies.” 70

    67 49 U.S.C. 32912(c)(1)(D).

    68 81 FR 95491 (December 28, 2016).

    69Id.

    70 49 U.S.C. 32902(a)(2).

    CAFE civil penalties are also atypical in that they follow a prescribed formula that can only be compromised or remitted by NHTSA in exceptionally limited circumstances.71 In practice, therefore, any increase in the CAFE civil penalty rate would apply to all non-compliant manufacturers, regardless of the circumstances, and in turn, would likely increase the price of credits.72 Contrast this constrained structure with NHTSA's general civil penalty authority, which allows the Secretary to determine or compromise the amount of a civil penalty and delineates multiple factors for the Secretary to consider in making such a determination, including the nature, circumstances, extent, and gravity of the violation.73

    71 49 U.S.C. 32913 (authorizing the Secretary to “compromise or remit the amount of civil penalty imposed” under CAFE “only to the extent” (1) necessary to prevent a manufacturer's insolvency or bankruptcy; (2) the manufacturer shows that the violation was caused by an act of God, a strike, or a fire; or (3) the Federal Trade Commission certifies that a reduction is necessary to prevent a substantial lessening of competition). NHTSA has never attempted to utilize this provision to compromise or remit a CAFE civil penalty.

    72See H.R. Rep. No. 95-1751, at 112 (1978) (Conf. Rep.) (“[T]he higher penalty . . . will be the same for all manufacturers when adopted. . ..”).

    73 49 U.S.C. 30165(b)-(c).

    The principles underlying other traditional canons of statutory interpretation further support NHTSA's proposed approach. For example, statutes that relate to the same or to similar subjects are in pari materia. Such statutes should be construed together, even if they do not expressly reference each other or were passed at different times, unless a contrary intent is clearly expressed by Congress. Here, both the inflationary adjustment statute and the relevant provisions of the CAFE statute involve civil penalties and must be read in pari materia. 74 And when one of the statutes is generalized and passed later—like the Inflation Adjustment Act—it cannot be read to implicitly repeal an earlier, more specific statute—like EPCA's establishment of the CAFE civil penalties structure.75 This approach to statutory interpretation is consistent with NHTSA's past practice.76

    74See Wisconsin Cent. Ltd. v. United States, 194 F. Supp. 3d 728, 738 (N.D. Ill. 2016), aff'd, 856 F.3d 490 (7th Cir. 2017) (“`[C]onceptual similarity' . . . is precisely the point of the in pari materia canon: `statutes addressing the same subject matter generally should be read as if they were one law,' with the traditional tools of statutory interpretation applied accordingly. . . . [A]lthough FICA does not by completely define the RRTA's various contours, examining the former to elucidate related provisions of the latter is an acceptable mode of statutory interpretation given the close linkages between the statutes.”) (internal citation omitted) (emphasis in original); cf. Pound v. Airosol Co., 498 F.3d 1089, 1094 n.2 (10th Cir. 2007) (“The penalty provisions of the CAA and the Clean Water Act (CWA) are virtually identical; thus, CWA cases are instructive in analyzing issues arising from the CAA”); United States v. Dell'Aquilla, 150 F.3d 329, 338 n.9 (3d Cir. 1998) (“[T]he Clean Water Act and the Clean Air Act are in pari materia, and courts often rely upon interpretations of the Clean Water Act to assist with an analysis under the Clean Air Act.”) (citations omitted).

    75See Crawford Fitting Co. v. J. T. Gibbons, Inc., 482 U.S. 437, 445 (1987) (“Where there is no clear intention otherwise, a specific statute will not be controlled or nullified by a general one, regardless of the priority of enactment.”) (cleaned up); Radzanower v. Touche Ross & Co., 426 U.S. 148, 153 (1976) (“It is a basic principle of statutory construction that a statute dealing with a narrow, precise, and specific subject is not submerged by a later enacted statute covering a more generalized spectrum.”).

    76See, e.g., 80 FR 40137, 40171 (Aug. 12, 2015) (interpreting a term in EISA by looking to how the term is defined in the Motor Vehicle Safety Act, “[g]iven the absence of any apparent contrary intent on the part of Congress in EISA”).

    The principles underlying the rule of lenity also substantiate interpreting the Inflation Adjustment Act narrowly in light of EPCA. This canon instructs that statutes imposing penalties should be construed narrowly in favor of those against whom the penalties will be imposed. Although the rule of lenity is traditionally applied in criminal contexts,77 the principles underlying the rule are worth considering when there are severe punitive implications of a broad interpretation, as is the case here. Construing the statute strictly is particularly important here because the inflation adjustment essentially acts as a “one-way ratchet,” where all subsequent annual adjustments will be based off this “catch-up” adjustment with no ensuing opportunity to invoke the “negative economic impact” exception.78

    77 Some courts have applied the rule of lenity in civil and administrative contexts as well. See, e.g., United States v. Thompson/Ctr. Arms Co., 504 U.S. 505, 518 (1992); Rand v. C.I.R., 141 T.C. 376, 393 (2013), overturned on other grounds due to legislative action.

    78 This “one-way ratchet” constraint is also imposed by EPCA. H.R. Rep. No. 95-1751, at 113 (1978) (Conf. Rep.) (“No provision [in EPCA] is made for lowering the penalty.”).

    iii. Reading Section 32912 With the Inflationary Adjustment Act

    Under 49 U.S.C. 32912(b), a manufacturer that violates a fuel economy standard is potentially subject to a civil penalty rate for each tenth of a mile per gallon that the manufacturer misses the applicable average fuel economy standard for the number of automobiles manufactured by the manufacturer during the model year, unless the manufacturer is able and willing to apply credits or establish a plan to generate and apply credits in subsequent years, as discussed above. NHTSA has exceptionally limited discretion in whether to impose the penalty or the amount of the preliminary calculation of the penalty when it does indeed apply.

    The Secretary is required to increase the applicable civil penalty rate up to $10 per each tenth of a mile per gallon if she decides that the increase in the penalty:

    (i) will result in, or substantially further, substantial energy conservation for automobiles in model years in which the increased penalty may be imposed; and

    (ii) will not have a substantial deleterious impact on the economy of the United States, a State, or a region of a State.79

    79 49 U.S.C. 32912(c)(1)(A)-(B).

    The Secretary can only decide that the increase “will not have a substantial deleterious impact on the economy” if she decides that it is likely that the increase in the penalty will not:

    (i) Cause a significant increase in unemployment in a State or a region of a State;

    (ii) adversely affect competition; or

    (iii) cause a significant increase in automobile imports.80

    80 49 U.S.C. 32912(c)(1)(C).

    Thus, to increase the civil penalty rate for CAFE violations, the Secretary must affirmatively determine that doing so “will not have a substantial deleterious impact on the economy of the United States, a State, or a region of a State.” Critically, if she is unable to make such a determination or, put another way, if she determines that increasing the civil penalty may have “a substantial deleterious impact on the economy of the United States, a State, or a region of a State,” she is prohibited by statute from increasing the applicable civil penalty rate.81 Therefore, in determining whether adjusting the CAFE civil penalty rate for inflation will have a “negative economic impact,” it is appropriate to consider the potential negative economic impact the adjustment would have not just on the United States in general, but also, at a minimum, on whether such impact could occur in any particular State or region of a State.

    81 In addition to the substantive findings that must be made before the civil penalty rate can be increased, Section 32912 also imposes procedural requirements. For instance, the Secretary must hold a public hearing during which interested persons and the Federal Trade Commission be allowed to make presentations. 49 U.S.C. 32912(c)(2).

    NHTSA also believes it is appropriate to consider the impact raising the CAFE civil penalty rate would have on individual manufacturers who fall short of fuel economy standards, and those affected, such as dealers. Such a broad interpretation is consistent with how other statutory provisions permitting or requiring agencies to consider economic impacts have been interpreted. For example, under the Safety Act, a discretionary factor in determining the amount of a penalty is “the appropriateness of such penalty in relation to the size of the business of the person charged, including the potential for undue adverse economic impacts.” 82 NHTSA interpreted that factor in its regulation to include consideration of “financial factors such as liquidity, solvency, and profitability.” 83 Other federal statutes likewise contemplate consideration of negative economic impacts on individual actors in determining an appropriate civil penalty.84 NHTSA's proposal, which includes consideration of the “negative economic impact” the level would have on individual noncompliant actors, represents a uniform approach with how it determines the appropriate civil penalty level in these other, non-CAFE cases. Moreover, the Senate Conference report on the 1975 version of EPCA directed “the Secretary [to] weigh the benefits to the nation of a higher average fuel economy standard against the difficulties of individual automobile manufacturers.” 85

    82 49 U.S.C. 30165(c)(7) (emphasis added).

    83 49 CFR 578.8.

    84See 15 U.S.C. 2069(b), (c) (Consumer Product Safety Commission); 33 U.S.C. 1232(a)(1) (Coast Guard); 33 U.S.C. 1319(d), 1321(b)(8) (Environmental Protection Agency).

    85 S. Rep. No. 94-516, at 155 (1975) (Conf. Rep.).

    Note also that “negative economic impact,” as used in the Inflation Adjustment Act, need not mean “net negative economic impact.” Congress expressly utilized the “net” concept in the very next provision of the statute, authorizing a lesser increase to a civil penalty if the agency determines that “the social costs of increasing the civil monetary penalty by the otherwise required amount outweigh the benefits.” 86 The absence of comparable phrasing for the “negative economic impact” provision immediately prior implies either that term is ambiguous or that Congress intentionally omitted the word “net.” Either way, without any express indications that Congress meant “net negative economic impact,” NHTSA proposes that the provision should be interpreted without reference to any potential benefits of increasing the penalty.

    86 28 U.S.C. 2461 note, Federal Civil Penalties Inflation Adjustment § 4(c)(1)(B) (emphasis added).

    a. NHTSA has not Determined That an Increase in the CAFE Civil Penalty Rate Will Not Have a Substantial Deleterious Impact on the Economy

    To summarize: The 2015 Act allows an agency to set a lower penalty amount than would otherwise be required if it can show that raising the penalty in accordance with the 2015 Act will lead to a “negative economic impact,” which is not defined either in the 2015 Act or OMB's implementing guidance. However, the statute specifically related to penalties for violations of NHTSA's fuel economy standards has a provision allowing for an increase in the penalty rate only if the agency can determine that increasing the rate will not have a “substantial deleterious impact on the economy.” To read these two provisions together harmoniously, NHTSA interprets the statutes to mean that the agency must be able to affirmatively show that increasing the penalty as would be required by the 2015 Act will not have the adverse economic effects identified in the definition of “substantial deleterious impact.” Since the agency cannot make those affirmative findings, discussed further below, it is therefore prohibited from raising the penalty rate because doing so would have a “negative economic impact.”

    Since NHTSA does not have sufficient evidence to make the requisite finding under EPCA that an increase in the CAFE penalty rate will not have a substantial deleterious impact on the economy, NHTSA is proposing to retain the $5.50 penalty rate pursuant to the negative economic impact exception to inflationary adjustments. NHTSA invites comments on whether this is the appropriate penalty level, and if not, requests data or other evidence that would support the findings necessary under EPCA that would allow for such an increase.

    The comments should take into account that the factors are probabilistic and prospective, that is, to increase the penalty rate, the Secretary must determine that doing so likely would not have the statutorily-enumerated effects in the future.

    The comments should also reflect the considerable burdens that must be overcome to make the findings needed to increase the civil penalty under EPCA, in part reflected in the statute's repeated use of “substantial” and “significant.” Indeed, the burden is so great that NHTSA has been unable to make all of the determinations necessary since the provisions were added in 1978.

    The comments should also address the impact of increasingly stringent fuel economy standards established in existing statute and NHTSA regulation, and whether this increasing stringency has a relationship to a “negative economic impact” or “substantial deleterious impact determination.”

    b. NHTSA has not Determined That an Increase in the CAFE Civil Penalty Rate Will Not Cause a Significant Increase in Unemployment in a State or Region of a State

    NHTSA tentatively concludes that an increase in the CAFE penalty rate could plausibly cause a significant increase in unemployment in a State or a region of a State. For instance, vehicle price increases—resulting from increased penalty payments or compliance costs passed through to customers—could result in customers keeping their current vehicles longer or shifting purchases towards less expensive new vehicles or toward the used vehicle market. Either outcome could lead to fewer jobs with vehicle manufacturers. Losses may be concentrated in particular States and regions within those States where automobile manufacturing plants are located. Some manufacturers who have historically paid civil penalties in lieu of compliance have automobile assembly and parts manufacturing plants located in the Midwest and Southeastern U.S. These plants employing thousands of people could be most adversely impacted by a civil penalty increase resulting in employment losses. In response to substantial increases in potential penalties, some manufacturers could plausibly lose sales due to resulting higher prices, which may result in reduced employment at facilities currently producing vehicles and engines.

    Fewer new vehicle sales attributable to price increases resulting from increased penalty payments and/or compliance costs could also plausibly result in fewer jobs within new motor vehicle dealerships franchised to sell vehicles manufactured or distributed by manufacturers subject to penalties and/or increased compliance costs. A manufacturer's decision to change allocation of vehicles distributed to dealers to address increased penalties and/or compliance costs could also result in job losses within the franchised dealer network. For example, one might expect that increased CAFE penalties could lead to a decrease in the number of vehicles with powerful engines being produced or sold. Dealers in States or intra-State regions where these types of vehicles are more popular would be affected disproportionately.

    c. NHTSA Has Not Determined That an Increase in the CAFE Civil Penalty Rate Will Not Adversely Affect Competition

    Notably, unlike the other two factors, this factor does not require a finding of a “significant” effect. The absence of this modifier implies that even a modest adverse effect on competition would suffice to block a civil penalty increase. This phrasing similarly contrasts with the provision in the next section of the Code, describing the compromising or remitting the amount of a CAFE civil penalty. That provision requires the Federal Trade Commission to certify that a reduction in the penalty is “necessary to prevent a substantial lessening of competition.” 87

    87 49 U.S.C. 32913(a)(3).

    In establishing CAFE stringency requirements, NHTSA has consistently evaluated risks to competition, including the potential effects on individual automakers. For instance, in the 1985 rulemaking, NHTSA analyzed the potential effect of a 1.5 mpg fuel economy improvement on the domestic auto industry, stating:

    It is always possible that higher levels of fuel economy could be achieved by the domestic manufacturers if they were to restrict severely their product offerings. For example, sales of particular larger light truck models and larger displacement engines could be limited or eliminated entirely. As discussed by the October 1984 notice, Ford submitted an analysis of the potential effects of restricting product offerings in this manner. This analysis showed that to achieve a 1.5 mpg average fuel economy benefit through such restrictions, sales reductions of 100,000 to 180,000 units at Ford could occur, with resulting employment losses of 12,000 to 23,000 positions at Ford, its dealers and suppliers. The agency believes this analysis to be a reasonable projection of the impacts of restricting the availability of larger light trucks in the current market. Impacts of this magnitude go beyond the realm of “economic practicability” as contemplated in the Act. This is particularly true since it is likely that a standard set at a level resulting in impacts of this magnitude would result in little or no net fuel economy benefit. This is because consumers could meet their demand for larger light trucks by merely shifting their purchases to other manufacturers which continue to offer such trucks. The other manufacturers could increase sales of these vehicles without risking noncompliance with the standards. An additional possible negative economic consequence would be reduced competition in the market for larger light trucks. Given the small number of manufacturers producing larger light trucks, a decision by Ford (or GM or [Chrysler]) to significantly reduce its role in this market could have serious consequences for competition.88

    88 50 FR 40398, 40400-40401 (Oct. 3, 1985).

    NHTSA continues to believe that, in the context of CAFE rulemakings, an analysis of the effects of a regulation on competition should be undertaken in a broad manner, similar to the analysis traditionally used in establishing CAFE stringency requirements, and seeks comments on this approach.

    NHTSA tentatively concludes that it is reasonable to believe that an increase in the CAFE penalty rate could distort the normal market competition that would be expected in a free market by favoring one group of manufacturers over another. This could adversely impact the affected manufacturers through higher prices for their products (without corresponding benefits to consumers), restricted product offerings, and reduced profitability. An increased CAFE penalty benefits fleets of already-compliant fuel efficient vehicles over fleets of less fuel-efficient vehicles. A manufacturer who is already generating or possesses over-compliance credits will find itself with much more valuable credits to sell and may use this additional capital to invest more heavily in research and development, marketing, add other features to its vehicles which make them more desirable to consumers, or reduce the price of its vehicles. Through model year 2015, manufacturers with positive credit balances had credits in varying amounts up to nearly 396 million credits.89 A hypothetical manufacturer with 10 million credits could see the potential value of its credits increase from $55 million to $140 million, while a hypothetical manufacturer with 100 million credits could see the potential value even more dramatically increase from $550 million to $1.4 billion. Meanwhile, a manufacturer who is not compliant and facing increased difficulties in meeting future stringency requirements may be forced to purchase credits at an increased price, invest more heavily in fuel economy improvements, discontinue less fuel-efficient models or configurations, increase vehicle prices, or some combination of these options—instead of investing in other areas to address consumer demands that would have been satisfied if the manufacturer was able to pay a lower penalty. While this result may be beneficial for purposes of fuel savings, it would further diminish the competitiveness of those manufacturers who are least able to comply with CAFE standards.

    89See “CAFE Public Information Center,” available at https://one.nhtsa.gov/cafe_pic/CAFE_PIC_Credit_LIVE.html.

    In addition to the impact on competition an increase in penalties might have on market participants, it could also have an impact on the market itself by limiting consumer choice involving vehicles and vehicle configurations that would otherwise be produced with penalties at their current values. For instance, faced with the prospect of having to pay larger penalties in the future, a manufacturer could decide that it makes financial sense to shift resources from its planned investments in capital towards payment of possible future penalties. If the possibility of paying penalties looms too large, a manufacturer could go out of business, reducing competition even further.

    d. NHTSA has not Determined That an Increase in the CAFE Civil Penalty Rate will not Cause a Significant Increase in Automobile Imports

    Final model year fuel economy performance reports published by NHTSA indicate import passenger car fleets are performing better than domestic passenger car fleets. The model year 2015 fleet performance report 90 , the latest available, indicates the performance of the imported passenger car fleet has a one-tenth of one mpg advantage. While this slight advantage could be viewed as negligible, performance has varied significantly in recent years—the most significant being model year 2010 where the import fleet outpaced the domestic fleet by more than two mpg.

    90 Available at https://one.nhtsa.gov/cafe_pic/CAFE_PIC_fleet_LIVE.html (last accessed December 15, 2017)

    In light of this historical variation, it is unclear whether increasing the civil penalty fine amount would have a significant effect on either the domestic or import passenger cars fleets, and NHTSA seeks comment on potential positive or negative impacts civil penalties may have on the domestic and import passenger car fleets, along with any potential positive or negative impacts to the light truck fleet. Please provide supporting information for your position.

    iv. Analysis of Comments Received on “Negative Economic Impact” and EPCA Considerations

    NHTSA has reviewed the comments it received on the July 2017 notice regarding “negative economic impact,” and—from previous requests for comment—on the EPCA considerations. NHTSA did not identify anything persuasive in the submissions that would undermine NHTSA's proposed interpretation of “negative economic impact.”

    In its July 2017 request for comments, NHTSA specifically sought comments on:

    • Whether the EPCA considerations for “substantial deleterious impact” are relevant to a determination of “negative economic impact”?

    • And if so, whether those considerations must be accounted for in determining negative economic impact, or simply that they are informational, and what is the legal basis for that belief?

    Only two commenters submitted comments touching on these questions. But none of the comments addressed whether the EPCA criteria for “substantial deleterious impact on the economy” should guide NHTSA's consideration of whether the inflation adjustment would have a “negative economic impact,” and if so, how much less than the otherwise required amount should the penalty level be adjusted after analyzing data relevant to the EPCA factors.

    CARB observed that the 2016 joint Technical Assessment Report stated that manufacturers “who have consistently chosen to pay CAFE fines in the past may continue to do so,” even if the civil penalty rate changes. CARB concluded from that NHTSA saw no reason at the time to think its fines would have a negative economic impact. However, this conclusion does not necessarily follow, as the greatly increased civil penalty rate, in light of longstanding expectations about the steadiness of that rate, could significantly upset manufacturers' expectations about compliance and thus cause operational or other challenges given the lead time necessary to make significant fuel economy improvements in subsequent model years.

    The Alliance and Global jointly submitted comments that also relate to these issues. These associations contended that although the EPCA factors “do not override” the Inflation Adjustment Act and “are not binding” in the inflation adjustment, they provide “helpful support” and “useful guidance” in deciding whether there would be a “negative economic impact” and, if so, how much to adjust the civil penalty amount. In their view, the “stringent” factors required by EPCA demonstrate that the CAFE civil penalty amount should not be increased without evidence of “substantial net benefits” and evidence that there would be “no substantial harm to the economy.” 91

    91 The groups go on to claim that the evidence shows that adjusting the penalty to $14 “will cost society $3.5 billion and will not produce commensurate benefits.”

    NHTSA has previously sought comment on the EPCA civil penalty criteria in other rulemaking proceedings. In 2009, NHTSA sought comment on whether it should initiate a proceeding to consider raising the CAFE civil penalty under EPCA. Most of the comments on this issue focused on the energy conservation factor, rather than the impact on the economy. But no commenter argued that raising the penalty would have a positive or neutral impact on the economy.92

    92 74 FR 14195, 14427 (Mar. 30, 2009).

    In 2010, NHTSA specifically solicited comments on how raising or not raising the penalty amount under EPCA would impact the economy. Only Ferrari and Daimler commented on this issue. Both manufacturers argued that raising the penalty would have no impact on fuel savings and would simply hurt the manufacturers forced to pay it. Daimler stated further that manufacturers pay fines because they cannot increase energy savings any further. No commenter argued or provided any information supporting the opposing position that raising the penalty amount would have a positive or neutral impact on the economy. Ultimately, NHTSA “defer[red] consideration of this issue for purposes of this rulemaking.” 93

    93 75 FR 25323, 25666-67 (May 7, 2010).

    In 2012, NHTSA again solicited comments on how raising or not raising the penalty amount under EPCA would impact the economy. This time, “no comments specific to this issue were received,” so NHTSA declared it would “continue to attempt to evaluate this issue on its own.” 94

    94 77 FR 62623, 63131 (Oct. 15, 2012).

    The public has had multiple opportunities to comment on the EPCA civil penalty provisions and now the Inflation Adjustment Act. NHTSA has considered all the comments it received in generating this proposed rule.

    Based on the findings discussed above, NHTSA has tentatively made a determination that negative economic impact will result if the CAFE civil penalty rate is increased. For this reason, NHTSA is proposing to retain the existing CAFE civil penalty rate of $5.50 per .1 of a mile per gallon. NHTSA also seeks comment on whether a modest increase in the CAFE civil penalty rate, less than the amount that would otherwise be required if the 2015 Act applies, would “result in, or substantially further, substantial energy conservation for automobiles in model years in which the increased penalty may be imposed,” as expected by EPCA.

    3. Increasing the CAFE Civil Penalty Rate to $14 Would Have a “Negative Economic Impact,” Even If The EPCA Factors Were Not Mandatory

    Even if NHTSA was not required to apply the EPCA factors, NHTSA has tentatively determined that raising the CAFE civil penalty rate to $14 would have a “negative economic impact.” NHTSA believes that the economic consequences described above are a reasonable estimate of what would occur if the CAFE civil penalty rate was increased 150 percent, regardless of any effect from EPCA. That is, increasing the penalty rate to $14 would lead to significantly greater costs than the agency had anticipated when it set the CAFE standards because manufacturers who had planned to use penalties as one way to make up their shortfall would now need to pay increased penalty amounts, purchase additional credits at likely higher prices, or make modifications to their vehicles outside of their ordinary redesign cycles. NHTSA believes all of these options would increase manufacturers' compliance costs, many of which would be passed along to consumers. Considering the agency's past analyses of CAFE's impact on vehicle costs, NHTSA tentatively concludes that the estimate provided by industry showing annual costs of at least one billion dollars is a reasonable estimate of this impact. NHTSA requests comments, including any substantive analysis, on this issue. The agency further believes that an increase in costs of this significant magnitude exceeds the range of adjustments Congress intended to cover when it enacted the 2015 Act, as described above.

    If NHTSA determines that raising the CAFE civil penalty rate to $14 would have a “negative economic impact,” it is permitted to adjust the rate by less than the otherwise required amount. Without any statutory direction or OMB guidance on how much to adjust the rate, if at all, it falls to NHTSA to determine the appropriate adjustment—and NHTSA has wide discretion in making this determination.95

    95Nat'l Shooting Sports Found., Inc. v. Jones, 716 F.3d 200, 214-15 (D.C. Cir. 2013) (“An agency has `wide discretion' in making line-drawing decisions and `[t]he relevant question is whether the agency's numbers are within a zone of reasonableness, not whether its numbers are precisely right.' . . . An agency `is not required to identify the optimal threshold with pinpoint precision. It is only required to identify the standard and explain its relationship to the underlying regulatory concerns.'”) (quoting WorldCom, Inc. v. FCC, 238 F.3d 449, 461-62 (D.C. Cir. 2001)).

    In light of the regulatory concerns described above, and in consideration of the unique regulatory structure with non-discretionary penalties tied to standards that increase over time, NHTSA is proposing to keep the CAFE civil penalty rate at $5.50 because it tentatively concludes that retaining the $5.50 rate would avoid the “negative economic impact” caused by any adjustment upwards.

    Although NHTSA has previously sought comment on these issues, NHTSA believes it is important to provide the public with an opportunity to provide additional information in light of NHTSA's analysis. Therefore, NHTSA requests comment on whether increasing the CAFE civil penalty rate to $14 would have a “negative economic impact,” and if so, to what level the rate should be raised, if at all.

    4. The CAFE Civil Penalty Rate is Capped At $10

    Under 49 U.S.C. 32912(c)(1)(B), if the CAFE civil penalty rate is increased, the rate at which it is set “may not be more than $10 for each .1 of a mile a gallon.” This upper limit has been in effect since EPCA was amended in 1978 and was left in place when Congress amended the civil penalty provision in 2007.96

    96 In the interim final rule required by the 2015 Act, NHTSA announced that the adjusted maximum civil penalty would be increased from $10 to $25. 82 FR 32139 (July 12, 2017). However, this change was never formally codified in the Code of Federal Regulations nor adopted by Congress. Even if the adjustment is considered to have been adopted, however, NHTSA is now reconsidering that decision for the reasons explained above.

    The 2015 Act requires adjustments of “civil monetary penalties,” which must be penalties that are “assessed or enforced by an agency pursuant to Federal law.” 97 NHTSA believes that the $10 cap is not the maximum amount of a penalty that is “assessed or enforced.” Rather, it is a limit on the amount NHTSA can set for the CAFE civil penalty rate if the required determinations are made. NHTSA cannot assess or enforce the $10 cap against anyone. In contrast, other penalties in EPCA have a maximum amount that can be “assessed or enforced.” One example of such a penalty is the “general penalty” in EPCA for violations of 49 U.S.C. 32911(a). That “general penalty” is “a civil penalty of not more than $10,000 for each violation.” NHTSA has the authority, without any additional rulemakings, to subject the entity committing a violation to the maximum amount—$10,000—for that violation, or a lower amount, in its discretion. By contrast NHTSA has no discretion to enforce anything other than the result of the CAFE formula against a manufacturer, which includes the current $5.50 multiplier. The $10 figure is not part of that formula and could only become so after further rulemaking.

    97 28 U.S.C. 2461 note, Federal Civil Penalties Inflation Adjustment § 3(2)(B), (C).

    Accordingly, NHTSA is tentatively proposing in the alternative that any potential adjustment NHTSA makes to the CAFE civil penalty rate be capped at $10 and seeks comment on this proposal. Commenters should consider whether the $10 limit is itself a “civil monetary penalty” that must be adjusted under the 2015 Act, keeping in mind that the level was kept the same when the previous adjustment was made in 1997. Commenters should also consider the effect of the 2007 amendments in ratifying the $10 level and whether the market-based complexities established by those amendments bear on what Congress meant subsequently by “civil monetary penalty” in the 2015 Act.

    F. Rulemaking Analyses and Notices 1. Executive Order 12866, Executive Order 13563, and DOT Regulatory Policies and Procedures

    NHTSA has considered the impact of this rulemaking action under Executive Order 12866, Executive Order 13563, and the Department of Transportation's regulatory policies and procedures. This rulemaking document has been considered a “significant regulatory action” under Executive Order 12866. At this stage, NHTSA believes that this rulemaking could also be “economically significant,” but cannot definitively make that determination until the final rule stage, as it depends entirely on the civil penalty rate established in the final rule.

    2. Regulatory Flexibility Act

    Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), whenever an agency is required to publish a notice of proposed rulemaking or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small governmental jurisdictions). No regulatory flexibility analysis is required if the head of an agency certifies the proposal will not have a significant economic impact on a substantial number of small entities. SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that a proposal will not have a significant economic impact on a substantial number of small entities.

    NHTSA has considered the impacts of this notice of proposed rulemaking under the Regulatory Flexibility Act and certifies that this rule would not have a significant economic impact on a substantial number of small entities. The following provides the factual basis for this certification under 5 U.S.C. 605(b).

    The Small Business Administration's (SBA) regulations define a small business in part as a “business entity organized for profit, with a place of business located in the United States, and which operates primarily within the United States or which makes a significant contribution to the U.S. economy through payment of taxes or use of American products, materials or labor.” 13 CFR 121.105(a). SBA's size standards were previously organized according to Standard Industrial Classification (“SIC”) Codes. SIC Code 336211 “Motor Vehicle Body Manufacturing” applied a small business size standard of 1,000 employees or fewer. SBA now uses size standards based on the North American Industry Classification System (“NAICS”), Subsector 336—Transportation Equipment Manufacturing. This action is expected to affect manufacturers of motor vehicles. Specifically, this action affects manufacturers from NAICS codes 336111—Automobile Manufacturing, and 336112—Light Truck and Utility Vehicle Manufacturing, which both have a small business size standard threshold of 1,500 employees.

    Though civil penalties collected under 49 CFR 578.6(h)(1) and 49 CFR 578.6(h)(2) apply to some small manufacturers, low volume manufacturers can petition for an exemption from the Corporate Average Fuel Economy standards under 49 CFR part 525. This would lessen the impacts of this rulemaking on small business by allowing them to avoid liability for penalties under 49 CFR 578.6(h)(2). Small organizations and governmental jurisdictions will not be significantly affected as the price of motor vehicles and equipment ought not change as the result of this rule.

    3. Executive Order 13132 (Federalism)

    Executive Order 13132 requires NHTSA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, the agency may not issue a regulation with Federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, the agency consults with State and local governments, or the agency consults with State and local officials early in the process of developing the proposed regulation.

    This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132.

    The reason is that this rule will generally apply to motor vehicle manufacturers. Thus, the requirements of Section 6 of the Executive Order do not apply.

    4. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995, Public Law 104-4, requires agencies to prepare a written assessment of the cost, benefits and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually. Because this rule is not expected to include a Federal mandate, no Unfunded Mandates assessment will be prepared.

    5. National Environmental Policy Act

    The National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4347) requires Federal agencies to analyze the environmental impacts of proposed major Federal actions significantly affecting the quality of the human environment, as well as the impacts of alternatives to the proposed action. 42 U.S.C. 4332(2)(C). When a Federal agency prepares an environmental assessment, the Council on Environmental Quality (CEQ) NEPA implementing regulations (40 CFR parts 1500-1508) require it to “include brief discussions of the need for the proposal, of alternatives [. . .], of the environmental impacts of the proposed action and alternatives, and a listing of agencies and persons consulted.” 40 CFR 1508.9(b). This section serves as the agency's Draft Environmental Assessment (Draft EA). NHTSA invites public comments on the contents and tentative conclusions of this Draft EA.

    i. Purpose and Need

    This notice of proposed rulemaking sets forth the purpose of and need for this action. NHTSA is required to consider whether it is appropriate, pursuant to the Inflation Adjustment Act, to make an initial “catch-up” adjustment to the civil monetary penalties it administers for the CAFE program. Further, if the agency determines that the Inflation Adjustment Act applies, it must consider the appropriate approach to undertake pursuant to the legislation. The purpose of this notice of proposed rulemaking is to consider the applicability of the Inflation Adjustment Act and to propose adjustments pursuant to the Act, consistent with its requirements as well as the agency's responsibilities under EPCA (as amended by EISA).

    ii. Alternatives

    NHTSA has considered a range of alternatives for the proposed action, including maintaining the civil penalty amount at $5.50 per each tenth of a mile per gallon (the No Action Alternative) and increasing the civil penalty amount to $14.00 per each tenth of a mile per gallon (as previously proposed). This notice of proposed rulemaking also seeks public comment on whether it is required to increase the civil penalty amount to $6.00 per each tenth of a mile per gallon (rounding pursuant to the 2015 Act) or whether the civil penalty amount is capped at $10.00 per each tenth of a mile per gallon (pursuant to EPCA). In this notice of proposed rulemaking, the agency proposes maintaining the civil penalty amount at $5.50 as its preferred alternative, although it may select any value along this range of alternatives, including any civil penalty amount between $5.50 and $14.00. NHTSA is also proposing to increase the “general penalty” to a maximum penalty of $41,484,98 pursuant to the requirements of the Inflation Adjustment Act.

    98 NHTSA adjusted this penalty to a maximum of $40,000 in its July 2016 IFR. Applying 1.01636 multiplier for 2017 inflationary adjustments, as specified in OMB's December 16, 2016 guidance, results in an adjusted maximum penalty of $40,654. Applying the multiplier for 2018 of 1.02041, as specified in OMB's December 15, 2017, results in an adjusted maximum penalty of $41,484.

    iii. Environmental Impacts of the Proposed Action and Alternatives

    Under all of the alternatives under consideration, the agency would maintain or increase the civil penalty amount for a manufacturer's failure to meet its fleet's average fuel economy target (assuming the manufacturer does not have sufficient credits available to cover the shortfall). When deciding whether to add fuel-saving technology to its vehicles, a manufacturer might consider the cost to add the technology, the price and availability of credits, the potential reduction in its civil penalty liability, and the value to the vehicle purchaser of the change in fuel outlays over a specified “payback period.” A higher civil penalty amount could encourage manufacturers to improve the average fuel economy of their passenger car and light truck fleets if the benefits of installing fuel-saving technology (i.e., lower civil penalty liability and increased revenue from vehicle sales) outweigh the costs of installing the technology.

    However, there are many reasons why this might not occur to the degree anticipated. Apart from the civil penalty rate, as CAFE standards increase in stringency, manufacturers have needed to research and install increasingly less cost-effective technology that may not obtain levels of consumer acceptance necessary to offset the investment. A higher civil penalty amount combined with the value of the potential added fuel economy benefit of new, advanced technology to the vehicle purchaser may not be sufficient to outweigh the added technology costs (including both the financial outlays and the risk that consumers may not value the technology or accept its impact on the driving experience, therefore opting not to purchase those models). This may be especially true when gas prices are low. If the added cost in civil penalty payments is borne by the manufacturer, this may result in reduced investment in fuel saving technology or reduced consumer choice. If the added cost in civil penalty payments is passed on to the consumer, the consumer would see higher vehicle purchase costs without a corresponding fuel economy benefit or other benefits, resulting in fewer purchases of newer, more fuel-efficient vehicles. Based on the foregoing, NHTSA believes that each of the alternatives under consideration in this notice of proposed rulemaking could result, at most, only marginally better levels of compliance with the applicable fuel economy targets.

    An increase in a motor vehicle's fuel economy is associated with reductions in fuel consumption and greenhouse gas (GHG) emissions for an equivalent distance of travel. Increased global GHG emissions are associated with climate change, which includes increasing average global temperatures, rising sea levels, changing precipitation patterns, increasing intensity of severe weather events, and increasing impacts on water resources. These, in turn, could affect human health and safety, infrastructure, food and water supplies, and natural ecosystems. Fewer GHG emissions would reduce the likelihood of these impacts. Changes in motor vehicle fuel economy are also associated with impacts on criteria and hazardous air pollutant emissions, safety, life-cycle environmental impacts, and more.

    As part of recent rulemaking actions establishing CAFE standards, NHTSA evaluated the impacts of increasing fuel economy standards for passenger cars and light trucks on these and other environmental impact areas.99 The analyses assumed a civil monetary penalty of $5.50 per each tenth of a mile per gallon. Though particular values reported in its recent Environmental Impact Statements (EISs) may no longer be replicable due to updated assumptions and new information obtained since their publication, the agency believes that the environmental impact trends reported remain adequate and valid. The agency has considered the information and trends presented in those EISs in preparing this proposal. For example, the MY 2017-2025 CAFE EIS showed that the large stringency increases in the fuel economy standards as a result of that rulemaking would result in reductions of global mean surface temperature increases of no more than 0.016°C by 2100. Further, that EIS showed nationwide reductions in most criteria pollutant emissions in 2040 (usually in ranges of 10% or less) and small increases or reductions in most toxic pollutant emissions in 2040 (usually in ranges of 3% or less). NHTSA believes the impacts on fuel economy resulting from this action would be very small compared to the impacts on fuel economy resulting from the stringency increases that were reported in those EISs. Therefore, NHTSA anticipates that the environmental impacts resulting from the proposed action would range from no change (No Action Alternative) to negligible impacts consistent with, but to a much smaller degree than, the trends reported in those EISs (increase in the civil penalty).

    99See, e.g., NHTSA, Final Environmental Impact Statement, Corporate Average Fuel Economy Standards, Passenger Cars and Light Trucks, Model Years 2017-2025. Docket No. NHTSA-2011-0056. July 2012.

    NHTSA will prepare a new EIS for its forthcoming proposal for new CAFE standards.100 The agency's civil penalty rate is an input in the CAFE Model that will inform the development of that EIS and, ultimately, the agency's final decision for setting CAFE standards. The agency does not believe the civil penalty rate being proposed will limit its ability to set “maximum feasible” standards pursuant to 49 U.S.C. 32902(b)(2)(B), nor will it unreasonably constrain the potential environmental outcomes associated with future rulemakings. In addition, NHTSA will review the new EIS and the updated CAFE Model as it prepares its final EA for this action, which will ultimately inform the development of the final rule.

    100 NHTSA, Notice of Intent to Prepare an Environmental Impact Statement for Model Year 2022-2025 Corporate Average Fuel Economy Standards. 82 FR 34740 (Jul. 26, 2017).

    NHTSA is also proposing to increase the “general penalty” pursuant to the Inflation Adjustment Act. This increase is not anticipated to have impacts on the quality of the human environment. The “general penalty” is applicable to other violations, such as a manufacturer's failure to submit pre-model year and mid-model year reports to NHTSA on whether they will comply with the average fuel economy standards. These violations are not directly related to on-road fuel economy, and therefore the penalties are not anticipated to directly or indirectly affect fuel use or emissions.

    iv. Agencies and Persons Consulted

    NHTSA and DOT have consulted with OMB as described earlier in this proposal. NHTSA and DOT have not consulted with any other agencies in the development of this proposal.

    v. Conclusion

    NHTSA has reviewed the information presented in this Draft EA and concludes that the proposed action and alternatives would have no impact or a small positive impact on the quality of the human environment. The preferred alternative is anticipated to have no impact on the quality of the human environment, as it would result in no change, as compared to current law, to the civil penalty amount for failure to meet fuel economy targets. Further, the proposed change to the “general penalty” is not anticipated to affect on-road emissions. Any of the impacts anticipated to result from the alternatives under consideration are not expected to rise to a level of significance that necessitates the preparation of an Environmental Impact Statement. Based on the information in this Draft EA and assuming no additional information or changed circumstances, NHTSA expects to issue a Finding of No Significant Impact (FONSI). Such a finding will not be made before careful review of all public comments received. A Final EA and a FONSI, if appropriate, will be issued as part of the final rule.

    6. Executive Order 12778 (Civil Justice Reform)

    This rule does not have a retroactive or preemptive effect. Judicial review of a rule based on this proposal may be obtained pursuant to 5 U.S.C. 702.

    7. Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1980, NHTSA states that there are no requirements for information collection associated with this rulemaking action.

    8. Privacy Act

    Please note that anyone is able to search the electronic form of all comments received into any of DOT's dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (Volume 65, Number 70; Pages 19477-78), or you may visit http://dms.dot.gov.

    9. Executive Order 13771

    This proposed rule is expected to be a deregulatory action under Executive Order 13771, although NHTSA, at this point, has not been able to quantify potential cost savings.

    Proposed Regulatory Text List of Subjects in 49 CFR Part 578

    Imports, Motor vehicle safety, Motor vehicles, Rubber and rubber products, Tires, Penalties.

    In consideration of the foregoing, 49 CFR part 578 is proposed to be amended as set forth below.

    PART 578—CIVIL AND CRIMINAL PENALTIES 1. The authority citation for 49 CFR part 578 is revised to read as follows: Authority:

    Pub. L. 101-410, Pub. L. 104-134, Pub. L. 109-59, Pub. L. 114-74, Pub. L. 114-94, 49 U.S.C. 30165, 30170, 30505, 32308, 32309, 32507, 32709, 32710, 32902, 32912, and 33115; delegation of authority at 49 CFR 1.81, 1.95.

    2. Amend § 578.6 by revising paragraph (h) to read as follows:
    § 578.6 Civil penalties for violations of specified provisions of Title 49 of the United States Code.

    (h) Automobile fuel economy. (1) A person that violates 49 U.S.C. 32911(a) is liable to the United States Government for a civil penalty of not more than $41,484 for each violation. A separate violation occurs for each day the violation continues.

    (2) Except as provided in 49 U.S.C. 32912(c), a manufacturer that violates a standard prescribed for a model year under 49 U.S.C. 32902 is liable to the United States Government for a civil penalty of $5.50 multiplied by each .1 of a mile a gallon by which the applicable average fuel economy standard under that section exceeds the average fuel economy—

    (i) Calculated under 49 U.S.C. 32904(a)(1)(A) or (B) for automobiles to which the standard applies manufactured by the manufacturer during the model year;

    (ii) Multiplied by the number of those automobiles; and

    (iii) Reduced by the credits available to the manufacturer under 49 U.S.C. 32903 for the model year.

    Issued in Washington, DC, under authority delegated in 49 CFR 1.81, 1.95, and 501.5 Heidi R. King, Deputy Administrator.
    [FR Doc. 2018-06550 Filed 3-30-18; 8:45 am] BILLING CODE 4910-59-P
    DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS-R1-ES-2017-0050; FXES11130900000C6-189-FF09E42000] RIN 1018-BC10 Endangered and Threatened Wildlife and Plants; Reclassifying the Hawaiian Goose From Endangered to Threatened With a 4(d) Rule AGENCY:

    Fish and Wildlife Service, Interior.

    ACTION:

    Proposed rule.

    SUMMARY:

    Under the authority of the Endangered Species Act of 1973, as amended (Act), we, the U.S. Fish and Wildlife Service (Service), propose to reclassify the Hawaiian goose (nene) (Branta (=Nesochen) sandvicensis) from endangered to threatened, and we propose a rule under section 4(d) of the Act to enhance conservation of the species through range expansion and management flexibility. This proposal is based on a thorough review of the best available scientific data, which indicate that the species' status has improved such that it is not currently in danger of extinction throughout all or a significant portion of its range. We also propose to correct the Federal List of Endangered and Threatened Wildlife to reflect that Nesochen is not currently a scientifically accepted generic name for this species, and to acknowledge the Hawaiian name “nene” as an alternative common name. We seek information, data, and comments from the public on this proposal.

    DATES:

    We will accept comments received or postmarked on or before June 1, 2018. Please note that if you are using the Federal eRulemaking Portal (see ADDRESSES), the deadline for submitting an electronic comment is 11:59 p.m. Eastern Time on this date. We must receive requests for public hearings, in writing, at the address shown in the FOR FURTHER INFORMATION CONTACT section by May 17, 2018.

    ADDRESSES:

    You may submit comments by one of the following methods:

    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-R1-ES-2017-0050, which is the docket number for this rulemaking. Then, in the Search panel on the left side of the screen, under the Document Type heading, click on the Proposed Rules link to locate this document. You may submit a comment by clicking on “Comment Now!” Please ensure that you have found the correct rulemaking before submitting your comment.

    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public Comments Processing, Attn: FWS-R1-ES-2017-0050, U.S. Fish and Wildlife Service, MS: BPHC, 5275 Leesburg Pike, Falls Church, VA 22041-3808.

    We request that you send comments only by the methods described above. We will post all comments on http://www.regulations.gov. This generally means that we will post any personal information you provide us (see Information Requested, below, for more information).

    Document availability: The proposed rule is available on http://www.regulations.gov. In addition, the supporting file for this proposed rule will be available for public inspection, by appointment, during normal business hours, at the Pacific Islands Fish and Wildlife Office, 300 Ala Moana Boulevard, Room 3-122, Honolulu, HI 96850; telephone 808-792-9400.

    FOR FURTHER INFORMATION CONTACT:

    Mary Abrams, Field Supervisor, telephone: 808-792-9400. Direct all questions or requests for additional information to: U.S. Fish and Wildlife Service, Pacific Islands Fish and Wildlife Office, 300 Ala Moana Boulevard, Room 3-122, Honolulu, HI 96850. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Relay Service at 800-877-8339.

    SUPPLEMENTARY INFORMATION: Executive Summary

    Why we need to publish a rule. Under the Act, a species may warrant reclassification from endangered to threatened if it no longer meets the definition of endangered (in danger of extinction). The Hawaiian goose (nene) is listed as endangered, and we are proposing to reclassify nene as threatened because we have determined it is no longer in danger of extinction. Reclassifications can only be made by issuing a rulemaking. Furthermore, changes to the take prohibitions in section 9 of the Act, such as those we are proposing for this species under a section 4(d) rule, can only be made by issuing a rulemaking.

    The basis for our action. Under the Act, we may determine that a species is an endangered or threatened species based on any one or a combination of five factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. We have determined that the nene is no longer at risk of extinction and, therefore, does not meet the definition of endangered, but is still affected by the following current and ongoing threats to the extent that the species meets the definition of a threatened species under the Act:

    • Habitat destruction and modification due to urbanization, agricultural activities, nonnative ungulates, and nonnative vegetation;

    • Predation by nonnative mammals such as mongooses, cats, dogs, rats, and pigs;

    • Diseases such as toxoplasmosis, avian pox, avian botulism, avian malaria, omphalitis, West Nile virus, and avian influenza;

    • Human activities such as motor vehicle collisions, collisions at wind energy facilities, artificial hazards (e.g., fences, fishing nets, erosion control material), feeding and habituation, and recreational activities (e.g., human visitation at parks and refuges); and

    • Stochastic events such as drought and hurricanes.

    Environmental effects from climate change are likely to exacerbate the impacts of drought and hurricanes, and flooding of nene habitat due to sea level rise may become a threat in the future. Existing regulatory mechanisms and conservation efforts do not effectively address the introduction and spread of nonnative plants and animals and other threats to the nene.

    We are proposing to promulgate a section 4(d) rule. We are proposing to modify the normal take prohibitions to allow certain activities conducted on lands where nene occur or where they would occur if we were to reintroduce them to areas of their historical distribution. Under the proposed 4(d) rule, take of nene caused by actions resulting in intentional harassment that is not likely to cause direct injury or mortality, control of introduced predators, or habitat enhancement beneficial to nene would be not be prohibited. The proposed 4(d) rule identifies these activities to provide protective mechanisms to landowners and their agents so that they may continue with certain activities that are not anticipated to cause direct injury or mortality to nene and that will facilitate the conservation and recovery of nene. Federally implemented, funded, or permitted actions would continue to be subject to the requirements of section 7 of the Act and eligible for an incidental take exemption through section 7(o).

    Information Requested Public Comments

    We intend that any final action resulting from this proposal will be based on the best available scientific and commercial data and will be as accurate and as effective as possible. Therefore, we invite governmental agencies, the scientific community, industry, Native Hawaiian organizations, or any other interested parties to submit comments or recommendations concerning any aspect of this proposed rule. Comments should be as specific as possible. We are specifically requesting comments on:

    (1) The appropriateness of our proposal to reclassify nene from endangered to threatened.

    (2) The factors that are the basis for making a reclassification determination for a species under section 4(a) of the Act (16 U.S.C. 1531 et seq.), which are:

    (a) The present or threatened destruction, modification, or curtailment of its habitat or range;

    (b) Overutilization for commercial, recreational, scientific, or educational purposes;

    (c) Disease or predation;

    (d) The inadequacy of existing regulatory mechanisms; or

    (e) Other natural or manmade factors affecting its continued existence.

    (3) Biological, commercial trade, or other relevant data concerning any threats (or lack thereof) to the nene and existing regulations that may be addressing those threats.

    (4) Additional information concerning the historical and current status, range, distribution, and population size of this species, including the locations of any additional populations of this species.

    (5) Any information on the biological or ecological requirements of the species and ongoing conservation measures for the species and its habitat.

    (6) Any information on foreseeable changes to State land use or County land use planning within the boundaries of the nene's range that may affect future habitat availability for the nene.

    (7) The appropriateness of a rule under section 4(d) of the Act to allow certain actions to take nene, and any additional actions that should be considered for authorization.

    (8) The appropriateness of a rule under section 4(d) of the Act to allow interstate commerce for nene in captivity outside Hawaii.

    (9) Any additional information pertaining to the promulgation of a rule under section 4(d) of the Act to allow certain actions that may take nene.

    (10) Relevant data on climate change and potential impacts to the nene and its habitat.

    We will take into consideration all comments and any additional information we receive. Such communications may lead to a final rule that differs from this proposal. All comments, including commenters' names and addresses, if provided to us, will become part of the supporting record. Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include. Please note that submissions merely stating support for or opposition to the action under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act directs that determinations as to whether any species is an endangered or a threatened species must be made “solely on the basis of the best scientific and commercial data available.”

    You may submit your comments and materials concerning the proposed rule by one of the methods listed in ADDRESSES. We request that you send comments only by the methods described in ADDRESSES.

    If you submit information via http://www.regulations.gov, your entire submission—including any personal identifying information—will be posted on the website. If your submission is made via a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so.

    We will post all hardcopy submissions on http://www.regulations.gov. Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on http://www.regulations.gov, or by appointment, during normal business hours at the U.S. Fish and Wildlife Service, Pacific Islands Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).

    Public Hearing

    Section 4(b)(5)(E) of the Act provides for a public hearing on this proposal, if requested. We must receive a request for a public hearing, in writing, at the address shown in FOR FURTHER INFORMATION CONTACT by the date specified in DATES. We will schedule a public hearing on this proposal, if requested, and announce the date, time, and place of the hearing, as well as how to obtain reasonable accommodations, in the Federal Register at least 15 days before the hearing.

    Peer Review

    In accordance with our policy, “Notice of Interagency Cooperative Policy for Peer Review in Endangered Species Act Activities,” which published in the Federal Register on July 1, 1994 (59 FR 34270), we will seek the expert opinion of at least three appropriate independent specialists regarding scientific data and interpretations contained in this proposed rule. We will send copies of this proposed rule to the peer reviewers immediately following publication in the Federal Register. This assessment will be completed during the public comment period. The purpose of such review is to ensure that our decisions are based on scientifically sound data, assumptions, and analysis. Accordingly, the final decision may differ from this proposal.

    Background Previous Federal Action

    On March 11, 1967, the Secretary of the Interior identified nene as an endangered species (32 FR 4001), under the authority of the Endangered Species Preservation Act of 1966 (80 Stat. 926; 16 U.S.C. 668aa(c)). On March 8, 1969, the Secretary of the Interior again identified nene as an endangered species (34 FR 5034) under section 1(c) of the Endangered Species Preservation Act of 1966. On October 13, 1970, the Director of the Bureau of Sport Fisheries and Wildlife listed nene as an endangered species (35 FR 16047) under the authority of the new regulations implementing the Endangered Species Conservation Act (ESCA) of 1969. Species listed as endangered under the ESCA of 1969 were automatically included in the List of Endangered and Threatened Wildlife when the Endangered Species Act (Act) was enacted in 1973.

    On February 14, 1983, the Service released the Nene Recovery Plan (USFWS 1983). On September 24, 2004, the Service published for comment (69 FR 57356) the Draft Revised Recovery Plan for Nene (USFWS 2004). The Draft Revised Recovery Plan presented additional information on the status of the species, factors affecting species recovery, and an updated framework for species recovery.

    A 5-year status review of the nene was completed on September 30, 2011 (USFWS 2011a). This review concluded that nene continued to meet the definition of an endangered species under the Act, and recommended no change in the classification of nene as endangered. However, current information indicates the species is not in danger of extinction and may warrant reclassification from endangered to threatened.

    Species Information

    The original rules identifying nene as an endangered species (32 FR 4001, 34 FR 5034, 35 FR 16047) listed its scientific name as Branta sandvicensis and its common name as “Hawaiian goose (Nene).” Currently the Federal List of Endangered and Threatened Wildlife (50 CFR 17.11) gives its scientific name as Branta (=Nesochen) sandvicensis, and its common name as “Hawaiian goose,” without indicating “nene” as an alternative common name. This species was once placed in the genus Nesochen by the American Ornithologists' Union (AOU) (1982); however, it was subsequently reassigned to the genus Branta (AOU 1993) based on analysis of mitochondrial DNA by Quinn et al. (1991). Thus, Branta sandvicensis is the only currently accepted scientific name. The common name “Hawaiian goose” continues to be accepted by the ornithological community (AOU 1998). However, the Hawaiian common name “nene” is also widely familiar to the public and is, for example, frequently referenced in governmental documents within the State of Hawaii (e.g., Hawaii Department of Land and Natural Resources (DLNR) 2005). Therefore, we are including in this document a proposal to return to the scientific and common names that were used in the original listing rules, with “nene” as an accepted alternative common name.

    The nene is a medium-sized goose with an overall length of approximately 25 to 27 inches (in) (63 to 65 centimeters (cm)) (Banko et al. 1999, p. 2). The plumage of both sexes is similar (Banko et al. 1999, p. 2). This species is adapted to a terrestrial and largely non-migratory lifestyle in the Hawaiian Islands with limited freshwater habitat (Banko et al. 1999, p. 1). Adaptations to a terrestrial lifestyle include increased hindlimb size, decreased forelimb size, more upright posture, and reduced webbing between the toes compared to other species of Branta (Banko et al. 1999, p. 1; Olson and James 1991, p. 42). Compared to the related Canada goose (Branta canadensis), nene wings are about 16 percent smaller in size and their flight is not as strong (Banko et al. 1999, p. 9). Nene are capable of inter-island and high altitude flight, but they do not migrate out of the Hawaiian archipelago (Banko et al. 1999, p. 9).

    Nene currently use shrublands, grasslands, sparsely vegetated lava flows, and human-altered habitats ranging from coastal to alpine environments (Wilson and Evans 1890-1899, p. 186; Munro 1944, pp. 41-42; Scott et al. 1986, p. 77; Banko et al. 1999, pp. 4-5). In the grassy shrublands and sparsely vegetated lava flows on the islands of Hawaii and Maui, nene nest, raise their young, forage, and molt (Banko et al. 1999, p. 2). Some nene populations on these islands move seasonally from montane foraging grounds to lowland or midelevation nesting areas (Banko et al. 1999, p. 2). On the island of Kauai, nene are primarily found using lowland habitats such as coastal wetlands at Hanalei National Wildlife Refuge (NWR), with the exception of the Na Pali Coast (USFWS 2004, pp. 15, 17).

    Nene are currently known to occupy various habitat and vegetation community types ranging from coastal dune vegetation and nonnative grasslands (such as golf courses, pastures, and rural areas) to sparsely vegetated low- and high-elevation lava flows, mid-elevation native and nonnative shrubland, cinder deserts, native alpine grasslands and shrublands, and open and nonnative alpine shrubland-woodland community interfaces (Banko et al. 1999, pp. 4-6). On the island of Kauai, nene also use a number of coastal wetland areas including taro loi (ponds) (A. Marshall 2017a, pers. comm.). Nene are browsing-grazers; the composition of their diet depends largely on the vegetative composition of their surrounding habitats, and they appear to be opportunistic in their choice of food plants as long as they meet nutritional demands (Banko et al. 1999, pp. 6-8; Woog and Black 2001, p. 324). Nene may exhibit seasonal movements to grasslands in periods of low berry production and wet conditions that produce grass with a high water content and resultant higher protein content. The sites currently used by nene for nesting range from coastal lowland to subalpine zones and demonstrate considerable variability in features (Banko et al. 1999, pp. 4-5). However, the current distribution of nene nesting sites has been influenced by the location of release sites of captive-bred individuals (Hawaii Division of Forestry and Wildlife (DOFAW) 2012, pp. 9-10). Historical reports from the island of Hawaii indicate that nene bred and molted primarily in the lowlands during winter months and moved upslope in the hotter and drier summer months (Henshaw 1902, p. 105; Munro 1944, pp. 41-42; Banko 1988, p. 35). Reproductive success is relatively low in upland habitats on the islands of Hawaii and Maui, and higher in lowland habitat on Kauai (Banko et al. 1999, p. 19).

    Nene have an extended breeding season with eggs being laid from August to April (Banko et al. 1999, p. 12). Nesting peaks in December, and most goslings hatch from December to January (Banko et al. 1999, p.12). On the island of Kauai, nene frequently nest earlier (A. Marshall 2017a, pers. comm.). Nene nest on the ground, in a shallow scrape in the dense shade of a shrub or other vegetation. A clutch typically contains three to five eggs, and incubation lasts for 29 to 32 days (Banko et al. 1999, pp. 14-15). Once hatched, the young may remain in the nest for 1 to 2 days; all hatchlings depart the nest after the last egg is hatched (Banko et al. 1999, p. 12). Fledging (i.e., development of wing feathers large enough for flight) occurs at 10 to 12 weeks for captive birds, but may be later in the wild (Banko et al. 1999, p. 18). During molt, adults are flightless for a period of 4 to 6 weeks and generally attain their flight feathers at about the same time as their offspring. When flightless, goslings and adults are extremely vulnerable to predators such as cats, dogs, and mongoose. After molting and fledging, around June to September, family groups frequently congregate in post-breeding flocks, often far from nesting areas. Nene reach sexual maturity at 1 year of age, but usually do not form pair bonds until the second year. Females are highly philopatric (loyal to their place of birth) and nest near their natal area, while males more often disperse (Banko et al. 1999, p. 13).

    Nene and one or more now extinct species of Branta are thought to have once been widely distributed among the main Hawaiian Islands. Fossil remains of nene have been found on Maui, Molokai, Lanai, and Kauai (Olson and James 1991, p. 43). However, nene fossils have not yet been found on Niihau (USFWS 2004, p. 6). On Oahu, all fossils appear to be of a related but extinct Branta form (Olson and James 1991, p. 43). The fossil record indicates the prehistoric (before 1778) range of nene was much greater than the historically observed range (Banko et al. 1999, p. 1). However, it is difficult to estimate original nene population numbers because the species composition and even gross structure of the vegetation before Polynesian arrival is poorly understood (USFWS 2004, p. 7). By 1960, fewer than 30 nene remained on Hawaii Island (Smith 1952, p. 1). The release of captive-bred nene, which began in 1960, helped save the species from imminent extinction (USFWS 2004, pp. 2-3). As a result of such programs, wild populations of nene now occur on four of the main Hawaiian Islands. As of 2016, the Statewide population of wild Hawaiian geese was estimated to have reached 2,855 individuals; the wild populations on the islands of Hawaii, Maui, Molokai, Kauai, and Oahu were estimated to have 1,095, 616, 35, 1,107, and 2 individuals, respectively (Nene Recovery Action Group [NRAG] 2017, unpublished). For maps of areas currently used by nene, see USFWS (2017).

    Recovery Planning

    Section 4(f) of the Act directs us to develop and implement recovery plans for the conservation and survival of endangered and threatened species unless we determine that such a plan will not promote the conservation of the species. Under section 4(f)(1)(B)(ii), recovery plans must, to the maximum extent practicable, include “objective, measurable criteria which, when met, would result in a determination, in accordance with the provisions of [section 4 of the Act], that the species be removed from the list.” However, revisions to the Lists of Endangered and Threatened Wildlife and Plants (adding, removing, or reclassifying a species) must be based on determinations made in accordance with sections 4(a)(1) and 4(b) of the Act. Section 4(a)(1) requires that the Secretary determine whether a species is endangered or threatened (or not) because of one or more of five threat factors. Section 4(b) of the Act requires that the determination be made “solely on the basis of the best scientific and commercial data available.” While recovery plans provide important guidance to the Service, States, and other partners on methods of enhancing conservation and minimizing threats to listed species, as well as measurable criteria against which to measure progress towards recovery, they are not regulatory documents and cannot substitute for the determinations and promulgation of regulations required under section 4(a)(1) of the Act. A decision to revise the status of a species on, or to remove a species from, the Federal List of Endangered and Threatened Wildlife (50 CFR 17.11) is ultimately based on an analysis of the best scientific and commercial data then available to determine whether a species is no longer an endangered species or a threatened species, regardless of whether that information differs from the recovery plan.

    There are many paths to accomplishing recovery of a species, and recovery may be achieved without all of the criteria in a recovery plan being fully met. For example, one or more criteria may be exceeded while other criteria may not yet be accomplished. In that instance, we may determine that the threats are minimized sufficiently and the species is robust enough to delist. In other cases, recovery opportunities may be discovered that were not known when the recovery plan was finalized. These opportunities may be used instead of methods identified in the recovery plan. Likewise, information on the species may be learned that was not known at the time the recovery plan was finalized. The new information may change the extent to which existing criteria are appropriate for recognizing recovery of the species. Recovery of a species is a dynamic process requiring adaptive management that may, or may not, follow all of the guidance provided in a recovery plan.

    In 1983, the Service published the Nene Recovery Plan and concluded that the nene population in the wild was declining; however, the exact causes of the decline were not clearly understood (USFWS 1983, p. 24). The Statewide population was estimated at approximately 600 nene with 390 ± 120 nene on Hawaii Island and 112 nene on Maui. Based on the available data, the plan recommended the primary objective to delist the species was establishing a population of 2,000 nene on Hawaii Island and 250 nene on Maui, well distributed in secure habitat and maintained exclusively by natural reproduction (USFWS 1983, p. 24). The plan focused on maintenance of wild populations through annual releases of captive-reared birds to prevent further population decline, habitat management including control of introduced predators, and conducting research to determine factors preventing nene recovery and appropriate actions to overcome these factors. The plan also acknowledged that more research, biological data, and better population models would lead to a reassessment of recovery efforts and criteria for delisting the species.

    On September 24, 2004, the Service published for comment (69 FR 57356) the Draft Revised Recovery Plan for Nene (USFWS 2004). The draft revised recovery plan presented additional information on the status of the species, factors affecting species recovery, and an updated framework for species recovery. At the time, the Statewide population was estimated at 1,300 nene with populations on Hawaii (349), Maui (336), Kauai (564), and Molokai (55). The primary factors affecting the nene recovery in the wild were: (1) Predation by introduced mammalian predators (Factor C), (2) inadequate nutrition (Factor E), (3) lack of lowland habitat (Factor A), (4) human-caused disturbance and mortality (Factor E), (5) behavioral issues (Factor E), (6) genetic issues (Factor E), and (7) disease (Factor C). The draft revised recovery plan recommended the following criteria for downlisting the nene from endangered to threatened: (1) Self-sustaining populations exist on Hawaii, Maui Nui (Maui, Molokai, Lanai, Kahoolawe), and Kauai (target of at least 2,000 birds distributed in 7 populations over 15 years); and (2) sufficient suitable habitat to sustain the target population levels on each island is identified, protected, and managed in perpetuity (USFWS 2004, pp. 50-52). Self-sustaining was defined as maintaining (or increasing) established population levels without additional releases of captive-bred nene, although manipulation such as predator control or pasture management may need to be continued. The draft revised recovery plan stated that consideration for delisting could occur once all of the downlisting criteria had been met, and population levels on Hawaii, Maui Nui, and Kauai had all shown a stable or increasing trend (from downlisting levels) for a minimum of 15 additional years (i.e., for total of 30 years).

    As noted above, substantial self-sustaining populations exist and are well distributed in multiple localities on Hawaii Island, Maui, and Kauai (NRAG 2017; USFWS 2017), totaling nearly 3,000 individuals. The species continues to be conservation-reliant (i.e., dependent on long-term management commitments to active predator control and habitat management), but with ongoing management we expect these populations to continue to be self-sustaining without additional releases of captive-bred birds. As discussed below under Factor A, certain habitat stresses continue to exist, but as nene have proven adaptable to diverse native and human-modified habitats, it appears that with active management the extent and quality of existing breeding habitat is sufficient to support robust populations in multiple localities throughout the range. Additional management in seasonally occupied non-breeding habitat would improve population viability.

    The 2004 draft revised recovery plan sets forth the general recovery strategy for nene (USFWS 2004, p. 47), as follows. In order for nene populations to survive they should be provided with generally predator-free breeding areas and sufficient food resources. Human-caused disturbance and mortality should be minimized, and genetic and behavioral diversity maximized. The goal of recovery stated in the draft revised recovery plan is to enable the conservation of nene by using a mix of natural and human-altered habitats in such a way that the life-history needs of the species are met and the populations become self-sustaining. While it is important to restore nene as a functioning component of the native ecosystem to ensure long-term species survival, it should be noted that nene currently successfully use a gradient of habitats ranging from highly altered to completely natural. Additionally, some populations exhibit behaviors that differ from what it is believed wild birds historically displayed. Nene are a highly adaptable species, which bodes well for recovery of the species.

    Conservation needs and activities to recover nene vary among islands due to differences in factors affecting nene populations both within and among islands. For example, although mongooses occur on Hawaii, Maui, and Molokai, Kauai does not yet have an established mongoose population; thus predator control priorities there are different. In addition, elevations used by nene vary among sites and among islands, and vegetation available to nene also differs between sites and by island.

    Implementation of Recovery Actions for the Nene

    Nene are now more abundant than when they were federally listed as endangered in 1967, largely due to a captive propagation program that began in 1949 before the species was listed and continued through 2011. The program was initiated prior to Hawaiian statehood in collaboration between Territory of Hawaii biologists and private partners, and was operated by the Division of Fish and Game of the territorial government. The initial site of the captive propagation operation was at Pohakuloa on Hawaii Island. Operations moved to Olinda, Maui, in 1989. In 1994, a new partnership was established between the DLNR, the Service, and The Peregrine Fund (TPF) to expand facilities and operations for captive propagation to include Hawaiian forest bird species. The Peregrine Fund established captive propagation operations at a newly built propagation facility in Keauhou on Hawaii Island in addition to the operations at Olinda. In 2000, management of the captive propagation program was transferred to the Zoological Society of San Diego. In addition, a number of zoos and private facilities in the United States and abroad continue to maintain and breed nene in captivity (Kear and Berger 1980, pp. 59-77; A. Marshall 2017b, pers. comm.). The existence of privately owned nene outside of Hawaii provides additional insurance against extinction of the species, but due to concerns about disease introduction, they are not currently used as a source for supplementation of the wild population and are not considered a significant contributor of conservation of the species. However, they are still subject to permitting requirements under the Act for interstate commerce.

    Smaller operations to breed nene in open-top pens in semi-captive environments were conducted at Hawaii Volcanoes and Haleakala National Parks. In some cases, wild birds were placed into the pens where they could breed protected from predators. The young fledged from the pens to disperse to the surrounding areas. In some cases, birds were released directly into the wild farther from the pens.

    In the years between 1960 and 2008, some 2,800 captive-bred nene were released into areas of their former range at more than 20 sites throughout the main Hawaiian Islands. Most releases of captive birds used open-top pens to provide protection from predators. The pens provide protection to the birds as long as they are inside the pens, and the birds frequently returned to breed in the same pens in subsequent years.

    Many of the earlier releases were accompanied by little or no management of predators and habitats. Monitoring of released birds showed high mortality and low nesting success, indicating that food availability and predators had a significant impact on wild populations (Banko 1992, pp. 102-104). The highest levels of survival and reproductive success were documented at Hawaii Volcanoes and Haleakala National Parks, where more intensive management of threats was initiated, demonstrating the need and benefits of habitat management and predator control (Black et al. 1997, p. 1,171). Recent years have seen an increase in the capacity of conservation agencies and partners to manage habitat and control predators on larger spatial scales. Although not all release sites have supported sustained populations, areas in which predators are low or controlled and habitat is managed for native food plant species have allowed nene to fare better (Hawaii Division of Forestry and Wildlife 2012, p. 19).

    Recent studies on movements of nene using satellite telemetry documented the re-establishment of traditional movement patterns in two breeding subpopulations on Hawaii Island (Hess et al. 2012, pp. 480-482). Nene spent the breeding and molting seasons at lower elevations from September to April, and moved to higher elevation areas during the non-breeding season in May to August. Hess et al. (2012, pp. 479, 482) contend that this movement pattern may be beneficial to nene for the following reasons: (1) Altitudinal migration may allow nene to track availability of food resources not otherwise seasonally available (Black et al. 1997, pp. 1,170-1,171); (2) migration may enhance survival during the non-breeding season by avoiding nonnative predators in (lowland) breeding areas; (3) nene may be able to reduce exposure to human activities by occupying high-elevation areas during the non-breeding season; and (4) there may be opportunities for greater genetic exchange if pair bonds are formed between individuals from separate breeding subpopulations at non-breeding locations. This movement pattern is believed to have occurred historically (Banko et al. 1999, pp. 3-4).

    Population Viability Analyses

    Black and Banko (1994) conducted a population viability analysis using the VORTEX software program to model the long-term fate of nene under three different management scenarios: (1) No further releases or management, (2) releases mirroring those of the past 30 years, and (3) increased management without further releases. The report concluded that only under the third scenario could all three populations (Hawaii, Maui, and Kauai) survive for 200 years, and that reintroduction alone as a management tool may continue to be effective in delaying extinction on Hawaii, but will not lead to a self-sustaining population. The study concluded that enhanced management efforts, which include an appropriate predator control effort, would enable nene to reach a self-sustaining level.

    Another population viability analysis was conducted for nene in Hawaii Volcanoes National Park to examine management options more specific to that area (Hu 1998). First year mortality was identified as the primary limiting factor for nene in Hawaii Volcanoes National Park. From 1990 to 1996, survival of fledglings averaged 84 percent for females and 95 percent for males, while survival from laying to fledging ranged from 7 to 19.5 percent (mean 12 percent; Hu 1998, pp. 84-85). While predator control had reduced egg predation, fledging success remained low, largely due to inadequate nutrition. The study found that open-top pens cannot sustain a viable nene population in Hawaii Volcanoes National Park. The study suggests that while management techniques such as grassland management, supplemental feeding, and cultivation of native food plants may sustain nene in Hawaii Volcanoes National Park, such approaches require considerable effort and would require increasing resource expenditures. Thus, Hu (1998, pp. 107-114) suggested that nene would be more secure if they were integrated into habitat management instituted on a larger scale that would involve the creation of native-dominated, fire-adapted landscapes at low and mid-elevations in Hawaii Volcanoes National Park and more efficient, widespread predator control techniques, allowing reestablishment of their seasonal movement patterns between various locations.

    Black et al. (1997) analyzed survival data from 1960 through 1990 for released nene on the island of Hawaii and found that the highest mortality rate was found among newly released goslings during drought years. They also found that nene at Hawaii Volcanoes National Park had the lowest annual mortality rates. The three main factors affecting mortality rates were found to be release method, age at time of release, and year of release. Releasing pre-fledged goslings with parents or foster parents from open-top pens during years with sufficient rainfall was found to be the most successful release method on the island of Hawaii (Black et al. 1997, p. 1,170). On Kauai, where mongooses are not yet established, protecting the nesting area from other predators, such as dogs and cats, was found to be extremely successful (T. Telfer 1998, pers. comm., as cited in USFWS 2004).

    Amidon (2017) recently conducted a preliminary assessment of the short-term population trends in nene populations on the four main Hawaiian Islands where nene currently occur. This assessment used count-based and demographic models (Morris and Doak 2002, pp. 8-9) developed with readily available information on each population (Hu 1998; Hu 1999, unpubl. as cited in Banko et al.; USFWS 2004; Bailey and Tamayose 2016, in litt.; Kendall 2016, in litt.; Uyehara 2016a, in litt.) projected over a 20-year time period assuming constant management. Count-based models (for Hawaii Volcanoes National Park, the island of Maui, Haleakala National Park, the island of Molokai, and the island of Kauai) showed an increase or leveling off around current population estimates (Amidon 2017, pp. 10-16). Demographic models variously projected level or slightly declining populations (Hakalau Forest NWR and Haleakala National Park) or continued increase (Kauai NWR Complex) (Amidon 2017, pp. 18-21). Available data did not allow modeling of nene populations on lands outside national parks and national wildlife refuges, where management and population trends are likely to differ.

    Current Status Summary

    In conclusion, the implementation of recovery actions for nene has significantly reduced the risk of extinction for the species. On the brink of extinction, the captive propagation and release program successfully increased the number of individuals and re-established populations throughout the species' range on Kauai, Molokai, Maui, and Hawaii Island. Studies of foraging behavior identified nene food preferences and nutritional value of food resources contributing to a greater understanding of habitat requirements during the breeding and non-breeding seasons. Current populations are sustained by ongoing management (e.g., predator control, habitat management for feral ungulates and nonnative plants). On Hawaii Island, research indicates that traditional movements are being restored, which could be expected to improve survival and breeding, as well as genetic exchange between subpopulations. Recent population modeling data suggest that certain key populations are expected to maintain current levels or increase into the future if the current level of management is continued.

    Summary of Factors Affecting the Species

    Section 4 of the Act and its implementing regulations (50 CFR part 424) set forth the procedures for listing species, reclassifying species, or removing species from listed status. “Species” is defined by the Act as including any species or subspecies of fish or wildlife or plants, and any distinct vertebrate population segment of vertebrate fish or wildlife that interbreeds when mature (16 U.S.C. 1532(16)). A species may be determined to be an endangered or threatened species because of any of one or a combination of the five factors described in section 4(a)(1) of the Act: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. We must consider these same five factors in reclassifying a species from endangered to threatened (i.e., downlisting). We may downlist a species if the best available scientific and commercial data indicate that the species no longer meets the definition of endangered, but instead meets the definition of threatened because the species' status has improved to the point that it is not in danger of extinction throughout all or a significant portion of its range, but the species is not fully recovered.

    Determining whether a species has improved to the point that it can be downlisted requires consideration of whether the species is endangered or threatened because of the same five categories of threats specified in section 4(a)(1) of the Act. A species is “endangered” for purposes of the Act if it is in danger of extinction throughout all or a “significant portion of its range” and is “threatened” if it is likely to become endangered within the foreseeable future throughout all or a “significant portion of its range.”

    In considering what factors might constitute threats, we must look beyond the exposure of the species to a particular factor to evaluate whether the species may respond to the factor in a way that causes actual impacts to the species. If there is exposure to a factor and the species responds negatively, the factor may be a threat, and during the five-factor analysis, we attempt to determine how significant a threat it is. The threat is significant if it drives or contributes to the risk of extinction of the species, such that the species warrants listing as endangered or threatened as those terms are defined by the Act. However, the identification of factors that could impact a species negatively may not be sufficient to compel a finding that the species warrants listing. The information must include evidence sufficient to suggest that the potential threat is likely to materialize and that it has the capacity (i.e., it should be of sufficient magnitude and extent) to affect the species' status such that it meets the definition of endangered or threatened under the Act.

    In the following analysis, we evaluate the status of the nene throughout all of its range as indicated by the five-factor analysis of threats currently affecting, or that are likely to affect the species within the foreseeable future.

    Factor A. The Present or Threatened Destruction, Modification, or Curtailment of Its Habitat or Range

    The draft revised recovery plan identified the lack of lowland habitat and inadequate nutrition as two habitat-related stressors limiting nene recovery (USFWS 2004, pp. 29-30). Nene continue to be affected by historic and ongoing habitat destruction and modification caused by urbanization, agricultural activities, drought, feral ungulates, and nonnative plants. These factors limit suitable breeding and flocking habitat, constraining the recovery of nene populations.

    Historical habitat loss was largely a result of human activities such as urban development and land conversion for agricultural activities, particularly in lowland areas. Degradation of lowland habitats used by nene began with Polynesian colonization (around 1,600 years ago) and has continued since European arrival over the past 200 years (Kirch 1982, pp. 7-10). Impacts to lowland habitat included clearing of land for settlements and agriculture; increased frequency of fire; heavy grazing, browsing, and soil disturbance by introduced deer, cattle, goats, sheep, and pigs; and the spread of nonnative plants (Cuddihy and Stone 1990, pp. 103-107).

    The threat of destruction and modification of habitat, particularly in lowland areas, by urbanization and land use conversion, including agriculture, is ongoing and expected to continue to limit the amount of nene foraging and nesting habitat. Past land use practices have resulted in great reduction or loss of native vegetation below 2,000 feet (ft) (600 meters (m)) throughout the Hawaiian Islands (TNC 2006). Hawaii's agricultural industries (e.g., sugar cane, pineapple) have been declining in importance, and large tracts of former agricultural lands are being converted into residential areas or left fallow (TNC 2007). In addition, Hawaii's population has increased almost 10 percent in the past 10 years, further increasing demands on limited land and water resources in the islands (Hawaii Department of Business, Economic Development and Tourism 2013, in litt.). While breeding habitat has some level of protection in the national parks, national wildlife refuges, and some State lands, there is little to no protection for habitat that nene use outside the breeding season. Nene are vulnerable at this time as well as during the breeding season as they are moving around to different areas, exposing them to additional predation in unprotected habitat, poor availability of suitable foraging habitat, and interactions with humans and human structures (wind towers, vehicles, etc). Human activities associated with the development and urbanization of lowland habitat will continue to impact nene. For example, nene collide with trees, fences, and particularly motor vehicles (Banko and Elder 1990; Banko et al. 1999). Nene are attracted to feeding opportunities provided by mowed grass, weeds, and human handouts. Feeding, in particular, makes nene vulnerable to collisions along roadsides as they frequently become tame and unafraid of human activity (Banko et al. 1999). Mortality is high in human-modified habitats due to increased predation, collisions, and human-caused accidents (Banko et al. 1999).

    The alteration of lowland areas and increasing pressure from human activities (including hunting; see Factor B discussion, below) led to the extirpation of nene on Kauai and Molokai, and the loss of seasonally important lowland breeding habitat in leeward regions of islands with elevations above 5,000 ft (1,524 m) (Maui and Hawaii) (Baldwin 1945). From the time of European arrival (in the late 1700s) until the late 1800s, nene were thought to be all but extirpated, except for a widely distributed population on the island of Hawaii (Baldwin 1945, pp. 27-30). By the 1940s, Baldwin (1945, p. 35) estimated a reduction in the range of nene on Hawaii Island from 2,475 square miles (mi2) (6,410 square kilometers (km2)) to 1,150 mi2 (2,979 km2), a loss of over half of its remaining range on Hawaii Island since European contact. At the time the captive propagation program began in the late 1950s, the remaining wild nene were restricted to montane habitats in the “saddle area” between Mauna Loa and Mauna Kea on Hawaii Island (Baldwin 1945, p. 33).

    Feral ungulates and nonnative plants led to further degradation of nene habitat by negatively impacting forage quality, shelter, and potential nest sites. Grazing and browsing by introduced cattle, goats, and sheep converted significant portions of native montane forest and shrubland between 1,640 and 6,562 ft (500 and 2,000 m) to wild grassland and managed pastureland dominated by nonnative species (Cuddihy and Stone 1990, pp. 59-63, 63-67). Effects of nonnative ungulates have been somewhat less severe above 6,562 ft (2,000 m) because nonnative weeds are less prevalent (Banko et al. 1999, p. 6). Nonnative plants adversely affect native habitat in Hawaii by: (1) Modifying the availability of light, (2) altering soil-water regimes, (3) modifying nutrient cycling, and (4) altering fire regimes of native plant communities (i.e., the “grass/fire cycle” that converts native-dominated plant communities to nonnative plant communities) (Smith 1985, pp. 180-181; Cuddihy and Stone 1990, p. 74; D'Antonio and Vitousek 1992, p. 73; Vitousek et al. 1997, p. 6).

    Studies indicate that inadequate nutritional quality is a limiting factor on nene reproduction and gosling survival, especially on Hawaii and Maui (USFWS 2004, pp. 29-30). Proper nutrition is critical for successful reproduction. Breeding females require carbohydrates and protein to increase fat reserves for egg laying and incubation; goslings require high-protein foods for growth and development (Ankney 1984, pp. 364-370; Banko et al. 1999, p. 7). Banko (1992, pp. 103-104) suggested that low breeding rates (20 to 63 percent) and low nest success (44 percent) at several sites on Maui and Hawaii from 1979 to 1981 were likely attributable to poor quality or low availability of foods. Baker and Baker (1995, p. 2; 1999, p. 12) found that the high rates of gosling mortality (57 to 81 percent) in Haleakala National Park during the mid-1990s were due to starvation and dehydration. Between 1989 and 1999, lack of adequate food or water also appeared to be a factor limiting nene recruitment in Hawaii Volcanoes National Park (Rave et al. 2005, p. 14). In many instances of gosling mortality, the actual cause of death may be exposure because goslings are weakened by malnutrition (at hatching) and were unable to keep up with parents, and therefore got chilled or overheated and died (Baker and Baker 1999, p. 13). Emaciation was the most common cause of death diagnosed in 71 out of 300 adult and gosling mortalities submitted to the National Wildlife Health Research Center between 1992 and 2013 for which a cause of death was identified (Work et al. 2015, p. 692). More cases of emaciation were diagnosed on Hawaii Island (32), and to a lesser extent Kauai (21) and Maui (13), perhaps reflecting the rates of hatching and fledgling success and nutritional quality of habitats on the respective islands. Habitat also continues to be reduced due to the spread of unpalatable alien grasses (e.g., guinea grass (Megathyrsus maximus), sword grass (Miscanthus floridulus)) and other weeds (e.g., koa haole (Leucaena leucocephala), lantana (Lantana camara)), as this spread diminishes foraging opportunities (Banko et al. 1999, p. 23). Therefore, inadequate nutritional quality due to the lack of suitable foraging opportunities in and around current breeding areas, particularly at higher elevations on Maui and Hawaii Island, coupled with the loss of lowland breeding areas across its range, is expected to continue as a threat to the nene.

    Drought has been identified as a factor contributing to nene mortality. Drought reduces the amount and quality of available forage, thereby increasing the risk of nene mortality due to starvation and dehydration; thus, for example, nene exhibited higher rates of mortality in drought years during the prolonged island-wide drought between 1976 and 1983 on Hawaii Island (Black et al. 1997, pp. 1,165-1,169). Drought was also thought to have contributed to the population decline (10 percent) at Hawaii Volcanoes National Park in the late 1990s (Rave et al. 2005, p. 12). Numerous and recurrent droughts have been historically documented throughout the Hawaiian Islands (Giambelluca et al. 1991, pp. 3-4; Hawaii Civil Defense 2011, ch. 14, pp. 1-12), with the most severe events often associated with the El Niño phenomenon (Hawaii Civil Defense 2011, p. 14-3). Based on the frequency of drought and its population-level impacts to nene, we conclude that the threat of drought is ongoing and likely to continue periodically into the foreseeable future.

    Recovery efforts initially focused on the establishment of populations with the majority of releases of captive-bred nene at high-elevation native shrublands (above 5,000 ft (1,524 m)) on Hawaii Island and Maui. High-elevation nesting areas are less modified than lowlands (Banko et al. 1999, p. 6), but may provide poorer quality habitat for nene foraging and nesting, due to drier conditions and phenology of food plants, which limit available food resources during critical pre-breeding and breeding periods (Black et al. 1994, pp. 101-103; Black et al. 1997, p. 1,170). Black et al. (1997, p. 1,169) found that nene that remained at high-elevation sites year-round exhibited lower rates of reproductive success and survival than those that dispersed from release sites. Nene survival and breeding success improved by moving away from dry upper montane volcanic scrubland to managed grasslands or managed ranchland, or if they were provided supplemental feed and water, particularly in drought years (Black et al. 1994, p. 103; Black et al. 1997, pp. 1,169-1,170). Subsequent reintroductions at low- and mid-elevation sites, first on Kauai and Hawaii Island, and more recently on eastern Molokai and western Maui, demonstrated the ability of nene to successfully become re-established in these areas.

    Currently, nene are found in a range of habitats from sea level to subalpine zones on Kauai, Oahu, Molokai, Maui, and Hawaii Island. Populations are centered around release sites and rely on continued land use protections and habitat management (including predator control) to sustain populations in these areas. On Maui Nui and Hawaii Island, the majority of the nene nest in managed areas at mid- to high-elevation habitats, including Haleakala National Park, Hawaii Volcanoes National Park, and Puu Oo Ranch/Puu 6677; and at lower elevation sites, including Hanaula, Piiholo Ranch, Haleakala Ranch (Waiopae), and Puu O Hoku Ranch (Molokai). On Kauai, most nene nest and live year-round in areas below 984 ft (300 m), where large expanses of managed grasslands (including golf courses) and low levels of predation (mostly due to the absence of a mongoose population) have led to a stable and increasing nene population. The majority of the Kauai population is centered in and around the Hanalei and Kilauea Point NWRs.

    Many of the areas where nene occur in the wild are afforded some level of habitat enhancement that focuses on increasing the survival and reproduction of nene. Habitat enhancement can include predator control, mowing, outplanting, and supplemental feeding. Hawaii Volcanoes National Park has areas where many of these types of enhancement occur. For instance, park staff maintain two predator-resistant open-topped pens, 4 and 5 hectares (10 and 13 acres) in size, as safe-breeding sites with supplemental feed and occasional mowing. In addition, predator control is conducted at key brooding sites, and some areas may be closed to human use during the nene breeding season. The Hawaii Division of Forestry and Wildlife also provides supplemental food for nene populations on Hawaii Island. Haleakala National Park has controlled ungulate populations and horses intermittently grazing in Paliku pasture. Kauai DOFAW also has predator control programs and may provide supplemental feed during drought years. Mowing, grazing, and irrigating grass can improve its attractiveness to geese by increasing the protein content (Sedinger and Raveling 1986, p. 302; Woog and Black 2001, pp. 324-328).

    Highly altered landscapes and nonnative vegetation also can significantly affect nene recovery. For example, nene on Kauai primarily use lowland areas in highly altered, human-impacted habitats such as pastures, agricultural fields, golf courses, and highly degraded waste areas (USFWS 2004, pp. 41-42). Nene have been very successful in these areas, indicating their adaptability to a variety of habitats. Lowlands, however, are often unsuitable because of intense human activity or dense predator populations placing nene at greater risk of predation, and hazardous situations such as habituation to human feeding, vehicle collisions, and golf ball strikes (Natural Resources Conservation Service [NRCS] 2007, p. 7). The recovery of nene is dependent on a variety of habitats ranging from highly altered, managed habitats to habitats consisting of primarily native species, and it may not be feasible to restore habitats to native species in all areas used by nene. It is believed that nene currently require availability of a diverse suite of food resources that may include both nonnative and native vegetation (Baldwin 1947, pp. 108−120; Black et al. 1994, pp. 103-105; Banko et al. 1999, pp. 6-7). However, the current amount and distribution of suitable breeding, foraging, and flocking habitat continues to be a limiting factor for the nene.

    Our analyses of Factor A under the Act include consideration of ongoing and projected changes in climate, and the impacts of global climate change and increasing temperatures on Hawaii ecosystems, all of which are the subjects of active research. Analysis of the historical record indicates surface temperature in Hawaii has been increasing since the early 1900s, with relatively rapid warming over the past 30 years. The average increase since 1975 has been 0.48 degrees Fahrenheit (°F) (0.27 degrees Celsius (°C)) per decade for annual mean temperature at elevations above 2,600 ft (800 m) and 0.16 °F (0.09 °C) per decade for elevations below 2,600 ft (800 m) (Giambelluca et al. 2008, pp. 3-4). Based on models using climate data downscaled for Hawaii, the ambient temperature is projected to increase by 3.8 to 7.7 °F (2.1 to 4.3 °C) over the 21st century, depending on elevation and the emissions scenario (Liao et al. 2015, p. 4344). Environmental conditions in tropical montane habitats can be strongly influenced by changes in sea surface temperature and atmospheric dynamics (Loope and Giambelluca 1998, pp. 504-505; Pounds et al. 1999, pp. 611-612; Still et al. 1999, p. 610; Benning et al. 2002, pp. 14,246-14,248; Giambelluca and Luke 2007, pp. 13-15). On the main Hawaiian Islands, predicted changes associated with increases in temperature include a shift in vegetation zones upslope; a similar shift in animal species' ranges; changes in mean precipitation with unpredictable effects on local environments; increased occurrence of drought cycles; and increases in intensity and numbers of hurricanes (tropical cyclones with winds of 74 miles per hour or higher) (Loope and Giambelluca 1998, pp. 514-515; U.S. Global Change Research Program (US-GCRP) 2009, pp. 10, 12, 17-18, 32-33; Giambelluca 2013, p. 6). The effect on nene of these changes associated with temperature increase is detailed in the following paragraphs.

    The forecast of changes in precipitation is highly uncertain because it depends, in part, on how the El Niño-La Niña weather cycle (an episodic feature of the ocean-atmosphere system in the tropical Pacific having important global consequences for weather and climate) might change (State of Hawaii 1998, pp. 2-10). The historical record indicates that Hawaii tends to be dry (relative to a running average) during El Niño phases and wet during La Niña phases (Chu and Chen 2005, pp. 4809-4810). However, over the past century, the Hawaiian Islands have experienced a decrease in precipitation of just over 9 percent (US National Science and Technology Council 2008, p. 61) and a decreasing trend (from the long-term mean) is evident in recent decades (Chu and Chen 2005, pp. 4802-4803; Diaz et al. 2005, pp. 1-3). Models of future rainfall downscaled for Hawaii generally project increasingly wet windward slopes and mild to extreme drying of leeward areas in particular during the middle and late 21st century (Timm and Diaz 2009, p. 4262; Elison Timm et al. 2015, pp. 95, 103-105). Altered seasonal moisture regimes can have negative impacts on plant growth cycles and overall negative impacts on native ecosystems (US-GCRP 2009, pp. 32-33). Long periods of decline in annual precipitation result in a reduction of moisture availability; an increase in drought frequency and intensity; and a self-perpetuating cycle of nonnative plant invasion, fire, and erosion (US-GCRP 2009, pp. 32-33; Warren 2011, pp. 221-226). Overall, more frequent El Niño events are predicted to produce less precipitation for the Hawaiian Islands. These projected decreases in precipitation are important stressors for nene because they experience substantially higher mortality from starvation in drought years (Hess 2011, p. 59). In addition, the drying trend, especially on leeward sides of islands, creates suitable conditions for increased invasion by nonnative grasses and enhances the risk of wildfire.

    Tropical cyclone frequency and intensity are projected to change as a result of increasing temperature and changing circulation associated with climate change over the next 100 to 200 years (Vecchi and Soden 2007, pp. 1068-1069, Figures 2 and 3; Emanuel et al. 2008, p. 360, Figure 8; Yu et al. 2010, p. 1371, Figure 14). In the central Pacific, modeling projects an increase of up to two additional tropical cyclones per year in the main Hawaiian Islands by 2100 (Murakami et al. 2013, p. 2, Figure 1d). In general, tropical cyclones with the intensities of hurricanes have been an uncommon occurrence in the Hawaiian Islands. From the 1800s until 1949, hurricanes were only rarely reported from ships in the area. Between 1950 and 1997, 22 hurricanes passed near or over the Hawaiian Islands, and 5 of these caused serious damage (Businger 1998, in litt.). A recent study shows that, with a projected shift in the path of the subtropical jet stream northward, away from Hawaii, more storms will be able to approach and reach the Hawaiian Islands from an easterly direction, with Hurricane Iselle in 2014 being an example (Murakami et al. 2013, p. 751). At high-elevation nesting sites, frequent heavy precipitation may affect gosling survival during the cooler months (Hess et al. 2012, p. 483). More frequent and intense tropical storms are likely to increase the number of nest failures and gosling mortalities in mid- and high-elevation habitats on Maui and Hawaii where nene are already at risk of exposure and starvation due to inadequate nutrition (Baker and Baker 1995, p. 13; K. Misajon 2016, pers. comm.; J. Tamayose 2016, pers. comm.). In addition, projected warmer temperatures and increased storm severity resulting from climate change are likely to exacerbate other threats to nene, such as by enhancing the spread of nonnative invasive plants into these species' native ecosystems in Hawaii.

    Finally, sea level rise resulting from thermal expansion of warming ocean water; the melting of ice sheets, glaciers, and ice caps; and the addition of water from terrestrial systems (Climate Institute 2011, in litt.) has the potential for direct effects on nene habitat. Rise in global mean sea level (GMSL) is ongoing and expected to continue for the foreseeable future (i.e., centuries) (Meehl et al. 2012, p. 576; Golledge et al. 2015, pp. 421, 424; DeConto and Pollard 2016, pp. 1, 6) due to warming that has already occurred and an uncertain amount of additional warming caused by future greenhouse gas emissions (Sweet et al. 2017, p. 1). Six risk-based scenarios describing potential future conditions through 2100 project lower and upper bounds of GMSL rise between 0.3 and 2.5 m (1 and 8 ft) (Sweet et al. 2017, pp. vi-vii, 1-55, and Appendices A-D).

    Sea level rise is not expected to be uniform throughout the world, due to factors including, but not limited to: (1) Variations in oceanographic factors such as circulation patterns; (2) changes in Earth's gravitational field and rotation, and the flexure of the crust and upper mantle due to melting of land-based ice; and (3) vertical land movement due to postglacial rebound of topographically depressed land, sedimentation compaction, groundwater and fossil fuel withdrawals, and other non-climatic factors (Spada et al. 2013, p. 484; Sweet et al. 2017, pp. vi-vii, 9, 19). Sea level rise in the Hawaiian Islands is expected to be greater than rise in GMSL (Spada et al. 2013, p. 484; Polhemus 2015, p. 7; Sweet et al. 2017, p. 9). In Hawaii, long-term sea level rise adds to coastal erosion, impacts from seasonal high waves, coastal inundation due to storm surge and tsunami, and drainage problems due to the convergence of high tide and rainfall run-off (SOEST 2017, in litt.). Flooding related to sea level rise would result in the additional loss of lowland habitat occupied by nene in low-lying coastal areas at Huleia NWR on Kauai, Ukumehame on Maui, and Keeau on Hawaii Island.

    Thus, although we cannot predict the timing, extent, or magnitude of specific events, we expect effects of climate change (changes in tropical cyclone frequency and intensity, drought frequency, and sea level rise) to exacerbate the current threats to this species such as predation, inadequate nutrition, and habitat loss and degradation.

    Summary of Factor A

    Habitat destruction and modification from urbanization, agricultural activities, drought, feral ungulates, and invasive plant species remain threats to nene. These factors contribute to an ongoing lack of suitable breeding and flocking habitat, limiting nene population expansion. Historical habitat loss was largely a result of human activities such as urban development and land conversion for agricultural activities, particularly in lowland areas, contributing to the extirpation of nene on Kauai and Molokai, and the loss of seasonally important leeward, lowland breeding areas on islands with elevations above 5,000 ft (1,524 m) (Maui and Hawaii). Feral ungulates and invasive plant species led to further degradation of nene habitat by negatively impacting forage quality, shelter, and potential nest sites.

    Recovery efforts initially focused on the establishment of populations with the majority of releases of captive-bred nene at high-elevation sanctuaries (above 5,000 ft (1,524 m)) on Maui and Hawaii Island. Despite supplemental food and water and localized predator control efforts, nene at these sites experienced high rates of adult mortality and low rates of gosling survival attributed to inadequate nutrition caused by habitat factors such as poor forage quality, drought, and exposure. Research showed that access to managed grassland habitats and habitat enhancement during the breeding season improved foraging opportunities and resulted in increased survival and breeding success. Control of feral ungulate populations in areas such as Hawaii Volcanoes National Park and Haleakala National Park reduced their impacts on native vegetation and likely improved nene foraging and breeding habitat. Subsequent reintroductions at low- and mid-elevation sites, first on Kauai and Hawaii Island, and more recently on eastern Molokai and western Maui, demonstrated the ability of nene to successfully become established in these areas.

    Currently, nene are found in a range of habitats from sea level to subalpine areas on Kauai, Oahu, Molokai, Maui, and Hawaii Island. Populations are centered around release sites and rely on continued land use protections and habitat management (including predator control) to sustain successful breeding and population numbers in these areas.

    Overall, the expansion of existing populations is limited by the lack of suitable breeding and flocking habitat due to continuing urbanization, agricultural activities, and potential conflicts with human activities. Periods of drought are expected to continue and are likely to be exacerbated by the effects of climate change. To minimize the effects of drought on the food availability and adequate nutrition, habitat enhancement activities to provide foraging opportunities, especially during the breeding season, will need to be maintained. The rise in sea level projected by climate change models may threaten any low-lying habitats used by nene. Although the effects of climate change do not constitute a threat to nene now, we do expect them to exacerbate the effects of drought and tropical storms, and to constitute a threat in the foreseeable future.

    Factor B. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes

    Overuse for commercial, recreational, scientific, or educational purposes is not a threat to the nene. The exploitation of nene for food by Hawaiians and non-Polynesian settlers is believed to have been responsible for substantial population declines in lowland areas, and hunting was a major limiting factor until a hunting ban was passed and enforced in 1907 (Banko et al. 1999, p. 23). Human visitation for recreational activities at parks and refuges where nene occur often results in human interactions with nene. Habituation to humans and feeding of nene at these recreational areas create the potential for injury or mortality of nene by attracting nene to hazardous areas where collisions, predation, and accidents frequently occur (Banko et al. 1999, p. 24). For discussion and analysis of the population-level impacts to nene caused by direct and indirect human impacts, see our discussion under Factor E, below. While the historical effects of overuse were factors that led to the original listing of nene as federally endangered in 1967, current regulations and enforcement are in place to protect nene from overuse. Therefore, overuse does not constitute a threat to nene now or in the foreseeable future.

    Factor C. Disease or Predation Disease

    Numerous parasites and diseases have been documented in captive and wild nene (van Riper and van Riper 1985, pp. 308, 312, 333; Bailey and Black 1995, p. 62; Work et al. 2002, p. 1,040). Recent data attributing the primary causes of death in nene to disease have identified parasites, bacterial and fungal infection, and, less commonly, avian pox (virus) and avian botulism (Work et al. 2015, pp. 690-694). Avian influenza and West Nile Virus (WNV), if established, also have the potential to affect the nene population.

    Toxoplasma gondii is a protozoan parasite transmitted by domestic cats (Felis catus) that has historically caused mortality in native Hawaiian birds, and is the most commonly encountered infectious disease in nene, primarily affecting adult birds (Work et al. 2015, p. 691). As herbivores, nene are likely exposed by eating transport hosts such as insects or ingesting oocysts (reproductive phase of the parasite) in contaminated water, soil, or vegetation (Work et al. 2016, p. 255). For mortalities attributed to T. gondii, the cause of death is typically diagnosed as inflammation or lesions on multiple organs. The detection of T. gondii in over 30 percent of feral cats sampled (n=67) at 2 locations on Mauna Kea, Hawaii Island (Danner et al. 2007, p. 316) suggests that exposure to and infection by T. gondii is likely to continue and to play a role in mortality of nene. This parasite may also have non-lethal effects on nene, making them more susceptible to trauma caused by vehicle collisions, as a high prevalence of T. gondii was observed in road kills of other species (Work et al. 2016, p. 256). Widespread exposure to T. gondii was detected in wild birds from Kauai, Maui, and Molokai (21 to 48 percent of birds examined) (Work et al. 2016, p. 255). However, the parasite is implicated as the cause of death in a relatively low proportion (4 percent) in the number of nene mortalities submitted to the U.S. Geological Survey National Wildlife Health Center (USGS-NWHC) between 1992 and 2013 (Work et al. 2015, pp. 690-694). This suggests that although exposure to T. gondii is widespread and ongoing, the threat of disease caused by T. gondii is expected to be low in magnitude and is not likely to have significant population-level impacts on nene.

    Omphalitis, a bacterial infection of the umbilical stump, has been found to cause mortality in both wild and captive nene goslings (USFWS 2004, p. 34). Work et al. (2015, supplemental material) recently diagnosed omphalitis at low levels (2 percent, 7 of 300) in a number of nene mortalities submitted to the USGS-NWHC.

    Avian pox is caused by a virus that causes inflammation of the skin, and in severe cases may result in large scabs that block circulation and lead to the loss of digits or entire limbs or lead to blindness, the inability to eat, or death (USGS-NWHC 2017a, in litt.). Pox-like lesions have been reported in adult birds in captivity (Kear and Brown 1976, pp. 133-134; Kear and Berger 1980, pp. 42, 86, 138), and pox scars on many birds in the wild on Hawaii and Maui indicate that avian pox is common, but generally not fatal to nene (Banko et al. 1999, pp. 20-21). Avian pox was recently found in an emaciated bird, but was judged to be a secondary finding (Work et al. 2015, p. 693).

    Avian malaria is caused by the microscopic parasitic protozoan, Plasmodium relictum. Avian malaria was diagnosed as the cause of death in only 1 out of 300 nene mortalities submitted to the USGS-NWHC for which the cause of death was identified (Work et al. 2015, supplemental material). Avian malaria has also been reported in at least one wild bird on Maui, but it does not appear that avian malaria is causing significant declines of nene populations (Banko et al. 1999, pp. 20-21). However, concern about the potential to transfer unique regional strains of avian malaria between islands has resulted in quarantine testing of any nene to be moved inter-island to ensure they are not infected; during the recent Nene Relocation Project, birds from Kauai in which Plasmodium was detected were kept on Kauai and not translocated to Maui or Hawaii Island (Kauai Lagoons 2015, in litt.).

    Avian botulism is a paralytic disease caused by the ingestion of a natural toxin produced by the bacteria, Clostridium botulinum. Birds either ingest the toxin directly or may eat invertebrates (e.g., non-biting midges, fly larvae) containing the toxin (USGS-NWHC 2017b, in litt.). Botulism outbreaks may occur year-round with distinct seasonal patterns based on location (Uyehara 2016b, in litt.).

    Botulism has been found on Kauai, Oahu, Molokai, Maui, and Hawaii Island (USGS-NWHC 2017b, in litt.). Avian botulism was diagnosed as the cause of death in only 4 out of 300 nene mortalities submitted to the USGS-NWHC for which the cause of death was identified (Work et al. 2015, supplemental material). Also, between 2011 and 2015, only 1 percent of the 866 cases of botulism involved nene in the Kauai NWR Complex (Uyehara 2016b, in litt.). Avian botulism is thought to pose a minor threat to nene because they tend to forage on grasses rather than aquatic invertebrates (Work et al. 2015, p. 693).

    The spread of avian influenza and West Nile Virus (WNV) in North America has serious implications if either arrives in Hawaii. West Nile Virus is transmitted by adults of various species of Culex mosquitoes, some of which are present in Hawaii (USGS-NWHC 2017c, in litt.). When an infected mosquito bites an animal, the virus enters the animal and infects the central nervous system. West Nile Virus causes mortality in domestic geese, with goslings more susceptible than adults (Austin et al. 2004, p. 117). In experimentally infected young domestic geese, the New York strain of WNV caused reduced activity, weight loss, abnormal neck and spine posture, and death with accompanying encephalitis and myocarditis (Swayne et al. 2001, p. 753). Of the three known cases of nene infected with WNV on the U.S. mainland, all were adults and one died (Jarvi et al. 2008, p. 5,339).

    Avian influenza has been reported to cause mortality in naturally infected Canada geese in Asia and Europe (Ellis et al. 2004, p. 496; Teifke et al. 2007, p. 138). Additional studies have shown that immunologically naïve, juvenile birds are particularly susceptible (Pasick et al. 2007, p. 1,827). Migratory birds have been implicated in the long-range spread of highly pathogenic avian influenza (HPAI), a virus (H5N1) from Asia to Europe and Africa. In 2006, the U.S. Departments of the Interior (DOI) and Agriculture (USDA) conducted surveillance for the presence of highly pathogenic avian influenza H5N1 in wild birds in the Pacific islands (American Samoa, Guam, Hawaii, Marshall Islands, Northern Mariana Islands, and Palau) (USGS-NWHC 2017d, in litt.). Over 4,000 specimens were collected from waterfowl, shorebirds, and other species from throughout the Pacific, and no highly pathogenic avian influenza was detected (Work and Eismueller 2007, p. 2).

    The Hawaii Field Station of the USGS-NWHC continues to work with wildlife managers to monitor the impact of diseases and other mortality factors on nene and other wildlife populations. Cats are the sole known lifecycle host for the protozoan that causes toxoplasmosis. Reduction in the number of feral cats will reduce the likelihood of exposure of nene to the disease. Ongoing conservation measures in nene breeding areas, such as predator control and predator-proof fences that exclude cats, reduce, but do not eliminate, the risk of exposure to toxoplasmosis due to the abundance and range of feral cat populations.

    Predation

    Predation by introduced mammals continues to be a major factor limiting nene breeding success and survival. Predators known to take nene eggs, goslings, or adults include dogs (Canis familiaris), feral pigs (Sus domesticus), feral cats, small Indian mongooses (Herpestes auropunctatus), and black, Norway, and Pacific rats (Rattus, R. norvegicus, and R. exulans, respectively) (Hoshide et al. 1990, pp. 153-154; Baker and Baker 1995, p. 8; Banko et al. 1999, pp. 11-12; Hilton 2016, in litt.). In addition, cattle egrets (Bubulcus ibis) and barn owls (Tyto alba) are suspected to occasionally take goslings. When flightless and during molt, goslings and adults are extremely vulnerable to predation by any of these predators (USFWS 2004, p. 21). Yellow crazy ants (Anoplolepis gracilipes) and little fire ants (Solenopsis papuana) also have the potential to disturb incubating females and goslings (Plentovich 2017, in litt.).

    The small Indian mongoose was introduced to the Hawaiian archipelago in 1883, and quickly became widespread on Oahu, Molokai, Maui, and Hawaii Island, from sea level to elevations as high as 7,000 ft (2,130 m) (Tomich 1986, pp. 93-94). Kauai remained mongoose-free when a planned introduction was aborted; however, there have been almost 350 reported sightings since 1968, and in 1976, a road-killed, lactating female was found on the island near Eleele (KISC 2016a, in litt.; Phillips and Lucey 2016). In 2012 and 2016, a total of three mongooses were captured in Lihue, Kauai, at air cargo and harbor facilities, as well as a resort adjacent to airport property (KISC 2016b, in litt.). The numerous sightings and four confirmed individuals have led to the perception that mongoose are now established on Kauai. While the recent arrivals of mongoose are troubling, there remains scant biological evidence that a breeding population of mongoose occurs on Kauai.

    Mongooses are believed to be the most serious egg predator and are responsible for the most nene nest failures on Hawaii and Maui (Hoshide et al. 1990, p. 154; Banko 1992, pp. 101-102; Black and Banko 1994, p. 400; Baker and Baker 1995, p. 20). Mongoose also prey upon goslings and adults (Kear and Berger 1980, p. 57; Banko and Elder 1990, p. 122; K. Misajon 2016, pers. comm.). The success of the nene on Kauai demonstrates that mongooses may constitute the most significant predator elsewhere (Banko et al. 1999, p. 25). Despite relying on limited data, recent estimates of nest success on Kauai for private lands (75 percent) and the Kauai NWR Complex (82 percent) are far greater than estimates for both Haleakala National Park (62 percent) and Hawaii Volcanoes National Park (58 percent) (Hu, unpublished as cited in Banko et al. 1999; Bailey and Tamayose 2016, in litt.; Uyehara 2016a, in litt.).

    Introduced European pigs hybridized with smaller, domesticated Polynesian pigs; became feral; and invaded forested areas, especially mesic and wet forests, from low to high elevations, and are present on all the main Hawaiian Islands except Lanai and Kahoolawe, where they have been eradicated (Tomich 1986, pp. 120-121; Munro 2007, p. 85). Pigs may roam over nearly the entire extent of the range of nene. Pigs are known to take eggs, goslings, and possibly adults (Kear and Berger 1980, p. 57; Banko and Elder 1990, p. 122; Baker and Baker 1995, p. 20; K. Misajon 2016, pers. comm.). The presence of pigs can also attract feral dogs that may then prey upon nene (NPS 2016, p. 2).

    Three species of introduced rats occur in the Hawaiian Islands. Studies of Pacific rat DNA suggest they first appeared in the islands along with emigrants from the Marquesas Islands (French Polynesia) in about 400 A.D., with a second introduction around 1100 A.D. (Ziegler 2002, p. 315). The black rat and the Norway rat arrived in the islands more recently, as stowaways on ships sometime in the late 19th century (Atkinson and Atkinson 2000, p. 25). The Pacific rat and the black rat are primarily found in rural and remote areas of Hawaii, in dry to wet habitats, while the Norway rat is typically found in urban areas or agricultural fields (Tomich 1986, p. 41). The black rat is widely distributed throughout the main Hawaiian Islands and can be found in a range of ecosystems and as high as 9,000 ft (2,700 m), but it is most common at low- to mid-elevations (Tomich 1986, pp. 38-40). Sugihara (1997, p. 194) found both black and Pacific rats up to 7,000 ft (2,000 m) on Maui, but found the Norway rat only at lower elevations. Rats are known to prey upon nene eggs and goslings (Kear and Berger 1980, p. 57; Hoshide et al. 1990, p. 154; Baker and Baker 1995, p. 20).

    Cats were introduced to Hawaii in the early 1800s, and are present on all the main Hawaiian Islands (Tomich 1986, p. 101). Although cats are more common at lower elevations, there are populations in areas completely isolated from human presence, including montane forests and alpine areas of Maui and Hawaii Island (Lindsey et al. 2009, p. 277; Scott et al. 1986, p. 363). Cats take nene goslings and adults, and have been observed moving eggs in nests, so they may also prey upon eggs (Kear and Berger 1980, p. 57; Banko and Elder 1990, p. 122; Baker and Baker 1995, p. 20; Zaun 2008, in litt.).

    Dogs in Hawaii are products of animals brought by Polynesians and later introductions of mixed or selected breeds from all over the world (Tomich 1986, p. 52). Nene are particularly vulnerable to dogs because they have little instinctive fear of them. Along with mongooses, dogs are a significant predator of adult nene, and may also take goslings (Kear and Berger 1980, p. 57; Banko and Elder 1990, p. 122).

    Cattle egrets and barn owls were both introduced into Hawaii in the late 1950s, in an attempt to address agricultural pests on farms and ranches. In Hawaii, cattle egrets are now widespread on all the main islands, as well as on the islands and atolls of the Northwestern Hawaiian Islands. Barn owls occur on all of the main Hawaiian Islands in all habitat types, from sea level to upper elevation forests, and in recent years have been sighted with increasing frequency on offshore islets. Barn owls and cattle egrets may also take goslings occasionally (Banko et al. 1999, p. 11; S. Franklin 2016, pers. comm.).

    The yellow crazy ant occurs in low- to mid-elevations (less than 2,000 ft (600 m)) in rocky areas of moderate rainfall (less than 100 in (250 cm) annually) (Reimer et al. 1990, p. 42). The tropical fire ant (Solenopsis geminata) is found in drier areas of all the main Hawaiian islands (Wong and Wong 1988, p. 175). Both species are nonnative and are known to cause significant injuries and developmental problems in adults and chicks of ground-nesting seabirds, and are expected to have similar effects on nene (S. Plentovich 2017, pers. comm.).

    A variety of predator control programs have been initiated in areas where nene currently reside. Since 1994, Haleakala National Park has conducted intensive control of introduced predators using trapping and toxicants (Bailey and Tamayose 2016, in litt.). Ongoing efforts on the different islands include predator control programs aimed at mongooses, dogs, feral cats, rodents, and pigs. Some open-top pens previously used to rear captive nene on National Park Service lands are now often used to provide predator-free nesting and brooding habitat for free-flying pairs or as temporary holding pens for sick or injured birds (Hawaii Volcanoes National Park 2016, in litt.).

    Nene population numbers at Hawaii Volcanoes National Park increased during a 10-year period (1989 to 1999), probably in part because of intensive predator control (Rave et al. 2005, p. 14). Since then, ongoing predator trapping focused in the primary breeding and brooding areas at Hawaii Volcanoes National Park during the breeding season has likely contributed to the overall increase in nene observed. The general increase in population at Haleakala National Park over the last 25 years is likely a response to increased habitat management—first, the removal of feral ungulates and control to “near zero” populations; later, the additional intensive control of introduced predators (Bailey and Tamayose 2016, in litt.). At Hawaii Volcanoes National Park, various fence designs have been used successfully to exclude mongooses, cats, dogs, and pigs. Predator control programs are currently conducted in most areas where nene nest, including Hanalei, Kilauea Point, and Hakalau Forest NWRs; Haleakala and Hawaii Volcanoes National Parks; and Piiholo Ranch, Haleakala Ranch (Waiopae), and Puu O Hoku Ranch on Molokai.

    While the predator control programs have proven effective in localized areas, recovery of nene is dependent on more aggressive and widespread control of introduced predators. Despite documentation of the impact of mongooses, dogs, feral cats, rodents, and pigs on nene, there are relatively few predator control programs, and they are not being implemented over areas large enough to elicit a population response by native species (Scott et al. 2001, p. 11). Known control techniques should be applied at all habitats needed to recover nene (USFWS 2004, p. 41).

    Summary of Factor C

    Diseases such as toxoplasmosis, omphalitis, avian pox, avian malaria, and avian botulism cause low levels of mortality in nene populations. Avian influenza and WNV are not currently established in Hawaii, but could cause mortality of nene should they become established in the future. Measures to control feral cat populations will reduce the risk of exposure of nene to toxoplasmosis. Monitoring the occurrence of disease in nene populations, as well as early detection of avian botulism outbreaks or cases of avian influenza or WNV should minimize the impacts of these threats. Based on the above analysis, we conclude that disease will continue to affect nene now and in the foreseeable future, but it is not a significant threat because, at current and future levels, disease is not likely to cause population-level impacts.

    Predation by introduced mammals is the most serious threat to nene. Predation by mongooses, dogs, cats, rats, and feral pigs continues to affect all life stages of nene (eggs, goslings, or adults), negatively impacting breeding success and survival. Predator control measures have improved survival and reproductive success and contributed to population increases in managed areas. However, these efforts are localized and overall predator populations are not being reduced; therefore, predators can readily recolonize an area. In addition, as nene populations expand into areas in their former historical range, such as lowland areas, they will likely encounter higher predator populations in and around human-occupied urban, suburban, and agricultural areas. Predation by cattle egrets and barn owls, and disturbance by ants, may result in injury or mortality of nene; however, this does not constitute a threat to nene, as such predation/disturbance occurs infrequently and is not known to have population-level impacts. Based on our analysis of the available information, we conclude that predation by introduced mammals is a threat to nene now and in the foreseeable future.

    Factor D. The Inadequacy of Existing Regulatory Mechanisms

    The following section includes a discussion of Federal, State, and local laws, regulations, or treaties that apply to nene. It includes laws and regulations for Federal land management agencies and State and Federal regulatory authorities affecting land use or other relevant management.

    Federal Laws and Regulations

    National Wildlife Refuge System Improvement Act of 1997. The National Wildlife Refuge System Improvement Act of 1997 (Pub. L. 105-57, October 9, 1997) established the protection of biodiversity as the primary purpose of the National Wildlife Refuge (NWR) System. This has led to various management actions to benefit federally listed species, including development of comprehensive conservation plans (CCPs) on NWRs. The CCPs typically set goals and list needed actions to protect and enhance populations of key wildlife species on NWR lands. Where nene occur on NWR lands (Hanalei, Kilauea Point, Hakalau Forest, Kealia Pond, and James Campbell NWRs), their habitats in these areas are protected from large-scale loss or degradation due to the Service's mission “to administer a national network of lands and waters for the conservation, management, and where appropriate, restoration of the fish, wildlife, and plant resources and their habitats within the United States for the benefit of present and future generations of Americans” (16 U.S.C. 668dd(2)). National Wildlife Refuges must also conduct section 7 consultations under the Act (discussed below) for any refuge activity that may result in adverse effects to nene.

    Hanalei NWR was established in 1972, to aid in the recovery of the four endangered Hawaiian waterbirds and nene (Endangered Species Conservation Act of 1969; 16 U.S.C. 668aa et seq.). Kilauea Point NWR, originally established in 1985 to enhance seabird nesting colonies, was later expanded to include adjacent lands to be managed for the protection and recovery of endangered waterbirds and nene (The Kilauea Point National Wildlife Refuge Expansion Act of 2004, Pub. L. 108-481, December 23, 2004; 16 U.S.C. 668dd note). Approximately two-thirds of the Kauai nene population is supported by the Hanalei and Kilauea NWRs. The Kilauea Point CCP includes the following goals: (1) Protect, enhance, and manage the coastal ecosystem to meet the life-history needs of migratory seabirds and threatened and endangered species; (2) restore and/or enhance and manage populations of migratory seabirds and threatened and endangered species; and (3) gather scientific information (surveys, research, and assessments) to support adaptive management decisions (USFWS 2016, pp. 2:19-31). Both Hanalei and Kilauea Point NWRs conduct ongoing predator control and habitat improvement and enhancement actions.

    At Hakalau Forest NWR, a new population was created with the reintroduction of 33 captive-bred nene between 1996 and 2003. Since then, Hakalau Forest NWR has supported approximately 20 to 25 percent of the nene population on Hawaii Island. The Hakalau Forest CCP includes the following goals: (1) Protect and maintain grassland habitat to support nene population recovery; and (2) collect scientific information (inventories, monitoring, research, assessments) necessary to support adaptive management decisions on both units of the Hakalau Forest NWR (USFWS 2010, pp. 2:30-37).

    Kealia Pond NWR, on the south-central coast of Maui, was established in 1992, to conserve habitat for the endangered Hawaiian stilt (Himantopus mexicanus knudseni) and Hawaiian coot (Fulica alai). Nene are occasionally observed at Kealia Pond NWR (USFWS 2011b, p. 4:14).

    James Campbell NWR on the northern shore of Oahu was created in 1976, also for the conservation of endangered Hawaiian waterbirds, and later expanded in 2005, to include conservation of additional threatened and endangered species, migratory birds, and their habitats (USFWS 2011c, p. 1:1). In 2014, a pair of nene arrived on Oahu, nested at James Campbell NWR, and produced three offspring. Both parents and one of the offspring have since died, leaving the two remaining offspring on NWR and adjacent lands.

    Hawaii National Park Act of 1916. Congress established Hawaii National Park (later to become, separately, Hawaii Volcanoes National Park and Haleakala National Park) on August 1, 1916 (39 Stat. 432), “for the benefit and enjoyment of the people of the United States” and to provide for, “the preservation from injury of all timber, birds, mineral deposits, and natural curiosities or wonders within said park, and their retention in their natural condition as nearly as possible” (16 U.S.C. 394). Since that time, the enabling legislation of the park has been modified several times, both to establish the national parks on the islands of Hawaii and Maui as separate parks and to expand the boundary of Hawaii Volcanoes National Park. In 1960, Congress authorized the establishment of the Haleakala National Park (Pub. L. 86-744, September 13, 1960); the park was established the following year. Haleakala National Park, on the eastern side of Maui, encompasses 33,222 acres (ac) (13,444 hectares (ha)), of which 24,719 ac (10,003 ha) are designated wilderness (74 percent of the park). Hawaii Volcanoes National Park protects 330,086 ac (133,581 ha) of public land on Mauna Loa and Kilauea volcanoes on the southeastern side of Hawaii Island. Haleakala National Park and Hawaii Volcanoes National Park have supported nene recovery actions since the 1960s and 1970s, respectively. Past and ongoing actions include releases of captive-bred nene, habitat management (e.g., predator control, feral ungulate control, nonnative plant species control), provision of supplemental food and water, monitoring, and outreach and education.

    Migratory Bird Treaty Act (MBTA). Nene are a protected species under the MBTA (16 U.S.C. 703-712, 50 CFR 10.13), a domestic law that implements the U.S. commitment to four international conventions (with Canada, Japan, Mexico, and Russia) for the protection of shared migratory bird resources.

    State Laws and Regulations

    The Hawaii Endangered Species law (Hawaii Revised Statutes (HRS) 195D) prohibits take, possession, sale, transport, or commerce in designated species. This State law also recognizes as endangered or threatened those species determined to be endangered or threatened pursuant to the Federal Endangered Species Act. This Hawaii law states that a threatened species (under the Act) or an indigenous species may be determined to be an endangered species under State law. Protection of these species is under the authority of Hawaii's DLNR, and under administrative rule (Hawaii Administrative Rules (HAR) 13-124-11). Incidental take of threatened and endangered species may be authorized through the issuance of a temporary license as part of a safe harbor agreement (SHA) or habitat conservation plan (HCP) (HRS 195D-21, HCPs; 195D-22, SHAs). Although this State law can address threats such as habitat modification, collisions, and other human-caused mortality through HCPs that address the effects of individual projects or programs on nene, it does not address the pervasive threats to the nene posed by introduced mammalian predators. DLNR also maintains HAR 13-124-3, which protects indigenous and introduced wildlife.

    The importation of nondomestic animals, including microorganisms, is regulated by a permit system (HAR 4-71) managed through the Hawaii Department of Agriculture (HDOA). The list of nondomestic animals (HAR 4-71) is defined by providing a list of those animals considered domestic: Dog, cat, horse, ass (burro or donkey), cattle and beefalo, sheep, goat, swine, pot-bellied pig, alpaca, llama, rabbit, chicken, turkey, pigeon, duck, geese, and their hybrids. The HDOA's Board of Agriculture maintains lists of nondomestic animals that are prohibited from entry, animals without entry restrictions, or those that require a permit for import and possession. The HDOA requires a permit to import animals, and conditionally approves entry for individual possession, businesses (e.g., pets and resale trade, retail sales, and food consumption), or institutions.

    Under statutory authorities provided by HRS title 12, subtitle 4, 183D Wildlife, the DLNR maintains HAR title 13, chapter 124 (2014), which defines, at section 13-124-2, “injurious wildlife” as “any species or subspecies of animal except game birds and game mammals which is known to be harmful to agriculture, aquaculture, indigenous wildlife or plants, or constitute a nuisance or health hazard and is listed in the exhibit entitled Exhibit 5, Chapter 13-124, List of Species of Injurious Wildlife in Hawaii”. Under HAR section 13-124-3(c), “no person shall, or attempt to: (1) Release injurious wildlife into the wild; (2) transport live injurious wildlife to islands or locations within the State where they are not already established and living in a wild state; or (3) export any such species, or the dead body or parts thereof, from the State.” Permits for these actions may be considered on a case-by-case basis. The small Indian mongoose, a serious predator of nene, is included in Exhibit 5, chapter 13-124, List of Species of Injurious Wildlife in Hawaii. While this HAR may address intentional attempts to transport or release mongooses, there is evidence that inspection and biosecurity measures at inter-island ports may not adequately address their unintentional introduction (e.g., as stowaways in cargo) to islands such as Kauai and Lanai that are thought to be mongoose-free. Currently, there is no biosecurity at Honolulu ports focused on mongoose. At Nawiliwili Harbor (Kauai), low-level interdiction was conducted until about 2015, but has since been discontinued (B. Phillips 2017, pers. comm.). There are plans to reinitiate this in the coming months. Similarly, there is no interdiction being conducted on Lanai for mongoose.

    Predation by mongooses is a serious threat to nene (see Factor C discussion, above). Currently, the nene population on Kauai represents approximately 43 percent of the total Statewide population. Establishment of a breeding population of mongoose on Kauai would significantly reduce the survival and reproduction of nene on Kauai, and as a result, significantly increase the risk of extinction of nene. Although based on limited data, nene nesting success estimates on unmanaged lands on Kauai (i.e., no predator control) are higher than managed lands on Maui and Hawaii; this difference may indicate the additional impact of nest predation by mongoose, which are not found on Kauai (Amidon 2017).

    Critical biosecurity gaps that reduce the effectiveness of animal introduction controls include inadequate staffing, facilities, and equipment for Federal and State inspectors devoted to invasive species interdiction (Hawaii Legislative Reference Bureau 2002; USDA-APHIS-PPQ 2010; Coordinating Group on Alien Pest Species (CGAPS) 2009). In recognition of these gaps, a State law has been passed that allows the HDOA to collect fees for quarantine inspection of freight entering Hawaii (Act 36 (2011) HRS 150A-5.3). Hawaii legislation enacted in 2011 (House Bill 1568) requires commercial harbors and airports to provide biosecurity and inspection facilities to facilitate the movement of cargo through ports. This bill is a significant step toward optimizing biosecurity capacity in the State, but only time will determine its effectiveness. The Hawaii Interagency Biosecurity Plan (2017) is a 10-year strategy that addresses Hawaii's most critical biosecurity gaps and provides a coordinated interagency path that includes policies and implementation tasks in four main areas: (1) Pre-border; (2) border; (3) post-border; and (4) education and awareness. Overall, there is an ongoing need for all civilian and military port and airport operations and construction to implement biosecurity measures in order to prevent the introduction or inter-island transportation of additional predators and diseases that could impact nene.

    Feral pigs pose the threat of predation to nene (see Factor C discussion, above). The State provides opportunities to the public to hunt game mammals (ungulates, including feral pigs) on 91 State-designated public hunting areas (within 45 units) on all the main Hawaiian Islands except Kahoolawe and Niihau (HAR-DLNR 2010; see HAR title 13, chapter 123; DLNR 2009, pp. 28-29). The State's management objectives for game mammals range from maximizing public hunting opportunities (i.e., “sustained yield”) in some areas to removal by State staff or their designees from other areas (HAR-DLNR 2010; see HAR title 13, chapter 123; DLNR 2009, pp. 28-29). Nene populations exist in areas where habitat is used for game enhancement and game populations are maintained at levels for public hunting (HAR-DLNR 2010; see HAR title 13, chapter 123; see Nene Use Area Maps in USFWS 2017). Public hunting areas are defined, but not fenced, and game mammals have unrestricted access to most areas across the landscape, regardless of underlying land-use designation. While fences are sometimes built to protect certain areas from impacts of game mammals, the current number and locations of fences are not adequate to address the threat of habitat degradation and predation on the nene in unfenced areas throughout its range. There are no other State regulations than those described above that address protection of nene and their habitat from feral pigs.

    Local Mechanisms

    Local groups are working to implement actions urgently needed to address the importation of nonnative, invasive species. We discuss the primary groups below.

    CGAPS, a partnership of managers from Federal, State, County, and private agencies and organizations involved in invasive species work in Hawaii, was formed in 1995, in an effort to coordinate policy and funding decisions, improve communication, increase collaboration, and promote public awareness (CGAPS 2009). This group facilitated the formation of the Hawaii Invasive Species Council (HISC), which was created by gubernatorial executive order in 2002, to coordinate local initiatives for the prevention of introduction and for control of invasive species by providing policy-level direction and planning for the State departments responsible for invasive species issues (CGAPS 2009). In 2003, the Governor signed into law Act 85, which conveys statutory authority to the HISC to continue to coordinate approaches among the various State and Federal agencies, and international and local initiatives, for the prevention and control of invasive species (DLNR 2003, p. 3-15; HISC 2009, in litt.; HRS 194-2). Reduced funding beginning in 2009 restricted State funding support of HISC, resulting in a serious setback of conservation efforts (HISC 2009, 2015, in litt.) and increasing the likelihood of new invasive plants and animals becoming established in nene habitat.

    The Hawaii Association of Watershed Partnerships (HAWP) comprises 11 separate partnerships on 6 Hawaiian Islands. These partnerships are voluntary alliances of public and private landowners, “committed to the common value of protecting forested watersheds for water recharge, conservation, and other ecosystem services through collaborative management” (http://hawp.org/partnerships). Funding for the partnerships is provided through a variety of State and Federal sources, public and private grants, and in-kind services provided by the partners and volunteers. However, since 2009, decreases in available funding have limited the positive contributions of these groups to implementing the laws and rules that can protect and control threats to nene.

    These three partnerships, CGAPS, HISC, and HAWP, are collaborative measures that attempt to address issues that are not resolved by individual State and Federal agencies. The capacity of State and Federal agencies and their nongovernmental partners in Hawaii to provide sufficient inspection services, enforce regulations, and mitigate or monitor the effects of nonnative species is limited due to the large number of taxa currently causing damage (CGAPS 2009). Many invasive, nonnative species established in Hawaii currently have limited but expanding ranges, and they cause considerable concern. Resources available to reduce the spread of these species and counter their negative effects are limited. Control efforts are focused on a few invasive species that cause significant economic or environmental damage to commercial crops and public and private lands. Comprehensive control of an array of nonnative species and management to reduce disturbance regimes that favor them remain limited in scope. If current levels of funding and regulatory support for control of nonnative species are maintained, the Service expects existing programs to continue to exclude, or, on a very limited basis, control these species only in the highest priority areas. Threats from established nonnative species to nene are ongoing and are expected to continue into the future.

    Summary of Factor D

    Based on our analysis of existing regulatory mechanisms, there is a diverse network of laws and regulations that provide some protections to the nene and its habitat. Nene habitat that occurs on NWRs is protected under the National Wildlife Refuge System Improvement Act of 1997 and section 7 of the Endangered Species Act. Nene habitat is similarly protected on lands owned by the National Park Service. Additionally, nene receive protection under State law in Hawaii.

    As a conservation reliant species, nene are expected to require ongoing management to address the ongoing threat of predation by introduced mammals such as mongooses, dogs, cats, rats, and pigs (Factor C). Although State and Federal regulatory mechanisms have not prevented the introduction into Hawaii of nonnative predators or their spread between islands, with sustained management commitments, these mechanisms could be an important tool to ameliorate this threat.

    On the basis of the information provided above, existing State and Federal regulatory mechanisms are not preventing the introduction of nonnative species and pathogens into Hawaii via interstate and international pathways, or via intrastate movement of nonnative species between islands and watersheds. These mechanisms also do not adequately address the current threats posed to the nene by established nonnative species. Therefore, we conclude State and Federal regulatory mechanisms do not adequately address the threats to nene and their habitats from potential new introductions of nonnative species or continued expansion of existing nonnative species populations on and between islands and watersheds. However, with sustained management commitment, these mechanisms could be tools to ameliorate these threats.

    Factor E. Other Natural or Manmade Factors Affecting Its Continued Existence Low Genetic Variation

    Studies have shown that nene went through a prehistoric population bottleneck and have very low genetic diversity (Paxinos et al. 2002, p. 1,827; Rave et al. 1999, p. 40; Veillet et al. 2008, pp. 1,158—1,160). Low levels of genetic diversity have been found in wild and captive nene populations, and there is some evidence that fertility and gosling survival have declined in captivity as inbreeding has increased (Rave et al. 1994, p. 747; Rave 1995, p. 87, Rave et al. 1999, p. 40). A condition known as “hairy-down” caused by a recessive gene, which creates a cottony appearance and impairs cold resistance in goslings, has been observed in captive and wild nene (USFWS 2004, pp. 33-34); such goslings observed in the wild at Hawaii Volcanoes National Park have not survived (K. Misajon 2017, pers. comm.).

    Rave (1995, p. 87) found that nene on Kauai had a significantly higher genetic similarity coefficient distribution (i.e., the lowest level of genetic variation) of all birds sampled from six wild populations on Hawaii, Maui, and Kauai. Despite low genetic diversity and high levels of inbreeding, nene numbers have increased dramatically on Kauai. Thus, low genetic variation may not be a factor limiting reproductive success of the nene on Kauai (Rave 1995, p. 88).

    Wind Energy Facilities

    A significant number of nene mortalities have been reported at wind energy facilities. Nene collide with the towers or collide with or are struck by blades of wind turbine generators (WTGs). The diameter of rotor blades (approximately 330 ft (100 m)) and combined height of WTGs (up to 428 ft (131 m)) create large obstacles for nene during flight. On Maui, 3 facilities with a total of 40 WTGs are in operation, Kaheawa Wind Power I (20 WTGs) and Kaheawa Wind Power II (12 WTGs) in western Maui, and Auwahi Wind (8 WTGs) in southeastern Maui. From 2006 to 2016, a total of 26 nene fatalities and an adjusted take of 50 nene have been reported at the three Maui wind energy facilities (DOFAW 2016, in litt.). Take is adjusted by adding estimates of take undetected by search efforts, indirect take (e.g., eggs or goslings taken by parental deaths in the current year), and lost productivity in future years. All three Maui facilities have approved habitat conservation plans (HCPs) and have received Federal incidental take permits and State incidental take licenses authorizing the total combined take of 95 nene during the 20-year period of operation for each project. The HCPs include the following conservation measures to offset the amount of authorized take: (1) Establish an additional population of 75 nene at an off-site location (Haleakala Ranch), (2) conduct predator control and habitat enhancement at the additional population site, (3) conduct on-site habitat restoration, (4) conduct on-site monitoring of nene, and (5) fund nene conservation actions at Haleakala National Park (DOFAW 2016, in litt.).

    On Hawaii Island, two facilities with a total of 30 WTGs are in operation in Hawi (16 WTGs) and South Point (14 WTGs); however, there are no reports of nene being killed at these facilities (D. Sether 2017, pers. comm.). Based on the proximity of these facilities to areas used by nene, there is the potential for collisions. On Oahu, a total of 42 WTGs are in operation at Kawailoa Wind Power (30 WTGs) and Kahuku Wind Power (12 WTGs), and an additional 9 to 10 WTGs are proposed at the Na Pua Makani project in the Kahuku area. Na Pua Makani has submitted a draft HCP and requested incidental take for nene due to the proximity of the proposed wind energy project to James Campbell NWR, where the nene have been frequently observed. Based on the recent occurrence of only two individuals, which failed to breed successfully in 2016, wind energy facilities on Oahu are not a current threat, but represent a potential future threat should a breeding population of nene become established. On Maui and Hawaii Island, we expect that collisions at wind energy facilities will continue to result in take of nene now and in the foreseeable future; however, conservation measures in approved and permitted HCPs are expected to offset any population-level impacts to the species.

    Human Activities

    Nene are attracted to feeding opportunities provided by mowed grass and human handouts, and can become tame and unafraid of human activity, making them vulnerable to the impacts of various human activities. These activities include direct harm, such as that caused by vehicles and golf ball strikes, as well as possible disturbance by hikers, hunters, and other outdoor recreationists (Banko et al. 1999, pp. 23-24; Rave et al. 2005, p. 12; USFWS 2011a, p. 11; Hawaii Volcanoes National Park 2015, in litt.; Mello 2017, in litt.). Nene may also be impacted by human activities through the application of pesticides and other contaminants, ingestion of plastics and lead, collisions with stationary or moving structures or objects, entanglement in artificial hazards (e.g., fences, fishing nets, erosion control material), disturbance at nest and roost sites, and mortality or disruption of family groups through direct and indirect human activities (Banko et al. 1999, pp. 23-24; USFWS 2004, pp. 30-31; Work et al. 2015, pp. 692-693).

    Vehicle Collisions

    Vehicle collisions have been an ongoing cause of nene mortality (Hoshide et al. 1990, p. 153; Rave et al. 2005, p. 15; Work et al. 2015, pp. 692-693). In many areas, nene habitat is bisected by roads, with nesting and roosting on one side, foraging on the other side. This poses a serious threat, particularly during the breeding season, when adults walk goslings across roads. The greatest number of vehicle collisions occurs between December and April, during the peak of the breeding and molting season. It is during this time of year that both adults and goslings are flightless for a period of time and are especially vulnerable. The problem is worse in some areas because birds are attracted to handouts by visitors and the young shoots of recently manicured or irrigated lawns of roadsides and golf courses. Nene are often seen foraging along the edges of highways and ditches as a result of regular mowing and runoff from the pavement creating especially desirable grass in these areas. The impact is further exacerbated when, after a nene is killed on a road, the remaining family members are often unwilling to leave the body, resulting in multiple birds being killed over a short period of time (DLNR 2016, in litt.) and potential loss of future reproductive output from breeding pairs.

    In the past, a number of mortalities caused by vehicle collisions were reported in Hawaii Volcanoes National Park (41) and in Haleakala National Park (14) (USFWS 2004, pp. 30-31; Rave et al. 2005, p. 12). More recent data indicate this is an ongoing issue both inside and outside park boundaries on Maui and Hawaii Island; the average annual number of nene killed by cars at Haleakala National Park was 1.2 ± 1.2 (from 1988 to 2011), and occurred at an average annual rate of 3 ± 2.39 at Hawaii Volcanoes National Park and an adjacent State highway (from 2009 to 2016) (Bailey and Tamayose 2016, in litt.; Misajon 2017, in litt.). Mortality of nene due to vehicle collisions has also been a continual problem on Kauai (Uyehara 2016c, in litt.). Over 50 nene were struck and killed by cars across the roadways of Kauai in 2 years (Kauai DOFAW 2016, in litt.). On Kauai, typically the majority of vehicle strikes occur in Hanalei and Kilauea, where the largest proportion of the Kauai population occurs; however, the most recent strikes are occurring on the western side of the island.

    The National Park Service (NPS) is actively implementing aggressive traffic-calming measures (Haleakala National Park 2014, in litt.; USFWS 2016, in litt.). A press release is sent out at the beginning of the nesting season, asking park visitors to drive carefully. Posters are displayed at car rental agencies asking visitors to drive carefully when visiting the park. “Nene Crossing” postcards with “Slow Down” messages in different languages are handed out to vehicles entering the park. Cones, signs, and a radar trailer are placed along roadsides where nene are frequently seen. Permanent “Nene Crossing” signs alert drivers to the potential for birds in the primary area(s) of concern, and temporary crossing signs are deployed when birds are observed frequenting specific road side sites. The NPS conducts regular outreach and education to raise visitor awareness of nene near roads. The Kauai DOFAW conducts educational outreach and has signs placed to encourage driving at reduced speeds. The conservation measures reduce but do not eliminate the threat of vehicle collisions. Based on the available information, we conclude vehicle collisions are an ongoing cause of nene injury and mortality on Kauai, Maui, and Hawaii.

    Natural and Artificial Hazards

    Nene can become entangled or trapped in artificial hazards (e.g., old grass-covered fence wire; fishing line, predator traps; spilled tar) and some natural hazards (lava tube openings or deep depressions in ash deposits) (Banko et al. 1999, p. 24). Goslings occasionally drown in stock ponds, water troughs, and other water sources where exit to land is difficult (Banko et al. 1999, p. 24). Predator traps outfitted with protective guards have been effective at reducing the incidence of injury to goslings (NRCS 2007, p. 6).

    The use of certain fencing and erosion control materials has resulted in entanglement of nene with the potential to cause impaired movement, injury, and in some cases mortality. Over 2 years, a total of 44 nene (27 adults and 17 hatch-year birds) in the Poipu/Koloa population on Kauai have been observed with woven threads from erosion control slope matting wrapped around their legs at a single construction site (Kauai DOFAW 2016, in litt.). Once the material is wrapped around their legs, nene have an increased risk of becoming entangled with other objects, experiencing skin lacerations, and having the circulation cut from their legs leading to infection and the death of the limb (Kauai DOFAW 2015, in litt.). Not all instances of entanglement result in harm to nene, as birds may free themselves from threads. Nine of the 44 entangled nene have been observed with constriction or swelling on their legs; 3 have received rehabilitation and been released; and 1 was euthanized due to injuries sustained from the material. Kauai DOFAW is working with the landowners to minimize impacts and has recommended that the use of this type of erosion control matting be discontinued.

    Summary of Factor E

    As nene populations continue to recover and increase in number and range, they will be subject to increased human interactions in and around urban, suburban, agricultural, and recreational areas. Vehicle collisions are an ongoing cause of nene injury and mortality; however, we do not have evidence that this factor is limiting population sizes. We acknowledge that increasing nene population sizes could result in increased mortality rates in the future, especially for those populations near areas with human presence. While vehicle collisions could potentially impact certain populations, they do not constitute a threat to the entire species now, and we do not expect them to be a threat in the foreseeable future. Artificial hazards that result in entanglement or drowning occur at low frequency and thus are not expected to result in population-level impacts. Collisions at wind energy facilities will result in take of nene now and in the foreseeable future; however, conservation measures in approved and permitted HCPs are expected to offset any population-level impacts to the species. While nene exhibit low levels of genetic variation, this does not appear to be a factor limiting reproductive success. Thus, low genetic variation is not a threat to nene now or in the foreseeable future.

    Overall Summary of Factors Affecting Nene

    The current Statewide nene population estimate is 2,855 (NRAG 2017). The population on Kauai, estimated at 1,107 birds, is stable and increasing, sustained by ongoing predator control and habitat management (NRAG 2017). Nene on Kauai exhibit successful breeding, likely due to abundant food in managed grasslands and the absence of mongooses, which are a significant nest predator on other islands. Between 2011 and 2016, 640 nene were relocated from Kauai to Maui and Hawaii Island. The Kauai population is expected to continue to exhibit an increasing trend. On Maui, the current population estimate is 616, with approximately half of the population in Haleakala National Park, and the remainder is distributed across areas of western Maui, southern Maui, and the northwestern slopes of Haleakala. The population at Haleakala National Park shows a general increasing trend with numbers consistently above 200 birds since intensive habitat management (feral ungulate and predator control) measures were initiated in the 1990s. On Hawaii Island, the current population estimate is 1,095, which includes 592 birds relocated from Kauai (NRAG 2017). Prior to the addition of nene from Kauai, population estimates on Hawaii Island ranged between 331 and 611, and in general show an increasing trend during the previous 10-year period since the last major release of 53 birds in 2001. For many years, the largest population of nene on Hawaii Island has occurred in Hawaii Volcanoes National Park. Over the last 10 years, population estimates at Hawaii Volcanoes National Park have remained relatively constant (ranging between 200 and 250 birds), sustained by ongoing predator control and habitat management. On Molokai, the current population estimate of 35 (NRAG 2017), down from an estimate of 78 in 2015, is likely due to predation (Franklin 2017, in litt.). While nene on Molokai have bred successfully, periodically low fledging success has been reported due to the high mortality of nestlings, possibly due to overcrowding at the release site. Estimates of the population on Molokai have fluctuated widely since the reintroduction of 74 birds was completed in 2004. Nene are considered a conservation-reliant species, especially on Maui and Hawaii Island, where populations are spread across a large area and exposed to ongoing threats of predation, habitat loss (development, feral ungulates, nonnative plants), and disease (Reed et al. 2012, p. 888). At a minimum, current management levels must be continued to sustain current population trends.

    Threats to nene from habitat destruction or modification (Factor A) remain and will likely continue into the foreseeable future in the form of urbanization, agricultural activities, habitat alteration by feral ungulates and nonnative plants, and drought. These factors contribute to a lack of suitable breeding and flocking habitat and, in combination with predation (Factor C) and human activities (Factor E), continue to threaten nene and limit expansion of nene populations. Some habitats are expected to be affected by habitat changes resulting from the effects of climate change (Factor A). Overutilization (Factor B) is not a threat. Diseases (Factor C) such as toxoplasmosis, avian malaria, omphalitis, and avian botulism are not currently known to contribute significantly to mortality in nene. Thus, we do not consider disease to be a threat. Predation (Factor C) by introduced mammals, including mongooses, dogs, cats, rats, and pigs, is a significant limiting factor for nene populations now and into the foreseeable future. Therefore, we consider predation to be a threat. Existing regulatory mechanisms, including those to prevent predation will be an important component of ongoing management of nene as a conservation reliant species, but do not currently adequately ameliorate threats and will require continuing commitment to implementation (Factor D). Human activities such as vehicle collisions, artificial hazards, and other human interactions (Factor E) continue to result in injury and mortality; while the individual impacts of these hazards do not constitute threats with population-level impacts to nene, they collectively and in combination with other factors (Factors A, C, and D) constitute an ongoing threat.

    Proposed Determination of Species Status Introduction

    Section 4 of the Act (16 U.S.C. 1533), and its implementing regulations at 50 CFR part 424, set forth the procedures for determining whether a species is an endangered species or threatened species and should be included on the Federal Lists of Endangered and Threatened Wildlife and Plants (listed). The Act defines an endangered species as any species that is “in danger of extinction throughout all or a significant portion of its range” and a threatened species as any species “that is likely to become endangered throughout all or a significant portion of its range within the foreseeable future.” On July 1, 2014, we published a final policy interpreting the phrase “significant portion of its range” (SPR) (79 FR 37578). In our policy, we interpret the phrase “significant portion of its range” in the Act's definitions of “endangered species” and “threatened species” to provide an independent basis for listing a species in its entirety; thus there are two situations (or factual bases) under which a species would qualify for listing: A species may be in danger of extinction or likely to become so in the foreseeable future throughout all of its range; or a species may be in danger of extinction or likely to become so throughout a significant portion of its range. If a species is in danger of extinction throughout an SPR, the species, is an “endangered species.” The same analysis applies to “threatened species.”

    The SPR policy is applied to all status determinations, including analyses for the purposes of making listing, delisting, and reclassification determinations. Under section 4(a)(1) of the Act, we determine whether a species is an endangered species or threatened species because of any one or a combination of the following: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. These five factors apply whether we are analyzing the species' status throughout all of its range or throughout a significant portion of its range.

    Determination of Status Throughout All of Its Range

    As required by the Act, we considered the five factors in assessing whether nene is endangered or threatened throughout all of its range. We carefully examined the best scientific and commercial information available regarding the past, present, and future threats faced by nene. We reviewed the information available in our files and other available published and unpublished information, and we consulted with recognized experts and State agencies. The current statewide nene population estimate is 2,855 individuals, with the wild populations on the islands of Hawaii, Maui, Molokai, Kauai, and Oahu estimated to have 1,095, 616, 35, 1,107, and 2 individuals, respectively. Populations on Kauai, Maui, and Hawaii are exhibiting a stable or increasing trend, while the nene population on Molokai is experiencing a fluctuation in population numbers. Continuation of current population trends into the future is dependent on, at a minimum, maintaining current levels of management (e.g., predator control and habitat enhancement). Nene are still affected by predation (Factor C), loss and degradation of habitat (Factor A), and effects of human activities (Factor E); and some subpopulations may potentially be affected in the future by habitat changes resulting from the effects of climate change such as increases in drought, hurricanes, or sea level rise (Factor A). Regulatory mechanisms do not adequately address these threats. While threat intensity and management needs vary somewhat across the range of the species (for example, the current lack of an established mongoose population on Kauai influences predator control strategies there), nene populations on islands throughout the range of the species continue to be reliant on active conservation management and require adequate implementation of regulatory mechanisms, and all remain vulnerable to threats that could cause substantial population declines in the foreseeable future. Despite the existing regulatory mechanisms and conservation efforts (Factor D), the factors identified above continue to affect the nene such that it is likely to become in danger of extinction within the foreseeable future throughout all of its range. Thus, after assessing the best available information, we conclude that the nene is not currently in danger of extinction, but is likely to become in danger of extinction within the foreseeable future throughout all of its range.

    Determination of Status Throughout a Significant Portion of Its Range

    Because we have determined that the nene is likely to become in danger of extinction in the foreseeable future throughout all of its range, per the Service's Final Policy on Interpretation of the Phrase “Significant Portion of Its Range” in the Endangered Species Act's Definitions of “Endangered Species” and “Threatened Species” (79 FR 37578, July 1, 2014) (SPR Policy), no portion of the species' range can be “significant” for the purposes of the definitions of endangered and threatened species. Therefore, we do not need to conduct an analysis of whether there is any significant portion of its range because the species is likely to become in danger of extinction in the foreseeable future.

    Proposed Determination of Status

    We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the nene. Based on the analysis above and given increases in population numbers due to recovery efforts, we conclude the nene does not currently meet the Act's definition of an endangered species in that it is not in danger of extinction throughout all of its range. Although population numbers have increased, our analysis indicates that because of significant remaining threats, the species remains likely to become in danger of extinction in the foreseeable future throughout all of its range. Because the species is likely to become in danger of extinction in the foreseeable future throughout all of its range, the species meets the definition of a threatened species. Therefore, we propose to reclassify the nene from an endangered species to a threatened species.

    This proposal, if made final, would revise 50 CFR 17.11(h) to reclassify nene from endangered to threatened. Reclassification of nene from endangered to threatened is due to the substantial efforts made by Federal, State, and local government agencies and private landowners to recover the species. Adoption of this proposed rule would formally recognize that this species is no longer in danger of extinction throughout all or a significant portion of its range and, therefore, does not meet the definition of endangered, but is still impacted by predation, habitat loss and degradation, and inadequacy of regulatory mechanisms to the extent that the species meets the definition of a threatened species under the Act.

    Proposed 4(d) Rule

    Whenever a species is listed as threatened, the Act allows promulgation of a rule under section 4(d). Section 4(d) of the Act states that “the Secretary shall issue such regulations as he deems necessary and advisable to provide for the conservation” of species listed as threatened species. Conservation is defined in the Act to mean “to use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to [the Act] are no longer necessary.” The purposes of the Act are to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, to provide a program for the conservation of endangered species and threatened species, and to take such steps as may be appropriate to achieve the purposes of the treaties and conventions set forth in the Act. For any threatened fish and wildlife species, the Secretary has the discretion to prohibit by regulation any action prohibited under section 9(a)(1) of the Act. Exercising this discretion, the Service has by regulation (50 CFR 17.31) applied the prohibitions in section 9(a)(1) to all threatened wildlife species except for those for which a rule has been promulgated under section 4(d) of the Act. A 4(d) rule may include some or all of the prohibitions under section 9(a)(1), as set out at 50 CFR 17.21, but also may be less or more restrictive than those general provisions.

    Section 9 of the Act prohibits the taking of any federally listed endangered species, including nene. Section 3(19) defines “take” to mean “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” Service regulations (50 CFR 17.3) define “harm” to include significant habitat modification or degradation which actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering. Harass is defined at 50 CFR 17.3 as an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding, or sheltering. Section 9 also prohibits import, export, and sale of endangered species in interstate or foreign commerce. The Act provides for civil and criminal penalties for the unlawful taking of listed species or other violations of section 9.

    Under 50 CFR 17.32, permits may be issued for certain actions affecting threatened fish and wildlife species that would otherwise be prohibited under the Act. The processes and criteria for such permit issuance are governed by 50 CFR 17.32, unless otherwise provided in a 4(d) rule. If an activity that may affect the nene is not covered in this proposed 4(d) rule and the activity would result in an act that would be otherwise prohibited, authorization under 50 CFR 17.32 would be required. In addition, nothing in this 4(d) rule affects in any way other provisions of the Act, such as the designation of critical habitat under section 4, recovery planning provisions of section 4(f), and consultation requirements under section 7.

    For the nene, the Service has determined that a 4(d) rule is appropriate. We propose to issue a rule for this species under section 4(d) of the Act as a means to provide continued protection from take and to facilitate conservation of nene and expansion of their range by increasing flexibility in management activities. This proposed 4(d) rule would apply only if and when the Service finalizes the reclassification of the nene as threatened. We propose a 4(d) rule for nene, as described below.

    Anyone taking, attempting to take, or otherwise possessing a nene, or parts thereof, in violation of section 9 of the Act would still be subject to a penalty under section 11 of the Act, except for the actions that would be covered under the proposed 4(d) rule. Under section 7 of the Act, Federal agencies must ensure that any actions they authorize, fund, or carry out are not likely to jeopardize the continued existence of nene.

    Under the proposed 4(d) rule, take will generally continue to be prohibited, but the following forms of take would be allowed under the Act:

    • Take by landowners or their agents conducting intentional harassment in the form of hazing or other deterrent measures not likely to cause direct injury or mortality;

    • Take that is incidental to conducting lawful control of introduced predators or habitat management activities for nene; and

    • Take by authorized law enforcement officers for the purposes of aiding or euthanizing sick, injured, or orphaned nene; disposing of dead specimens; and salvaging a dead specimen that may be used for scientific study.

    The proposed 4(d) rule targets activities to facilitate conservation and management of nene where they currently occur and may occur in the future through increased flexibility by eliminating the Federal take prohibition under certain conditions. These activities are intended to encourage support for the occurrence of nene in areas with land use practices compatible with the conservation of nene, and to redirect nene use away from areas that do not support the conservation of nene (see Justification, below).

    As nene increase in number and range, they are facing increased interaction and potential conflict with the human environment. In addition, the nene recently translocated from Kauai to Maui and Hawaii Island have expanded into new areas on these islands, often in close proximity to human populations. Nene are known to use and interact with human-modified environments (such as wind farms, airports, resorts, golf courses, agricultural operations, residential areas, parks, public recreation areas, and transportation routes) during feeding, breeding, molting, and sheltering activities, as well as during seasonal intra-island movements. In these environments, nene may be subject to injury or mortality as a result of activities such as vehicle collisions, collisions with wind turbines, golf ball strikes, predation or attack by unrestrained pets, entanglement with foreign materials, and ingestion of herbicides and pesticides associated with construction, maintenance, or normal business activities in these areas. The proposed 4(d) rule would not change the prohibition on any take of nene associated with these activities, although hazing to move nene away from these activities would be allowed under the 4(d) rule. For these types of activities on non-Federal lands or those without a Federal nexus where section 7 would provide incidental take exemption, landowners or project proponents may develop an HCP and apply for an incidental take permit to address any potential take of the nene to avoid violating the prohibition on take.

    Intentional Harassment Not Likely To Cause Mortality or Direct Injury

    Hazing and other persistent deterrence actions are management strategies that may be used to address wildlife conflict issues. As nene populations increase, particularly in heavily human-populated lowland areas, they may often come into conflict with human activities. For example, nene are known to use a variety of human-modified areas including wind farms, airports, resorts, golf courses, agricultural operations, residential areas, parks, public recreation areas, and transportation routes. Nene using these areas may present a conflict with normal business activities or cause crop depredation or safety hazards to humans. Humans may also inadvertently harm nene by feeding them, which could result in nene showing aggressive behaviors towards humans, being injured or killed by vehicles or humans, or being placed at increased risk from predators. Methods such as hazing are necessary to prevent and address these potential human-nene conflicts, allowing nene to coexist with areas of established human activity and providing for continued public support of nene recovery actions.

    Any deterrence activity that does not create a likelihood of injury by significantly disrupting normal nene behavioral patterns such as breeding, feeding, or sheltering is not take and is not prohibited under the Act.

    If an activity creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns such as breeding, feeding, and sheltering, then the activity has the potential to cause take in the form of harassment. Hazing of nene is considered intentional harassment, which creates the likelihood of injury and has been prohibited under section 9 of the Act. Under this proposed 4(d) rule, hazing and other deterrence activities that may cause indirect injury to nene by disrupting normal behavioral patterns, but are not likely to be lethal or cause direct injury (including the need for veterinary care or rehabilitation), would be classified as intentional harassment not likely to cause direct injury or mortality, and would be allowed under Federal law. Such activities may include the use of predator effigies (including raptor kites, predator replicas, etc.), commercial chemical repellents, ultrasonic repellers, audio deterrents (noisemakers, pyrotechnics, etc.), herding or harassing with trained or tethered dogs, or access control (including netting, fencing, etc.). This proposed 4(d) rule would not apply to scenarios involving lethal or directly injurious take. For example, laser irradiation used for hazing may cause ocular damage resulting in temporary or permanent loss of visual acuity or blindness (Oregon State University 2017, in litt.), impairing the ability of nene to feed or avoid predators or other hazards (e.g., vehicle collisions). Feral dogs or unrestrained pets are known to take nene adults and goslings, and nene are particularly vulnerable to dogs because they have little instinctive fear of them (NRCS 2007, p. 6). Therefore, the proposed rule would not cover hazing methods such as lasers or untrained and untethered dogs.

    Intentional harassment activities not likely to cause direct injury or mortality that are addressed in this proposed 4(d) rule are recommended to be implemented prior to the nene breeding season (September through April) wherever feasible. If, during the breeding season, a landowner desires to conduct an action that would intentionally harass nene to address nene loafing or foraging in a given area, a qualified biologist familiar with the nesting behavior of nene must survey in and around the area to determine whether a nest or goslings are present. If a nest or families with goslings is discovered, a qualified biologist must be notified and the following measures implemented to avoid disturbance of nests and broods: (1) No disruptive activities may occur within a 100-foot (30-meter) buffer around all active nests and broods until the goslings have fledged; and (2) brooding adults (i.e., adults with an active nest or goslings) or adults in molt may not be subject to intentional harassment at any time. In general, any observation of nene nest(s) or gosling(s) should be reported to the Service and authorized State wildlife officials within 72 hours. Additionally, follow-up surveys of the property by qualified biologists should be arranged by the landowner to assess the status of birds present.

    Predator Control and Habitat Management

    Control of introduced predators and habitat management are identified as two primary recovery actions for nene (USFWS 2004, p. 52). Control of predators (e.g., mongooses, dogs, feral pigs, cats, rats, cattle egrets, and barn owls) may be conducted to eliminate or reduce predation on nene during all life stages. These predators are managed using a variety of methods, including fencing, trapping, shooting, and toxicants. All methods must be used in compliance with State and Federal regulations. In addition to the application of the above tools, predator control as defined here includes activities related to predator control, such as performing efficacy surveys, trap checks, and maintenance duties. Predator control may occur year-round or during prescribed periods. During approved predator control activities, incidental take of nene may occur in the following manner: (1) Injury or death to goslings, juveniles, or adults from accidental trapping; (2) injury or death due to fence strikes caused from introduction of equipment or materials in a managed area; and (3) injury or death due to ingestion of chemicals approved for use in predator control. Under this proposed 4(d) rule, take resulting from actions implementing predator control activities to benefit nene would not be prohibited as long as reasonable care is practiced to minimize the effects of such taking. Reasonable care may include but is not limited to: (1) Procuring and implementing technical assistance from a qualified biologist(s) on predator control methods and protocols prior to application of methods; (2) compliance with all applicable regulations and following principles of integrated pest management; and (3) judicious use of methods and tool adaptations to reduce the likelihood that nene would ingest bait, interact with mechanical devices, or be injured or die from an interaction with mechanical devices.

    Nene productivity and survival are currently limited by insufficient nutritional resources due to habitat degradation and the limited availability of suitable habitat due to habitat loss and fragmentation, especially in lowland areas (USFWS 2004, pp. 29-30). Active habitat management is necessary for populations of nene to be sustained or expanded without the continued release of captive-bred birds. Active habitat management in protected nesting and brooding areas should improve productivity and survival, as well as attract birds to areas that can be protected during sensitive life stages. Habitat management actions may include: (1) Mowing, weeding, fertilizing, herbicide application, and irrigating existing pasture areas for conservation purposes; (2) planting native food resources; (3) providing watering areas, such as water units or ponds or catchments, designed to be safe for goslings and flightless/molting adults; (4) providing temporary supplemental feeding and watering stations when appropriate, such as under poor quality forage or extreme conditions (e.g., drought or fire); (5) if mechanical mowing of pastures is not feasible, alternative methods of keeping grass short, such as grazing; or (6) large-scale restoration of native habitat (e.g., feral ungulate control, fencing).

    In the course of habitat management activities, incidental take of nene may occur in the following manner: (1) Accidental crushing of non-flighted juveniles, goslings, or nests with eggs; (2) injury or death due to collisions with vehicles and equipment; (3) injury or death due to ingestion of plants sprayed with herbicides or ingestion of fertilizers; (4) injury or death due to entanglement with landscaping materials or choking on foreign materials; and (5) injury or death of goslings if goslings are separated from parents because of disturbance by restoration activities (e.g., use of heavy equipment or mechanized tools). Under this proposed 4(d) rule, take resulting from habitat management activities would not be prohibited as long as reasonable care is practiced to minimize the effects of such taking. Reasonable care may include but is not limited to: (1) Procuring and implementing technical assistance from a qualified biologist on habitat management activities prior to implementation; and (2) best efforts to minimize nene exposure to hazards (e.g., predation, habituation to feeding, entanglement, vehicle collisions, golf ball strikes).

    Additional Authorizations for Law Enforcement Officers

    The increased interaction of nene with the human environment also increases the likelihood of encounters with injured, sick, or dead nene. This proposed 4(d) rule would exempt take of nene by law enforcement officers in consultation with State wildlife biologists to provide aid to injured or sick nene, or disposal or salvage of a dead nene. Law enforcement officers would be allowed take of nene for the following purposes: Aiding or euthanizing sick, injured, or orphaned nene; disposing of a dead specimen; and salvaging a dead specimen that may be used for scientific study.

    Justification

    As the nene population increases in number and range, nene are facing increased interaction and potential conflict with the human environment. If finalized, the reclassification of the nene to threatened status would allow employees of State conservation agencies operating a conservation program pursuant to the terms of a cooperative agreement with the Service in accordance with section 6(c) of the Act, and who are designated by their agencies for such purposes, and who are acting in the course of their official duties, to take nene in the course of carrying out conservation programs (see 50 CFR 17.31(b)). However, there are many activities carried out or managed by landowners or their agents that help reduce conflict or benefit the recovery of nene, and thereby facilitate the expansion of nene populations, but would not be exempted from take prohibitions without a 4(d) rule. These activities include intentional harassment not likely to result in mortality or direct injury, predator control, and habitat management. We anticipate that reclassification and implementation of a 4(d) rule would facilitate the expansion of nene into additional areas with land use practices compatible with the conservation of nene, and reduce the occurrence of nene in areas that do not support the conservation of nene across the landscape. The proposed 4(d) rule would provide incentives to landowners to support the occurrence of nene on their properties, as well as neighboring properties, by alleviating concerns about unauthorized take of nene.

    Except as outlined in the proposed 4(d) rule, prohibitions on take of nene would remain in effect. Harm or harassment that is likely to cause mortality or injury would continue to be prohibited because allowing these forms of take would be incompatible with restoring robust populations of nene and restoring and maintaining their habitat.

    This rule does not alter the requirements of the Act's section 7 or the interagency regulations implementing section 7 found at 50 CFR part 402. Federal actions covered by this rule would still be subject to section 7. The effect of this rule would be to exclude certain specific actions from the prohibitions on take so that such actions may not require an exemption through section 7(o) of the Act. However, under 50 CFR 402.14 the Federal agency would still need to consult with the Service if the proposed action may affect nene, unless the agency determines with written concurrence from the Service that the proposed action is not likely to adversely affect the nene.

    One of the limiting factors in the recovery of nene has been the concern of landowners regarding nene on their property due to the potential damage to agricultural crops and potential conflicts with normal business, recreational, and residential activities. Landowners express concern over their inability to prevent or address the damage or conflicts caused by nene because of the threat of penalties under the Act. Furthermore, State and Federal wildlife agencies expend resources addressing landowner complaints regarding potential nene damage to agricultural crops and conflicts during normal business, recreational, and residential activities. By providing more flexibility to the landowners regarding management of nene, we envision enhanced support for the conservation of the species, by providing a tool to reduce potential human-wildlife conflicts in areas incompatible with the conservation of nene, as well as promote expansion of the species' range into additional areas compatible with conservation of nene across the State.

    The proposed 4(d) rule would address intentional harassment of nene by landowners and their agents that is not likely to result in mortality or direct injury, and predator control and habitat management. Exempting targeted activities that may normally result in take under the prohibitions of the Act would increase the incentive for all landowners to support nene recovery and provide enhanced options for wildlife managers with respect to nene management, thereby encouraging their participation in recovery actions for nene.

    We believe the actions and activities that would be allowed under the proposed 4(d) rule, while they may cause some minimal level of harm or disturbance to individual nene, would not be expected to cause mortality or direct injury, would not adversely affect efforts to conserve and recover nene, and in fact should facilitate these efforts because they would make it easier to implement recovery actions and redirect nene activity toward lands that are managed for conservation.

    This proposed 4(d) rule would not be made final until we have reviewed and fully considered comments from the public and peer reviewers.

    Provisions of the 4(d) Rule

    The increased interaction of nene with the human environment increases the potential for nene to cause conflicts for business, agricultural, residential, and recreational activities, as well as the potential for nene to become habituated to hazardous areas (e.g., golf courses, roadways, parks, farms). Therefore, this proposed 4(d) rule would increase the flexibility of nene management for landowners and their agents by allowing take of nene resulting from intentional harassment of nene that is not likely to result in mortality or direct injury, control of introduced predators of nene, and nene habitat management activities.

    The proposed 4(d) rule only addresses Federal Endangered Species Act requirements, and would not change State law. It is our understanding that current State of Hawaii (HRS section 195D-4) law does not include the authority to issue regulations, equivalent to those under section 4(d) of the Act, to exempt take prohibitions for endangered and threatened species. Instead, State law requires the issuance of a temporary license for the take of endangered and threatened animal species, if the activity otherwise prohibited is: (1) For scientific purposes or to enhance the propagation or survival of the affected species (HRS 195D-4(f)); or (2) incidental to an otherwise lawful activity (HRS 195D-4(g)). Incidental take licenses require the development of an HCP (section 195D-21) or a safe harbor agreement (section 195D-22), and consultation with the State's Endangered Species Recovery Committee. Therefore, persons may need to obtain a State permit for some of the actions described in the proposed 4(d) rule. In addition, it is our understanding that current State regulations for endangered and threatened wildlife (HAR section 13-124, subchapter 3) do not allow permits for the intentional harassment or hazing of endangered or threatened species, thus changes to these State regulations may be necessary to allow the State to issue such permits.

    As explained above, the provisions included in this proposed 4(d) rule are necessary and advisable to provide for the conservation of the nene. Nothing in this proposed 4(d) rule would change in any way the recovery planning provisions of section 4(f) of the Act, the consultation requirements under section 7 of the Act, or the ability of the Service to enter into partnerships for the management and protection of the nene. However, the consultation process may be further streamlined through planned programmatic consultations between Federal agencies and the Service for these activities. We ask the public, particularly State agencies and other interested stakeholders that may be affected by the proposed 4(d) rule, to provide comments and suggestions regarding additional guidance and methods that the Service could provide or use, respectively, to streamline the implementation of this 4(d) rule (see Information Requested, above).

    Required Determinations Clarity of This Proposed Rule

    We are required by Executive Orders 12866 and 12988 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 ADDRESSES. 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 feel lists or tables would be useful, etc.

    National Environmental Policy Act

    We have determined that an environmental assessment or an environmental impact statement, as defined under the authority of the National Environmental Policy Act of 1969, need not be prepared in connection with regulations such as this. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244).

    References Cited

    A complete list of all references cited in this proposed rule is available at http://www.regulations.gov at Docket No. FWS-R1-ES-2017-0050, or upon request from the Pacific Islands Fish and Wildlife Office (see ADDRESSES).

    Authors

    The primary authors of this document are staff members of the Pacific Islands Fish and Wildlife Office in Honolulu, Hawaii (see FOR FURTHER INFORMATION CONTACT).

    List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.

    Proposed Regulation Promulgation

    Accordingly, we hereby propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:

    PART 17—ENDANGERED AND THREATENED WILDLIFE AND PLANTS 1. The authority citation for part 17 continues to read as follows: Authority:

    16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless otherwise noted.

    2. Amend § 17.11(h) by revising the entry for “Goose, Hawaiian” under BIRDS in the List of Endangered and Threatened Wildlife to read as follows:
    § 17.11 Endangered and threatened wildlife.

    (h) * * *

    Common name Scientific name Where listed Status Listing citations and applicable rules *         *         *         *         *         *         * Birds *         *         *         *         *         *         * Goose, Hawaiian (Nene) Branta sandvicensis Wherever found T 32 FR 4001, 3/11/1967; [Insert Federal Register citation when published as a final rule]; 50 CFR 17.41(d) 4d. *         *         *         *         *         *         *
    3. Amend § 17.41 by adding a paragraph (d) to read as follows:
    § 17.41 Special rules—birds.

    (d) Hawaiian goose (Branta sandvicensis) (nene).

    (1) General requirements. Except as expressly provided in paragraphs (d)(3) and (4) of this section, all provisions of § 17.21, except § 17.21(c)(5), and all provisions of § 17.31(b) apply to the nene.

    (2) Definitions. For the purposes of this paragraph:

    (i) Nene means the Hawaiian goose (Branta sandvicensis);

    (ii) Intentional harassment means an intentional act which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavior patterns which include, but are not limited to, breeding, feeding, or sheltering (Intentional harassment may include prior purposeful actions to attract, track, wait for, or search out nene, or purposeful actions to deter nene); and

    (iii) Person means a person as defined by section 3(13) of the Act.

    (3) Allowable forms of take of nene. Any person may take nene as a result of the following legally conducted activities in accordance with this paragraph.

    (i) Intentional harassment of nene that is not likely to cause direct injury or mortality. A person may harass nene on lands they own, rent, or lease, if the action is not likely to cause direct injury or mortality of nene. Techniques for such harassment may include the use of predator effigies (including raptor kites, predator replicas, etc.), commercial chemical repellents, ultrasonic repellers, audio deterrents (noisemakers, pyrotechnics, etc.), herding or harassing with trained or tethered dogs, or access control (including netting, fencing, etc.). Such harassment techniques must avoid causing direct injury or mortality to nene. Before implementation of any intentional harassment activities during the nene breeding season (September through April), a qualified biologist knowledgeable about the nesting behavior of nene must survey in and around the area to determine whether a nest or goslings are present. If a nest is discovered, the Service and authorized State wildlife officials must be notified within 72 hours (see paragraph (d)(5) of this section for contact information) and the following measures implemented to avoid disturbance of nests and broods:

    (A) No disruptive activities may occur within a 100-foot (30-meter) buffer around all active nests and broods until the goslings have fledged; and

    (B) Brooding adults (i.e., adults with an active nest or goslings) or adults in molt may not be subject to intentional harassment at any time.

    (ii) Nonnative predator control or habitat management activities. A person may incidentally take nene in the course of carrying out nonnative predator control or habitat management activities for conservation purposes if reasonable care is practiced to minimize effects to the nene.

    (A) Predator control activities include use of fencing, trapping, shooting, and toxicants to control predators, and related activities such as performing efficacy surveys, trap checks, and maintenance duties. Reasonable care for predator control activities may include, but is not limited to, procuring and implementing technical assistance from a qualified biologist on predator control methods and protocols prior to application of methods; compliance with all State and Federal regulations and guidelines for application of predator control methods; and judicious use of methods and tool adaptations to reduce the likelihood of nene ingesting bait, interacting with mechanical devices, or being injured or dying from interaction with mechanical devices.

    (B) Habitat management activities include mowing, weeding, fertilizing, herbicide application, and irrigating existing pasture areas for conservation purposes; planting native food resources; providing watering areas, such as water units or ponds or catchments, designed to be safe for goslings and flightless/molting adults; providing temporary supplemental feeding and watering stations when appropriate, such as under poor quality forage or extreme conditions (e.g., drought or fire); if mechanical mowing of pastures is not feasible, alternate methods of keeping grass short, such as grazing; and large-scale restoration of native habitat (e.g., feral ungulate control, fencing). Reasonable care for habitat management may include, but is not limited to, procuring and implementing technical assistance from a qualified biologist on habitat management activities, and best efforts to minimize nene exposure to hazards (e.g., predation, habituation to feeding, entanglement, vehicle collisions, golf ball strikes).

    (4) Additional authorizations for law enforcement officers. When acting in the course of their official duties, State and local government law enforcement officers, working in conjunction with authorized wildlife biologists and wildlife rehabilitators in the State of Hawaii, may take nene for the following purposes:

    (i) Aiding or euthanizing sick, injured, or orphaned nene;

    (ii) Disposing of a dead specimen; or

    (iii) Salvaging a dead specimen that may be used for scientific study.

    (5) Reporting and disposal requirements. Any injury or mortality of nene associated with the actions authorized under paragraphs (d)(3) and (4) of this section must be reported to the Service and authorized State wildlife officials within 72 hours, and specimens may be disposed of only in accordance with directions from the Service. Reports should be made to the Service's Law Enforcement Office at (808) 861-8525, or the Service's Pacific Islands Fish and Wildlife Office at (808) 792-9400. The State of Hawaii Department of Land and Natural Resources, Division of Forestry and Wildlife may be contacted at (808) 587-0166. The Service may allow additional reasonable time for reporting if access to these offices is limited due to closure.

    (6) Take authorized by permits. Any person with a valid permit issued by the Service under § 17.22 or § 17.32 may take nene, subject to all take limitations and other special terms and conditions of the permit.

    (7) Federal actions remain subject to section 7 of the Act. Nothing in this section relieves Federal agencies from compliance with the provisions of 16 U.S.C. 1536 or 50 CFR part 402.

    (8) Nothing in this section provides authorization for take of nene under the Migratory Bird Treaty Act (16 U.S.C. 703-712).

    Dated: February 7, 2018. James W. Kurth, Deputy Director, U.S. Fish and Wildlife Service, Exercising the Authority of the Director, U.S. Fish and Wildlife Service.
    [FR Doc. 2018-06571 Filed 3-30-18; 8:45 am] BILLING CODE 4333-15-P
    83 63 Monday, April 2, 2018 Notices DEPARTMENT OF AGRICULTURE Agricultural Research Service Notice of Intent To Renew Information Collection AGENCY:

    Agricultural Research Service, USDA.

    ACTION:

    Notice and request f